[Federal Register Volume 65, Number 12 (Wednesday, January 19, 2000)]
[Rules and Regulations]
[Pages 3070-3081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1066]



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Part V





Environmental Protection Agency





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40 CFR Part 247



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

  FederalRegister / Vol. 65, No. 12 / Wednesday, January 19, 2000 / 
Rules and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 247

[SWH-FRL-6524-2]
RIN 2050-AE23


Comprehensive Guideline for Procurement of Products Containing 
Recovered Materials

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency today is amending the May 
1, 1995 Comprehensive Procurement Guideline (CPG). EPA is designating 
18 new items that are or can be made with recovered materials. These 
items are carpet cushion; flowable fill; railroad grade crossing 
surfaces; park benches and picnic tables; playground equipment; food 
waste compost; plastic lumber landscaping timbers and posts; solid 
plastic binders; plastic clipboards; plastic file folders; plastic clip 
portfolios; plastic presentation folders; sorbents (i.e., absorbents 
and adsorbents); industrial drums; awards and plaques; mats; signage; 
and manual-grade strapping.
    The CPG implements section 6002 of the Resource Conservation and 
Recovery Act (RCRA) and section 502 of Executive Order 13101, which 
require EPA to designate items that are or can be made with recovered 
materials and to recommend practices that procuring agencies can use to 
procure designated items. Once EPA designates an item, any procuring 
agency that uses appropriated Federal funds to procure that item must 
purchase the item containing the highest percentage of recovered 
materials practicable. Today's action will use government purchasing 
power to stimulate the use of these materials in the manufacture of new 
products, thereby, fostering markets for materials recovered from solid 
waste.
    RCRA section 6002 provides certain limited exceptions to the 
general requirement to buy EPA-designated items. Under certain 
circumstances based on competition, price, availability, and 
performance, RCRA section 6002 does not require that procuring agencies 
purchase an item designated by EPA. In the May 1, 1995 CPG, EPA 
codified the RCRA section 6002 procurement requirements for the 
convenience of procuring agencies so they could find all of the RCRA 
section 6002 procurement provisions, as well as EPA's item 
designations, in one location. You can find these requirements at 40 
CFR Part 247.

EFFECTIVE DATE: This final rule is effective on January 19, 2001.

ADDRESSES: The public docket for this document is Docket F-1999-CP3F-
FFFFF. Documents related to today's notice are available for viewing in 
the RCRA Information Center (RIC), which is located at U.S. 
Environmental Protection Agency, Crystal Gateway One, 1235 Jefferson 
Davis Highway, Ground Floor, Arlington, VA 22202. The RIC is open from 
9 a.m. to 4 p.m., Monday through Friday, except for Federal holidays. 
To review docket materials, it is recommended that the public make an 
appointment by calling (703) 603-9230. Copies cost $0.15/page. The 
index and some supporting materials are available electronically. See 
Section IX of the ``Supplementary Information'' section below for 
information on accessing the documents electronically.

FOR FURTHER INFORMATION CONTACT: For general information contact the 
RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing 
impaired). In the Washington, DC metropolitan area, call (703) 412-9810 
or TDD (703) 412-3323. For technical information on individual item 
designations, contact Terry Grist at (703) 308-7257.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. What is the statutory authority for this amendment?
II. Who is affected by this amendment?
III. Why is EPA taking this action?
IV. What criteria did EPA use to select items for designation?
V. What are the definitions of terms used in today's action?
VI. What did commenters say about the proposed CPG III and draft 
RMAN III?
    A. General Comments
    1. Recordkeeping and Reporting
    2. Designation of Materials
    B. Comments on Proposed Item Designations
    1. Nylon Carpet with Backing Containing Recovered Materials
    2. Flowable Fill
    3. Railroad Grade Crossing Surfaces
    4. Sorbents
    C. Comments on Other Items Considered for Designation
VII. Where can agencies get information on the availability of EPA-
designated items?
VIII. Administrative Assessments
    A. Executive Order 12866: Regulatory Planning and Review
    1. Summary of Costs
    2. Product Cost
    3. Summary of Benefits
    B. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act
    C. Unfunded Mandates Reform Act of 1995 and Consultation with 
State, Local, and Tribal Governments
    D. Executive Order 13132: Federalism
    E. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    F. Executive Order 13045: Protection of Children from 
Environmental Risks and Safety Risks
    G. National Technology Transfer and Advancement Act of 1995
    H. Submission to Congress and the General Accounting Office
IX. Supporting Information and Accessing Internet

I. What Is the Statutory Authority for This Amendment?

    EPA (``the Agency'') is promulgating this amendment to the 
Comprehensive Procurement Guideline under the authority of sections 
2002(a) and 6002 of the Solid Waste Disposal Act, as amended by the 
Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 
U.S.C. 6912(a) and 6962. The Agency is also promulgating this amendment 
under section 502 of Executive Order (E.O.) 13101, ``Greening the 
Government Through Waste Prevention, Recycling, and Federal 
Acquisition,'' (63 FR 49643, September 14, 1998).

II. Who Is Affected by This Amendment?

    This action may potentially affect procuring agencies that purchase 
the following items: carpet cushion; flowable fill; railroad grade 
crossing surfaces; park benches and picnic tables; playground 
equipment; food waste compost; plastic lumber landscaping timbers and 
posts; solid plastic binders; plastic clipboards; plastic file folders; 
plastic clip portfolios; plastic presentation folders; sorbents (i.e., 
absorbents and adsorbents); awards and plaques; industrial drums; mats; 
signage; and manual-grade strapping. Under RCRA section 6002, procuring 
agencies include the following: (1) Any Federal agency; (2) any State 
or local agency using appropriated Federal funds for a procurement; or 
(3) any contractors of these agencies who are procuring these items for 
work they perform under the contract. See RCRA section 1004(17). The 
requirements of section 6002 apply to these procuring agencies only 
when the agencies procure designated items whose price exceeds $10,000 
or when the quantity of the item purchased in the previous year 
exceeded $10,000. A list of entities that this rule may cover is 
provided in Table 1.

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

    This table is not intended to be exhaustive. To determine whether 
this action applies to your procurement practices, you should carefully 
examine the applicability criteria in 40 CFR Sec. 247.12. If you have 
questions about whether this action applies to a particular entity, 
contact Terry Grist at (703) 308-7257.
    RCRA section 6002 applies to procuring agencies that use at least a 
portion of Federal funds to procure over $10,000 worth of a designated 
product in a given year. EPA estimates that this rule would apply to 35 
Federal agencies, all 56 states and territories and 1,900 local 
governments. EPA calculated the number of local governments that would 
be impacted by this rule based on information on the amount of Federal 
funds that are dispersed to specific counties. In addition, EPA assumed 
that 1,000 contractors may be affected. A description of this 
information is provided in the Economic Impact Analysis for today's 
rule.

III. Why Is EPA Taking This Action?

    Section 6002(e) of RCRA requires EPA to designate items that are or 
can be made with recovered materials and to recommend practices to help 
procuring agencies meet their obligations for procuring items 
designated under RCRA section 6002. RCRA requires that when a procuring 
agency purchase an EPA-designated item, the agency must purchase that 
item made of the highest percentage of recovered materials practicable.
    E.O. 13101 establishes the procedures EPA must follow when 
implementing RCRA section 6002(e). Section 502 of the Executive Order 
directs EPA to issue a Comprehensive Procurement Guideline (CPG) that 
designates items that are or can be made with recovered materials. At 
the same time EPA promulgates the CPG, the Agency must publish its 
recommended procurement practices for entities that purchase designated 
items in a related Recovered Materials Advisory Notice (RMAN). These 
practices must also provide recommendations for the content of 
recovered materials in the designated items. The Executive Order also 
directs EPA to update the CPG every two years and to issue RMANs 
periodically to reflect changing market conditions.
    The original CPG (CPG I) was published on May 1, 1995 (60 FR 
21370). It established eight product categories, designated 19 new 
items, and consolidated five earlier item designations. At the same 
time, EPA published the first RMAN (RMAN I) (60 FR 21386). On November 
13, 1997, EPA published CPG II (62 FR 60962), which designated an 
additional 12 items. At the same time, EPA published a RMAN II (62 FR 
60975). Paper Products RMANs were issued on May 29, 1996 (61 FR 26985) 
and June 8, 1998 (63 FR 31214).
    On August 26, 1998, EPA proposed to designate 19 additional items 
(CPG III) and published draft recommendations that provided 
recommendations for entities to use when purchasing items that contain 
recovered materials (RMAN III). See 63 FR 45558-45578 and 63 FR 45580-
45589, respectively. Today, EPA is designating 18 of the items proposed 
in CPG III. In CPG III, EPA proposed designating nylon carpet with 
backing containing recovered materials, but the Agency is not 
designating this item, at this time for the reasons explained below. 
The 18 newly designated items are listed below by product category.

Construction Products

    Carpet cushion
    Flowable fill
    Railroad grade crossing surfaces

Park and Recreation Products

    Park benches and picnic tables
    Playground equipment

Landscaping Products

    Food waste compost
    Plastic lumber landscaping timbers and posts

Non-Paper Office Products

    Solid plastic binders
    Plastic clipboards
    Plastic file folders
    Plastic clip portfolios
    Plastic presentation folders

Miscellaneous

    Sorbents
    Industrial drums
    Awards and plaques
    Mats
    Signage, including sign supports and posts
    Manual-grade strapping

IV. What Criteria Did EPA Use To Select Items for Designation?

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

[[Page 3072]]

designate in the CPG. Therefore, in CPG I, the Agency outlined the 
following criteria that it uses when it selects items for designation:
     Use of materials found in solid waste,
     Economic and technological feasibility and performance,
     Impact of government procurement,
     Availability and competition, and
     Other uses for recovered materials.

EPA discussed these criteria in the CPG I background documents and 
repeated that discussion, for reader convenience, in Section II of the 
document entitled, ``Proposed Comprehensive Procurement Guideline (CPG) 
III and Draft Recovered Materials Advisory Notice (RMAN) III--
Supporting Analyses.'' The RCRA public docket for the proposed CPG III 
rule, docket F-1998-CP3P-FFFFF contains this document.
    In CPG I, EPA stated that it had adopted two approaches for 
designating items that are made with recovered materials. For some 
items, such as floor tiles, the Agency designated broad categories and 
provided information in the RMAN about the appropriate applications or 
uses for the items. For other items, such as plastic trash bags, EPA 
designated specific items, and, in some instances, specified the types 
of recovered materials or applications to which the designation 
applies. The Agency explained the approaches that it took to designate 
items in the preamble to CPG I (60 FR 21373, May 1, 1995), and repeats 
them here for the convenience of the reader:

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

    The Agency understands that some procuring agencies may believe 
that designating a broad category of items in the CPG requires that 
they (1) procure all items included in such category with recovered 
materials content and (2) establish an affirmative procurement program 
for the entire category of items, even when specific items within the 
category do not meet the procuring agency's performance standards. RCRA 
clearly does not require such actions, as implemented through the CPG 
and the RMAN. RCRA section 6002 does not require a procuring agency to 
purchase items that contain recovered materials if the items are not 
available or if they do not meet a procuring agency's specifications or 
reasonable performance standards for the contemplated use. Further, 
section 6002 does not require a procuring agency to purchase such items 
if the item that contains recovered material is only available at an 
unreasonable price, or if purchasing such item does not maintain a 
reasonable level of competition. However, EPA stresses that, the 
procuring agency should seek to purchase the product made with highest 
percentage of recovered materials practicable if that product meets the 
procuring agency's performance requirements and all other factors are 
equal.
    The items designated today have all been evaluated against EPA's 
criteria. The Agency discusses these evaluations in the ``Background 
Document for the Final Comprehensive Procurement Guideline (CPG) III 
and Final Recovered Materials Advisory Notice (RMAN) III'' (hereafter 
referred to as the ``Background Document for the Final CPG III/RMAN 
III),'' which the Agency has placed in the docket for the final CPG III 
and RMAN III. You can also access the document electronically. (See 
Section IX below for Internet access directions.)

V. What Are the Definitions of Terms Used in Today's Action?

    Today, in 40 CFR 247.3, EPA is defining the following new item-
specific terms: carpet cushion; flowable fill; railroad grade crossing 
surfaces; park benches and picnic tables; playground equipment; food 
waste compost; plastic lumber landscaping timbers and posts; solid 
plastic binders; plastic clipboards; plastic file folders; plastic clip 
portfolios; plastic presentation folders; sorbents; industrial drums; 
awards and plaques; mats; signage; and manual-grade strapping. These 
definitions are based on industry definitions, such as the American 
Society for Testing and Materials (ASTM) or other industry standards, 
or describe the scope of items that the Agency is designating.
    For several items that the Agency is designating today, EPA 
recommends in the final RMAN III that procuring agencies use two 
different measures of the content of recovered materials: (1) A 
component of postconsumer recovered materials and (2) a component of 
total recovered materials. In these instances, EPA found that 
manufacturers were using both types of materials to manufacture the 
products. If the Agency recommended only postconsumer content levels, 
it would fail to meet the RCRA mandate to maximize the use of recovered 
materials, because the Agency would fail to acknowledge the 
contribution that manufacturers using other manufacturers' byproducts 
as feedstock have made to solid waste management.
    Because the recommendations for the items that the Agency is 
designating today use the terms ``postconsumer materials'' and 
``recovered materials,'' we repeat the definitions for these terms in 
this notice. The Agency provided these definitions in CPG I, and they 
are also provided at 40 CFR 247.3.

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

VI. What Did Commenters Say About the Proposed CPG III and Draft 
RMAN III?

    Forty commenters responded to the proposed CPG III and the draft 
RMAN III. These commenters represented various interests, including but 
not limited to Federal agencies, State agencies, local governments, 
product manufacturers, trade associations and product users.
    In this section, EPA discusses the major comments that commenters 
provided on the proposed CPG III. The most significant comments 
received on the draft RMAN III are discussed in the preamble to the 
notice of availability of the final RMAN III, which is published in the 
notices section of today's Federal Register. You can find a summary of 
all

[[Page 3073]]

comments and EPA's responses in the ``Background Document for the Final 
CPG III/RMAN III.''

A. General Comments

1. Recordkeeping and Reporting
    Comment: The U.S. Department of Energy (DOE) stated that it 
supports efforts to conserve resources by procuring products containing 
recovered materials. DOE stated that it has aggressively instituted an 
affirmative procurement program (APP) throughout the Department. DOE 
expressed its concern, however, that as the number of designated items 
increases, administrative costs of the program will become increasingly 
burdensome. DOE believes that as the reporting and data collection 
requirements continue to grow with additional designations, it is 
likely that the good will and positive environmental message of E.O. 
13101 will be misplaced. DOE suggested that EPA seek to revise the 
Federal Acquisition Regulation (FAR) to channel federal purchasing 
toward products with recycled content. This way, federal agencies could 
report progress in implementing the FAR language, as opposed to 
attempting to capture every purchase made by the federal government.
    Response: EPA has stated on many occasions that implementation of 
RCRA section 6002 must be consistent with other federal procurement 
law. For example, in Appendix II to the ``Background Document for 
Proposed Comprehensive Procurement Guideline (CPG) III and Draft 
Recovered Materials Advisory Notice (RMAN) III,'' April 1998, EPA 
stated the following:

    The purchase of recycled products under RCRA section 6002 must 
be consistent with other Federal procurement law, which requires 
that contracts be awarded to the lowest priced, responsive, 
responsible bidder * * *.
    On August 22, 1997, the Civilian Agency Acquisition Council 
(CAAC) and the Defense Acquisition Regulations Council (DARC) issued 
a final rule amending the Federal Acquisition Regulation (FAR) parts 
1, 10, 11, 13, 15, 23, 36, 42, and 52 to reflect the government's 
preference for the acquisition of environmentally-sound and 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.)

    On September 23, 1999, the CAAC and DARC proposed amendments to the 
FAR to clarify language relating to implementation of Executive Order 
13101. The proposed rule (64 FR 51656, September 23, 1999) also 
reorganizes various sections of the FAR to make environmental 
procurement policies easier to find and implement. Procuring agencies 
should consult the FAR for guidance on acquisitions issues.
    In addition, the Office of the Federal Environmental Executive has 
established a Reporting Workgroup and associated subcommittees to 
examine issues on recordkeeping and reporting. Topics of discussion 
have included the potential for using automated systems and electronic 
commerce, vendor reporting, as well as other alternatives. It is the 
intent of these efforts that, through the use of interagency 
workgroups, reporting and recordkeeping requirements can be effectively 
and efficiently implemented. Presumably, if these workgroups determine 
that additional FAR changes are warranted, these changes could be 
proposed through the process and procedures already established for 
amending the FAR.
2. Designation of Materials
    Comment: The Steel Recycling Institute (SRI) and the Steel 
Manufacturers Association submitted separate comments in support of 
EPA's proposed designation of items containing recovered steel (i.e., 
railroad grade crossing surfaces, park benches and picnic tables, 
playground equipment, industrial drums, signage, and strapping). SRI 
also urged EPA to recognize (i.e., designate) steel in general for its 
high recyclability and guaranteed recycled content. The American Iron 
and Steel Institute and the American Zinc Association also submitted 
comments endorsing the comments provided by SRI.
    SRI provided updated information for use in the ``Summary of 
Benefits'' section of this notice, stating that its latest study shows 
that for every ton of steel recycled, 1,400 pounds of coal and 120 
pounds of limestone are saved, versus 1,000 pounds of coal and 40 
pounds of limestone stated in EPA's notice (63 FR 45575).
    SRI also submitted comments on the recycled content of steel 
products. A summary of these comments and the Agency's response is 
discussed in RMAN III which is published in the notices section of 
today's Federal Register.
    Response: EPA agrees that steel, like many metals, is both 
recyclable and can contain recovered materials. EPA also agrees that 
steel, like many metals, is a waste management success story in terms 
of its recyclability, high recycling rate, and recovered materials 
content. EPA also applauds the steel industry's source reduction 
efforts to produce stronger, lighter weight steel, in response to 
customer demand. RCRA, however, specifically requires EPA to designate 
items that are or can be made with recovered materials, not the 
component materials used in those items. Accordingly, EPA designates 
items that are manufactured with steel, not the material itself.
    EPA has used the new data provided by SRI for coal and limestone 
savings resulting from the use of recovered steel in manufacturing. 
This information has been incorporated in all applicable documents 
supporting the final CPG/RMAN III.

B. Comments on Proposed Item Designations

    A vast majority of commenters supported the item designations 
proposed in CPG III with minor comments. This section discusses the 
major comments submitted on specific items proposed for designation in 
the proposed CPG III. EPA has included a summary of all comments on the 
proposed CPG III and our responses in the ``Background Document for the 
Final CPG III/RMAN III.'' EPA received significant comments on four 
items: carpet backing, flowable fill, railroad grade crossings, and 
sorbents. These comments are discussed below. Based on the item-
specific comments received, we are promulgating all of the items 
proposed with the exception of nylon carpet with backing containing 
recovered materials.
1. Nylon Carpet With Backing Containing Recovered Materials
    Comments: EPA received six comments in opposition to the proposed 
designation of nylon carpet with backing containing recovered 
materials. These commenters all stated that there is only one 
manufacturer currently making nylon carpet backing with recovered 
materials content. They indicated that the manufacturer uses a patented 
process and, therefore, a designation is premature and does not meet 
the statutory requirements for adequate competition when designating 
items.
    Response: EPA proposed to designate nylon carpet with backing 
containing recovered materials based on the fact that at the time of 
the proposal, one manufacturer was producing carpet tiles with backing 
containing recovered materials commercially and, as the Agency stated 
in the background document, two other manufacturers were piloting 
production runs with recovered materials content and were expected to 
enter the marketplace. As a result of this comment, EPA conducted

[[Page 3074]]

additional research and found that, since the proposal, significant 
developments have occurred in the carpet industry with respect to the 
use of recovered materials in nylon carpet backing and the fiber 
facing. As an example, one company is currently making ``renewed'' 
carpet tiles. The company takes old carpet and makes renewed carpet 
tiles through a series of process steps which include supercleaning, 
retexturing of fibers, and adding colors and patterns. In addition, 
many companies have begun or are expected to begin manufacturing nylon 
carpet tiles with recovered materials in the fiber facing. Since 
significant developments have occurred with respect to the use of 
recovered materials in the nylon carpet industry, the Agency believes 
additional research should be conducted before a final designation for 
nylon carpet or nylon carpet backing is issued to ensure these 
developments are given proper consideration. Therefore, the Agency is 
not designating this item at this time, but will consider designating 
nylon carpet products when proposing the next procurement guideline 
(CPG IV).
    Although the Agency is not designating this item at this time, 
procuring agencies may choose to procure any item containing recovered 
materials, regardless of whether the item is specifically designated by 
EPA. Procurement of items containing recovered materials, whether or 
not they are designated by EPA, is consistent with RCRA section 6002 
and E.O. 13101.
2. Flowable Fill
    EPA received 18 sets of comments on its proposal to designate 
flowable fill containing coal fly ash and ferrous foundry sands. While 
all commenters supported the proposed designation for flowable fill 
containing coal fly ash, some commenters raised issues on the proposed 
designation of flowable fill containing ferrous foundry sands. The 
following discussions summarize these concerns and other issues raised 
by the commenters and also provides the Agency's response.
    Comment: The FIRST Project (Foundry Industry Recycling Starts 
Today), which is an industry consortium, supported EPA's designation of 
flowable fill containing foundry sand, with a few comments. The FIRST 
Project took issue with EPA's statement that nonferrous foundry sands 
are typically hazardous waste due to their lead and cadmium content (63 
FR 45563). The FIRST Project maintains that spent sand from the vast 
majority of nonferrous foundries is not hazardous, nor does it contain 
lead and cadmium. The FIRST Project provided analytical data from 
nonferrous foundry sand samples to support their position. According to 
the FIRST Project, due to changes in alloy chemistries of many 
nonferrous foundry operations over the past decade, spent sands meet 
EPA and state definitions of nonhazardous waste. The FIRST Project 
requested that EPA correct the statement about nonferrous sands being 
hazardous waste. They also suggested that EPA list the American 
Foundrymen's Society as another resource for obtaining information on 
the use of spent foundry sand in flowable fill.
    Response: EPA based its statement regarding the hazardousness of 
nonferrous foundry sands on industry data provided to the Agency in 
1995 as part of the Phase IV Land Disposal Restrictions (LDR) 
rulemaking (60 FR 43654, August 22, 1995). These data indicated that 
the sands from 98% of bronze and brass (B&B) foundries and 40% of 
bronze and brass and aluminum (B&B&A) foundries were characteristically 
hazardous for metals.
    The commenter's analytical data do not support their claim that a 
majority of nonferrous foundry sands are nonhazardous because in 
numerous cases, improper test methods were used. First, for 8 of 12 
aluminum green sand waste samples, the digestion of the sample uses SW-
846 Method 3010A or Method 3020A (both normally used for water) instead 
of Methods 3050 and 3051 (both used for solids). (The other 4 aluminum 
green sand samples did use Method 3051.) These digestion methods are 
weaker and would extract less of whatever metals are present in the 
waste matrix. In addition, virtually all of the commenter's leachate 
extraction data on spent sand waste samples were done using either the 
Synthetic Precipitation Leaching Procedure (SPLP) SW-846 Method 1312 
(which relies on nitric/sulphuric acid as the extractant or deionized 
water) rather than the Toxicity Characteristic Leachate Procedure 
(TCLP) SW-846 Method 1311 which the Agency uses to determine toxicity 
for purposes of assessing hazardousness under 40 CFR 261.24. Therefore, 
the commenter's leachate extraction data are not appropriate for 
determining whether the samples tested are characteristically 
hazardous.
    The Agency agrees with the commenter, however, that the statement 
in the proposed CPG III was too general and may have implied a 
conclusive determination about the regulatory nature of nonferrous 
foundry sands. This clearly was not the intent of the statement. 
Therefore, the Agency has removed any characterization of nonferrous 
foundry sands as hazardous in the final CPG III and all supporting 
documents.
    The Agency agrees with the commenter that the American Foundrymen's 
Society should be identified as a resource for obtaining information 
regarding the use of spent foundry sand in flowable fill and EPA will 
ensure this reference is made in all documents supporting the final CPG 
III/RMAN III where appropriate.
    Comment: The FIRST Project commented that applications for the use 
of flowable fill should be broadened to include structural fill for 
foundation subbases, subfootings, floor lab bases, and pipe beddings.
    Response: EPA's designation in the CPG and recommendations in the 
RMAN do not preclude procuring agencies from using flowable fill in the 
applications suggested by the commenter. If flowable fill meets the 
requisite specifications and performance standards for a particular 
application, then flowable fill can be considered for use by a 
procuring agency. The specifications and test methods identified in the 
RMAN are provided to help procuring agencies in their procurement 
efforts. If a procuring Agency wants to include other applications for 
flowable fill in their affirmative procurement program (APP), it can 
exercise its discretion in doing so without being restricted to the 
applications recommended by EPA in the RMAN. EPA is required to revise 
the RMAN recommendations periodically and will consider the 
applications suggested by the commenter in future revisions. However, 
any recommendations made by EPA, will be subject to notice and public 
comment. EPA requests that commenters provide any pertinent information 
on the suggested applications, including references to any industry 
specifications and test methods appropriate for the various 
applications. We will consider all information received on this matter 
when we update the RMAN recommendations.
    Comment: The Federal Highway Administration (FHWA) submitted 
comments stating its concern that, based on one of its user guidelines, 
there might be a problem with foundry sand stockpile water being 
contaminated with phenols and, that if this is the case, there would be 
a discrepancy between this and the CPG statement that ferrous foundry 
sands are not known to be a hazardous waste. They provided no 
information or analytical data to substantiate their statement. FHWA 
requested that this issue be addressed

[[Page 3075]]

since they could not support this designation if it placed an undue 
burden on state departments of transportation to monitor each site or 
if it requires mitigation by contractors.
    Response: EPA is aware that phenols may be present in some ferrous 
foundry sands. According to a 1989 study sponsored by the American 
Foundrymen's Society and conducted by the University of Wisconsin, 
phenols were present in some ferrous foundry sands well below 
regulatory levels, so the Agency does not believe there is reason for 
concern. In addition, the designation of flowable fill containing 
ferrous foundry sands in the CPG does not exempt these sands from 
regulatory control if phenols, or any other regulated contaminants, are 
present at levels of regulatory concern. EPA's designation does not 
change the regulatory management obligations for the recovered material 
nor does it in any way suggest that the materials are relieved from 
waste management regulations. The determination as to whether the sands 
contain contaminants at regulatory levels should be made in accordance 
with all applicable federal and state regulations and, thus, no 
additional burden would be placed on any entity to monitor stockpiles 
as a result of a final designation for this item in the CPG. All 
actions relating to determining the regulatory status of these sands 
would be performed by generators or those manufacturing flowable fill, 
not by those using a commercial product.
    Comment: The Illinois Department of Transportation (IDOT) submitted 
comments in opposition to the use of ferrous foundry sands in flowable 
fill since, according to IDOT, these sands are normally contaminated 
with oil. They did not provide any information or data to substantiate 
this claim. IDOT believes the use of coal fly ash in flowable fill is 
logical because it has an acceptable track record. IDOT stated that 
little research has been done on ferrous foundry sand and that its use 
has been minimal.
    EPA contacted the commenter to ascertain the basis for their 
comment and was told that since the comment was submitted, IDOT has 
learned that ``oil contamination is not always present.''
    Response: As stated previously, EPA's designation does not change 
the regulatory management obligations for treatment or management of 
the recovered material nor does it exempt the materials from existing 
waste management regulations. The determination as to whether the 
ferrous foundry sands contain contaminants at regulatory levels should 
be made in accordance with applicable federal and state regulations 
before the material is used to make a commercial product.
    Comment: American Electric Power (AEP) submitted comments 
supporting the proposed designation of flowable fill containing ferrous 
foundry sand and also stated that EPA should note in the CPG and RMAN, 
that a variety of flowable fills have been successfully developed 
without the use of cement as an ingredient. AEP referred to flowable 
fills that use materials such as Class C fly ashes that have a high 
calcium content, making them appropriate for use in lieu of cement. AEP 
also stated that these flowable fill mixes, which sometimes utilize 
other recycled materials such as Class F fly ash and bottom ash as 
filler, have been approved for use in several states. AEP provided 
copies of some state specifications.
    Response: Information presented in the CPG and RMAN pertains to 
those items that have been or are being designated by EPA. The 
designation of items under RCRA section 6002 and E.O. 13101 requires 
notice and comment before final designations are promulgated. Because 
EPA did not propose to designate flowable fill containing other 
materials such as Class C fly ashes, has not reviewed sufficient 
information on these materials, and did not solicit public comments, no 
reference or recommendations for these items are appropriate at this 
time. However, procuring agencies may choose to procure any item 
containing recovered materials, regardless of whether the item is 
specifically designated by EPA. Procurement of items containing 
recovered materials, whether or not they are designated by EPA, is 
consistent with RCRA section 6002 and E.O. 13101. EPA will consider 
designating additional flowable fills containing other recovered 
materials in future amendments to the CPG.
3. Railroad Grade Crossing Surfaces
    Comment: The Illinois Department of Transportation (IDOT) submitted 
comments opposing the designation and recovered materials content 
recommendations for railroad grade crossing surfaces because crossing 
designs are usually job-specific, and IDOT believes this designation 
would inhibit innovation. In addition, IDOT believes it would be very 
costly to verify the total recovered materials content.
    Response: EPA disagrees that designating railroad grade crossing 
surfaces and providing recommendations on recovered materials content 
ranges would inhibit innovation. As stated in Table C-11A of RMAN III, 
``EPA's recommendations do not preclude a procuring agency from 
purchasing another type of railroad grade crossing surface * * *. They 
simply require procuring agencies, when purchasing concrete, rubber, or 
steel grade crossing surfaces, purchase these items made with recovered 
materials when these items meet applicable specifications and 
performance requirements.'' Therefore, job-specific requirements and 
specifications should be factored into the procuring agency's decision 
whether to use products containing recovered materials. If railroad 
grade crossings made with recovered materials do not meet legitimate 
job-specific requirements, the procuring agency is not required to use 
the designated items with recovered materials.
    EPA disagrees with the commenter's claim that it might be costly to 
verify recovered materials content in designated items. RCRA section 
6002(i) requires that an agency's affirmative procurement program (APP) 
``contain a program for requiring vendors to estimate, certify, and 
reasonably verify the recovered materials content of their products.'' 
This provision is not meant to burden either of the contracting 
parties. At the federal level, there are standard provisions for all 
contracts in the Federal Acquisition Regulations (FAR) that can be used 
to certify that the products contracted for are delivered. Standard 
clauses presumably exist for contracts issued by state agencies as 
well. These standard provisions can be used to certify recovered 
materials content levels with no extraneous costs to either party.
4. Sorbents
    Comment: Synthetic Industries (SI) produces sorbents made of 
polypropylene (PP) that are used to clean up solvent and oil spills. SI 
is opposed to the designation of sorbents containing postconsumer 
recovered PP because, according to SI, such products are 
technologically infeasible. In addition, SI believes PP sorbents should 
not be designated for performance-related reasons, citing doubts about 
the ability of manufacturers to produce a highly sensitive PP product 
from postconsumer material. SI also stated that it is not feasible to 
make sorbents with postconsumer PP since it is difficult to obtain a 
consistent, non-contaminated source of postconsumer PP material. SI 
stated that if the sorbent's chemical content is not known, it could 
react with a spilled chemical, create a further hazard, or not work 
properly.

[[Page 3076]]

    Response: EPA did not propose to designate sorbents with 
postconsumer PP, only those with total recovered plastics. EPA's 
research identified three companies currently making these products. 
The Agency agrees with the commenter that not all sorbent materials are 
right for all clean-ups. The Agency stated this position in both its 
background document and the proposed CPG III FR notice (63 FR 45569, 
August 26, 1998). The Agency wrote, ``The type of sorbents used for 
spill applications generally depends on the type of substance being 
sorbed, where the spill occurs, and worker health and safety issues.'' 
The Agency provided a lengthy discussion of the importance of choosing 
sorbents for particular applications both in the FR notice and 
background document. The Agency notes that these factors should be 
considered regardless of whether the sorbent is made from recovered or 
virgin materials. In the RMAN, published in the notices section of 
today's Federal Register, EPA recommends that procuring agencies use 
industry standard specifications for solvent performance when 
determining the sorbents to be used in particular applications.
    Comment: The Brookhaven National Laboratory commented on the 
performance of recovered-content sorbents. The commenter believes that 
EPA should tell potential users of sorbents that sorbent capacity is an 
important factor in sorbent selection for oil and solvent spills, and 
that lower sorbent capacities compromise performance and will result in 
greater waste volumes and higher disposal costs.
    Response: EPA believes that both virgin and recovered material 
content sorbents can provide similar performance in oil and solvent 
spill situations as long as the appropriate type of sorbent is chosen 
(based on a variety of factors including sorbent capacity) for the type 
of substance being sorbed and for the location of the spill. Whenever 
an inappropriate sorbent is used, either virgin or recovered content, 
the possibility exists for dangerous reactions, environmental damage, 
or increased sorbent use and recovery or disposal. EPA notes that used 
sorbent material does not necessarily end in disposal. Under certain 
conditions, some sorbent materials can be reused or recycled. Synthetic 
sorbents, for example, release sorbed substances under pressure, and 
inorganic sorbents can be recovered and used again through a laundering 
process. Several federal agencies are successfully using recovered 
content sorbents to deal with oil and solvent spills. The National Park 
Service, for example, uses a product made from recovered polypropylene, 
for heavy or viscose oils. The U.S. Army Corps of Engineers at Dworshak 
Dam in Idaho, uses a product made from 100 percent recovered wood 
waste, for emergency spill responses.

C. Comments on Other Items Considered for Designation

    In the proposed CPG III notice, the Agency stated that we had 
considered two items (recycled ink and shotgun shells) and determined 
that it was inappropriate to designate these items (63 FR 45574). We 
requested additional information demonstrating whether these items 
should be reconsidered for possible future designation. No comments 
were submitted on these items or on our decision not to designate these 
items. EPA has received letters from a recycled ink manufacturer, 
separate from the Federal Register notice request for comments, stating 
that ink be reconsidered for designation. However, no additional 
information has been submitted by this company despite repeated 
requests by the Agency.
    For the above reasons, EPA is no longer conducting research 
relative to these items or considering them for designation in a future 
CPG. However, we will review any information submitted in support of 
designating these items in the future to determine whether these items 
should be reconsidered.

VII. Where Can Agencies Get Information on the Availability of EPA-
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 36 items previously designated in the 
CPG. These lists have been placed in the RCRA docket for this action 
and will be updated periodically as new sources are identified and 
product information changes. These lists will also be available through 
EPA's web site on the Internet. (See section IX below for Internet 
access information.) Procuring agencies should contact the 
manufacturers/vendors directly to discuss their specific needs and to 
obtain detailed information on the availability and price of recycled 
products meeting their needs.
    Other information is available from the GSA, the Defense Logistics 
Agency (DLA), State and local recycling offices, private corporations, 
and trade associations. Refer to Section XIV of the document, 
``Background Document for the Final CPG III/RMAN III'' for more 
information on these other sources of information.
    State and local recycling programs are also a potential source of 
information on local distributors and the availability of designated 
items. In addition, state and local government purchasing officials 
that are contracting for recycled content products may have relative 
price information. A current list of state purchasing/procurement 
officials has been placed in the docket for the final CPG III. The 
public docket also includes a list of states with recycled content 
products purchasing programs, current as of October 1998. Information 
is also available from trade associations whose members manufacture or 
distribute products containing recovered materials. These trade 
associations are included in the updated lists of product manufacturers 
and vendors described above.
    Additionally, Environmental Newsletters, Inc., publisher of Waste 
Reduction Tips, prepared a directory of recycled product directories. 
EPA has placed the ``1996 Directory of Recycled Product Directories,'' 
from Environmental Newsletters' Recycled Products Business Letter, in 
the public docket for the final CPG III. Environmental Newsletters, 
Inc. can be reached at 703 758-8436 for further information.

VIII. Administrative Assessments

A. Executive Order 12866: Regulatory Planning and Review

    Executive Order 12866 requires agencies to determine whether a 
regulatory action is ``significant.'' The Order defines a 
``significant'' regulatory action as one that is likely to result in a 
rule that may: (1) Have an annual effect on the economy of $100 million 
or more or adversely affect, in a material way, the economy, a sector 
of the economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or tribal governments or 
communities; (2) create serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients; or (4) raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    EPA estimates that the costs associated with today's rule is well 
below the $100 million threshold. EPA

[[Page 3077]]

has prepared an Economic Impact Analysis (EIA) to evaluate the 
potential impact of today's action. The results of the EIA are 
discussed below. More information on the estimated economic impact of 
today's rule is included in the ``Economic Impact Analysis for the 
Final Comprehensive Procurement Guideline III.'' A copy of this 
document is in the public docket.
1. Summary of Costs
    EPA estimated that the annualized costs of the proposed rule to 
designate 19 items would fall in the range of $6.5 to $13 million. Even 
though today's final rule designates 18 items, rather than 19 items, 
the costs associated with this rule are estimated to be slightly higher 
than the estimates in the proposal. This is due to the fact that the 
Agency revised the economic impact analysis to reflect 1999 labor rates 
which are higher than those in 1998 when the rule was proposed.
    As shown in Table 2 below, EPA estimates that the annualized costs 
of today's rule will range from $7.6 to $14.8 million, with costs being 
spread across all procuring agencies (i.e., Federal agencies, State and 
local agencies that use appropriated Federal funds to procure 
designated items, and government contractors). These costs are 
annualized over a 10-year period at a three percent discount rate. 
Because there is considerable uncertainty regarding several of the 
parameters that influence the costs, EPA conducted sensitivity analyses 
to identify the range of potential costs of today's rule. Thus, high-
end and low-end estimates are presented along with the best estimate. 
The primary parameter affecting the range of cost estimates is the 
number of products each procuring agency is assumed to procure each 
year. Details of the costs associated with today's final rule are 
provided in the Economic Impact Analysis for this rule.

   Table 2.--Summary of Annualized Costs of CPG III Amendments to All
                           Procuring Agencies
------------------------------------------------------------------------
                                                         Best Estimate
        Procuring agency           Total annualized    Total annualized
                                     costs ($1000)       costs ($1000)
------------------------------------------------------------------------
Federal agencies................  $9,254-$4,627                   $9,254
States..........................    1,680-840                     $1,680
Local Governments...............  3,787-2,066                      2,927
Contractors.....................       123-61                         92
Total...........................  14,844-7,594                    13,953
------------------------------------------------------------------------

    As a result of today's rule, procuring agencies will be required to 
take certain actions pursuant to RCRA section 6002, including rule 
review and implementation; estimation, certification, and verification 
of designated item procurement; and for Federal agencies, reporting and 
recordkeeping. The costs shown in Table 2 represent the estimated 
annualized costs associated with these activities. Table 2 also 
includes estimates for Federal agencies that will incur costs for 
specification revisions and affirmative procurement program 
modification. More details of the costs associated with today's rule 
are included in the Economic Impact Analysis.
    There may be both positive and negative impacts to individual 
businesses, including small businesses. EPA anticipates that today's 
final rule will provide additional opportunities for recycling 
businesses to begin supplying recovered materials to manufacturers and 
products made from recovered materials to procuring agencies. In 
addition, other businesses, including small businesses, that do not 
directly contract with procuring agencies may be affected positively by 
the increased demand for recovered materials. These include businesses 
involved in materials recovery programs and materials recycling. 
Municipalities that run recycling programs are also expected to benefit 
from increased demand for certain materials collected in recycling 
programs.
    EPA is unable to determine the number of businesses, including 
small businesses, that may be adversely impacted by today's final rule. 
If a business currently supplies products to a procuring agency and 
those products are made only out of virgin materials, the amendments to 
the CPG may reduce that company's ability to compete for future 
contracts. However, the amendments to the CPG will not affect existing 
purchase orders, nor will it preclude businesses from adapting their 
product lines to meet new specifications or solicitation requirements 
for products containing recovered materials. Thus, many businesses, 
including small businesses, that market to procuring agencies have the 
option to adapt their product lines to meet specifications.
2. Product Cost
    Another potential cost of today's action is the possible price 
differential between an item made with recovered materials and an 
equivalent item manufactured using virgin materials. The relative 
prices of recycled content products compared to prices of comparable 
virgin products vary. In many cases, recycled content products are less 
expensive than similar virgin products. In other cases, virgin products 
have lower prices than recycled content products. Many factors can 
affect the price of various products. For example, temporary 
fluctuations in the overall economy can create oversupplies of virgin 
products, leading to a decrease in prices for these items. Under RCRA 
section 6002(c), procuring agencies are not required to purchase a 
product containing recovered materials if it is only available at an 
unreasonable price. However, the decision to pay more or less for such 
a product is left up to the procuring agency.
3. Summary of Benefits
    EPA anticipates that today's final rule will result in increased 
opportunities for recycling and waste prevention. Waste prevention can 
reduce the nation's reliance on natural resources by reducing the 
amount of materials used in making products. Using less raw materials 
results in a commensurate reduction in energy use and a reduction in 
the generation and release of air and water pollutants associated with 
manufacturing. Additionally, waste prevention leads to a reduction in 
the environmental impacts of mining, harvesting, and other extraction 
processes.
    Recycling can effect the more efficient use of natural resources. 
For many products, the use of recovered materials in manufacturing can 
result in significantly lower energy and material input costs than when 
virgin raw materials are used; reduce the generation and release of air 
and water pollutants often associated with manufacturing; and reduce 
the environmental impacts of mining,

[[Page 3078]]

harvesting, and other extraction of natural resources. For example, 
according to information published by the Steel Recycling Institute, 
recycling one ton of steel saves nearly 11 million Btus of energy; 
2,500 lbs. of ore; 1,400 lbs. of coal; and 120 lbs. of limestone. 
Recycling can also reduce greenhouse gas emissions associated with 
manufacturing new products. When compared to landfilling, recycling one 
ton of high density polyethylene, low density polyethylene, or 
polyethylene terephthalate plastic can reduce greenhouse gas emissions 
by up to 0.64 metric tons of carbon equivalent (MTCE). In addition to 
conserving 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 all of these benefits. On a 
national and regional level, today's final rule can result in expanding 
and strengthening markets for materials diverted or recovered through 
public and private collection programs. Also, since many State and 
local governments, as well as private companies, reference EPA 
guidelines when purchasing designated items, this rule can result in 
increased purchase of recycled products, locally, regionally, and 
nationally and provide opportunities for businesses involved in 
recycling activities.

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

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act, 
provides that, whenever an agency promulgates a final rule under 5 
U.S.C. 553, after being required by that section or any other law to 
public a general notice of proposed rulemaking, the agency must prepare 
a final regulatory flexibility analysis (FRFA). The agency must prepare 
an FRFA for a final rule unless the head of the agency certifies that 
it will not have a significant economic impact on a substantial number 
of small entities. EPA is today certifying, pursuant to section 605(b) 
of the RFA, that the final rule will not have a significant economic 
impact on a substantial number of small entities. Therefore, the Agency 
did not prepare an FRFA.
    The final rule will not have a significant economic impact on a 
substantial number of small entities for the following reasons. The RFA 
defines ``small entity'' to mean a small business, small organization 
or small governmental jurisdiction. EPA's action today in designating 
18 new items that are or may be produced with recovered materials 
content may establish requirements applicable, in some cases, to small 
governmental jurisdictions and small businesses.
    In the case of small entities which are small governmental 
jurisdictions, EPA has concluded that the rule will not have a 
significant economic impact. EPA concluded that no small government 
with a population of less than 50,000 is likely to incur costs 
associated with the designation of the 18 items because it is 
improbable that such jurisdictions will purchase more than $10,000 of 
any designated item. Consequently, section 6002 would not apply to 
their purchases of designated items. Moreover, there is no evidence 
that complying with the requirements of section 6002 would impose 
significant additional costs on the small governmental entity to comply 
in the event that a small governmental jurisdiction purchased more than 
$10,000 worth of a designated item. This is the case because in many 
instances items with recovered materials content may be less expensive 
than items produced from virgin material.
    Similarly, EPA has concluded that the economic impact on small 
entities that are small businesses would not be significant. The CPG 
applies to small businesses that are ``procuring agencies.'' The 
potential economic impact of the CPG on small businesses that are 
``procuring agencies'' is minimal.
    RCRA section 6002 applies to a contractor with a Federal agency (or 
a state or local agency that is a procuring agency under Section 6002) 
when the contractor is purchasing a designated item, is using Federal 
money to do so, and exceeds the $10,000 threshold. There is an 
exception for purchases that are ``incidental to'' the purposes of the 
contract, i.e., not the direct result of the funds disbursement. For 
example, a courier service contractor is not required to purchase re-
refined oil and retread tires for its fleets because purchases of these 
items are incidental to the purpose of the contract. Therefore, as a 
practical matter, there would be very limited circumstances when a 
contractor's status as a ``procuring agency'' for section 6002 purposes 
would impose additional costs on the contractor. Thus, for example, if 
the State or Federal agency is contracting with a supplier to obtain a 
designated item, then the cost of the designated item (and any 
associated costs of meeting section 6002 requirements) to the supplier 
presumably will be fully recovered in the contract price. Any costs to 
small businesses that are ``procuring agencies'' (and subject to 
section 6002) are likely to be insubstantial. Even if a small business 
is required to purchase other items with recovered materials content, 
such items may be less expensive than items with virgin content.
    For these reasons, EPA certifies that today's designations will not 
have a significant economic impact on a substantial number of small 
entities. Because today's action does not impose significant new 
burdens on small entities, this rule does not require a final 
regulatory flexibility analysis.
    The basis for EPA's conclusions that today's rule will not have a 
significant impact on a substantial number of small entities is 
described in greater detail in the ``Economic Impact Analysis'' for the 
rule which is located in the RCRA public docket.
    While not a factor relevant to determining whether the rule will 
have a significant impact for RFA purposes, EPA believes that the 
effect of today's rule would be to provide positive opportunities to 
businesses engaged in recycling and the manufacture of recycled 
products. Purchase and use of recycled products by procuring agencies 
increase demand for these products and result in private sector 
development of new technologies, creating business and employment 
opportunities that enhance local, regional, and national economies. 
Technological innovation associated with the use of recovered materials 
can translate into economic growth and increased industry 
competitiveness worldwide, thereby, creating opportunities for small 
entities.

C. Unfunded Mandates Reform Act of 1995 and Consultation With State, 
Local, and Tribal Governments

    Under section 202 of the Unfunded Mandates Reform Act of 1995 (the 
Act), Public Law 104-4, which was signed into law on March 22, 1995, 
EPA generally must prepare a written statement for rules with Federal 
mandates that may result in estimated costs to State, local, or tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year. When such a statement is required for EPA 
rules, under section 205 of the Act EPA must identify and consider 
alternatives, including the least costly, most cost-effective or least 
burdensome alternative that achieves

[[Page 3079]]

the objectives of the rule. EPA must select that alternative, unless 
the Administrator explains in the final rule why it was not selected or 
it is inconsistent with law. Before EPA establishes regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must develop under 
section 203 of the Act a small government agency plan. The plan must 
provide for notifying potentially affected small governments, giving 
them meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising them on compliance with the 
regulatory requirements.
    EPA has determined that today's final rule does not include a 
Federal mandate that may result in estimated annualized costs of $100 
million or more to either State or local governments in the aggregate, 
or to the private sector. To the extent enforceable duties arise as a 
result of this rule on State and local governments, they are exempt 
from inclusion as Federal inter-governmental mandates if such duties 
are conditions of Federal assistance. Even if they are not conditions 
of Federal assistance, such enforceable duties do not result in a 
significant regulatory action being imposed upon State and local 
governments since the estimated aggregate cost of compliance for them 
are not expected to exceed, at the maximum, $4.6 million annually. The 
cost of enforceable duties which may arise as a result of today's rule 
on the private sector are estimated not to exceed $92,000 annually. 
Thus, today's rule is not subject to the written statement requirement 
in sections 202 and 205 of the Act.
    The newly designated items included in the CPG may give rise to 
additional obligations under section 6002(i) (requiring procuring 
agencies to adopt affirmative procurement program and to amend their 
specifications) for state and local governments. As noted above, the 
expense associated with any additional costs is not expected to exceed, 
at the maximum, $4.6 million annually. In compliance with E.O. 12875, 
which requires the involvement of State and local governments in the 
development of certain Federal regulatory actions, EPA conducts a wide 
outreach effort and actively seeks the input of representatives of 
state and local governments in the process of developing its 
guidelines.
    When EPA proposes to designate items in the CPG, information about 
the proposal is distributed to governmental organizations so that they 
can inform their members about the proposals and solicit their 
comments. These organizations include the U.S. Conference of Mayors, 
the National Association of Counties, the National Association of Towns 
and Townships, the National Association of State Purchasing Officials, 
and the American Association of State Highway and Transportation 
Officials. EPA also provides information to potentially affected 
entities through relevant recycling, solid waste, environmental, and 
industry publications. In addition, EPA's regional offices sponsor and 
participate in regional and state meetings at which information about 
proposed and final designations of items in the CPG is presented. 
Finally, EPA has sponsored buy-recycled education and outreach 
activities by organizations such as the U.S. Conference of Mayors, the 
Northeast Recycling Council, the Environmental Defense Fund, Keep 
America Beautiful, and the California Local Government Commission, 
whose target audience includes small governmental entities.
    The requirements do not significantly affect small governments 
because they are subject to the same requirements as other entities 
whose duties result from today's rule. As discussed above, the expense 
associated with any additional costs to State and local governments, is 
not expected to exceed, at the maximum, $4.6 million annually. The 
requirements do not uniquely affect small governments because they have 
the same ability to purchase these designated items as other entities 
whose duties result from today's rule. Additionally, use of designated 
items affects small governments in the same manner as other such 
entities. Thus, any applicable requirements of section 203 have been 
satisfied.

D. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under Executive Order 13132, EPA may not issue a regulation that 
has federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The rule will not impose 
substantial costs on States and localities. As a result of today's 
action, procuring agencies will be required to perform certain 
activities pursuant to RCRA section 6002, including rule review and 
implementation; estimation, certification, and verification of 
designated item procurement; and for Federal agencies, reporting and 
record keeping. As noted above, EPA estimates that the total annualized 
costs of today's rule will range from $7.6 to $14.8 million. EPA's 
estimate reflects the costs of the rule for all procuring agencies 
(i.e., Federal agencies, State and local agencies that use appropriated 
Federal funds to procure designated items, and government contractors), 
not just States and localities. Thus, the costs to States and 
localities alone will be even lower and not substantial. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

E. Executive Order 13084: Consultation and Coordination with Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian Tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the

[[Page 3080]]

rule, a description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's Rule does not significantly or uniquely affect the 
communities of Indian tribal governments. The rule does not impose any 
mandate on tribal governments or impose any duties on these entities. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this rule.

F. Executive Order 13045: Protection of Children from Environmental 
Risks and Safety Risks

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), applies to any rule that EPA determines is (1) ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children; and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    EPA interprets the E.O. 13045 as encompassing only those regulatory 
actions that are risk based or health based, such that the analysis 
required under section 5-501 of the E.O. has the potential to influence 
the regulation. This rule is not subject to E.O. 13045 because it does 
not involve decisions regarding environmental health or safety risks.

G. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, Section 12(d)(15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, business practices) that are developed or adopted 
by voluntary consensus standard bodies. The NTTAA directs EPA to 
provide Congress explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This rule does not establish technical standards. Therefore, the 
Agency has not conducted a search to identify potentially applicable 
test methods from voluntary consensus standard bodies. As part of this 
rulemaking effort, EPA has developed guidance for procuring agencies to 
use in complying with section 6002's obligation to purchase items with 
recovered materials content to the maximum extent practicable. These 
recommendations include minimum recovered materials content standards 
and, as previously noted, are published today in the companion RMAN for 
the designated items. In developing these recommendations, EPA did 
consider current voluntary consensus standards on recovered materials 
content.

H. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective January 19, 2000.

IX. Supporting Information and Accessing Internet

    The index of supporting materials for today's final CPG III is 
available in the RCRA Information Center (RIC) and on the Internet. The 
address and telephone number of the RIC are provided in ADDRESSES 
above. The index and the following supporting materials are available 
in the RIC and on the Internet:
    ``Background Document for the Final CPG III/RMAN III,'' U.S. EPA, 
Office of Solid Waste and Emergency Response, September 1999.
    Copies of the following supporting materials are available for 
viewing at the RIC only:
    ``Economic Impact Analysis for the Final Comprehensive Procurement 
Guideline III,'' U.S. Environmental Protection Agency, July 14, 1999.
    ``Telephone Notes, Nylon Carpet With Backing Containing Recovered 
Materials, Between Lynne Gilbert, Eastern Research Group and Dave 
Whitley, Interface Carpet, January, 22, 1999.''
    ``E-mail message, Nylon Carpet With Backing Containing Recovered 
Materials, Between Lynne Gilbert, Eastern Research Group and Dobbin 
Callahan, Collins & Aikman, January 26, 1999.''
    ``Telephone Notes and Facsimile Message, Nylon Carpet With Backing 
Containing Recovered Materials, Between Birgette Junior, Eastern 
Research Group and Pamela Marple, Brand, Lowell, and Ryan, June 24, 
1999.''
    ``National Association of State Purchasing Officials, 1998/1999 
Membership Roster.''
    ``List of States with Recycled Content Product Purchasing 
Programs.''
    To access information on the Internet go to www.epa.gov/cpg.

List of Subjects in 40 CFR Part 247

    Environmental protection, Government procurement, Recycling.

    Dated: January 10, 2000.
Carol M. Browner,
Administrator.

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

PART 247--COMPREHENSIVE PROCUREMENT GUIDELINE FOR PRODUCTS 
CONTAINING RECOVERED MATERIALS I111. The authority citation for 
part 247 is revised to read as follows:


    Authority: 42 U.S.C. 6912(a) and 6962; E.O. 13101, 63 FR 49643, 
3 CFR, 1998 Comp., p. 210.

    2. In Sec. 247.3, the following definitions are added 
alphabetically:


Sec. 247.3  Definitions.

* * * * *
    Awards and plaques refers to free-standing statues and boardlike 
products generally used as wall-hangings.
* * * * *
    Carpet cushion, also known as carpet underlay, is padding placed 
beneath carpet to reduce carpet wear caused by foot traffic or 
furniture indentation,

[[Page 3081]]

enhance comfort, and prolong appearance.
* * * * *
    Compost made from yard trimmings, leaves, grass clippings, and/or 
food wastes is a thermophilic converted product with high humus 
content. Compost can be used as a soil amendment and can also be used 
to prevent or remediate pollutants in soil, air, and storm water run-
off.
* * * * *
    Flowable fill is a low strength material that is mixed to a wet, 
flowable slurry and used as an economical fill or backfill material in 
place of concrete, compacted soils, or sand.
* * * * *
    Industrial drums are cylindrical containers used for shipping and 
storing liquid or solid materials.
* * * * *
    Manual-grade strapping refers to straps of material used with 
transport packaging to hold products in place on pallets or in other 
methods of commercial, bulk shipment. Strapping can also prevent 
tampering and pilferage during shipping.
    Mats are temporary or semipermanent protective floor coverings used 
for numerous applications, including home and office carpet protection, 
car and truck floor board protection, traction on slippery surfaces, 
cushion from floor hardness, and reduction of injury risk during 
athletic events.
* * * * *
    Park benches and picnic tables are recreational furniture found in 
parks, outdoor recreational facilities, and the grounds of office 
buildings and other facilities.
* * * * *
    Plastic lumber landscaping timbers and posts are used to enhance 
the appearance of and control erosion in parks, highways, housing 
developments, urban plazas, zoos, and the exteriors of office 
buildings, military facilities, schools, and other public use areas.
    Playground equipment includes many components, like slides, merry-
go-rounds, hand rails, etc., and is found in parks, schools, child care 
facilities, institutions, multiple family dwellings, restaurants, 
resort and recreational developments, and other public use areas.
* * * * *
    Railroad grade crossing surfaces are materials placed between 
railroad tracks, and between the track and the road at highway and 
street railroad crossings, to enhance automobile and pedestrian safety.
* * * * *
    Signage (including sign posts and supports) is used for 
identification and directional purposes for public roads and highways, 
and inside and outside office buildings, museums, parks, and other 
public places.
* * * * *
    Sorbents (i.e., absorbents and adsorbents) are materials used to 
retain liquids and gases in a diverse number of environmental, 
industrial, agricultural, medical, and scientific applications. 
Absorbents incorporate a substance while adsorbents gather substances 
on their surfaces.
* * * * *

    3. In Sec. 247.12, add paragraphs (h), (i), and (j) to read as 
follows:


Sec. 247.12  Construction products.

* * * * *
    (h) Carpet cushion made from bonded polyurethane, jute, synthetic 
fibers, or rubber containing recovered materials.
    (i) Flowable fill containing coal fly ash and/or ferrous foundry 
sands.
    (j) Railroad grade crossing surfaces containing coal fly ash, 
recovered rubber, or recovered steel.

    4. In Sec. 247.14, add paragraphs (c) and (d) to read as follows:


Sec. 247.14  Park and recreation products.

* * * * *
    (c) Park benches and picnic tables containing recovered steel, 
aluminum, plastic, or concrete.
    (d) Playground equipment containing recovered plastic, steel, or 
aluminum.

    5. In Sec. 247.15, revise paragraph (b) and add paragraph (e) to 
read as follows:


Sec. 247.15  Landscaping products.

* * * * *
    (b) Compost made from yard trimmings, leaves, grass clippings, and/
or food waste for use in landscaping, seeding of grass or other plants 
on roadsides and embankments, as a nutritious mulch under trees and 
shrubs, and in erosion control and soil reclamation.
* * * * *
    (e) Plastic lumber landscaping timbers and posts containing 
recovered materials.

    6. In Sec. 247.16, revise paragraph (d) and add paragraphs (h) 
through (k) to read as follows:


Sec. 247.16  Non-paper office products.

* * * * *
    (d) Plastic-covered binders containing recovered plastic; chipboard 
and pressboard binders containing recovered paper; and solid plastic 
binders containing recovered plastic.
* * * * *
    (h) Plastic clipboards containing recovered plastic.
    (i) Plastic file folders containing recovered plastic.
    (j) Plastic clip portfolios containing recovered plastic.
    (k) Plastic presentation folders containing recovered plastic.

    7. In Sec. 247.17, add paragraphs (b) through (g) to read as 
follows:


Sec. 247.17  Miscellaneous products.

* * * * *
    (b) Sorbents containing recovered materials for use in oil and 
solvent clean-ups and as animal bedding.
    (c) Industrial drums containing recovered steel, plastic, or paper.
    (d) Awards and plaques containing recovered glass, wood, paper, or 
plastic.
    (e) Mats containing recovered rubber and/or plastic.
    (f)(1) Non-road signs containing recovered plastic or aluminum and 
road signs containing recovered aluminum.
    (2) Sign supports and posts containing recovered plastic or steel.
    (g) Manual-grade strapping containing recovered steel or plastic.
[FR Doc. 00-1066 Filed 1-18-00; 8:45 am]
BILLING CODE 6560-50-U