[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.
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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
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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
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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