[Federal Register Volume 68, Number 237 (Wednesday, December 10, 2003)]
[Proposed Rules]
[Pages 68813-68823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30266]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 247

[RCRA-2003-0005; SWH-FRL-7594-9]
RIN 2050-AE23


Comprehensive Procurement Guideline V for Procurement of Products 
Containing Recovered Materials

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) today 
is proposing an amendment to the May 1, 1995, Comprehensive Procurement 
Guideline (CPG) under the Resource Conservation and Recovery Act (RCRA) 
and the Executive Order ``Greening the Government Through Waste 
Prevention, Recycling, and Federal Acquisition.'' Specifically, EPA is 
proposing to revise the current compost designation to include compost 
made from manure or biosolids, and designate fertilizers made from 
recovered organic materials. EPA is also proposing to consolidate all 
compost designations under one item called ``compost made from 
recovered organic materials.''
    EPA is required 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 proposed 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.

DATES: EPA will accept public comments on this proposed rule until 
February 9, 2004.

ADDRESSES: Comments may be submitted electronically, by mail, or 
through hand delivery/courier. Send your comments by mail to: OSWER 
Docket Center, Environmental Protection Agency, Mailcode: 5305T, 1200 
Pennsylvania Ave. NW., Washington, DC 20460, Attention Docket ID No. 
RCRA-2003-0005. Follow the detailed instructions as provided in Unit 
I.C of the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: For general information contact the 
RCRA Call Center 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 Sue Nogas at (703) 308-0199.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Regulated Entities

    This action may potentially affect those ``procuring agencies''--a 
term defined in RCRA section 1004(17)--that purchase the following: 
composts made from manure or biosolids and fertilizers made from 
recovered organic materials. For purposes of RCRA section 6002, 
procuring agencies include the following: (1) Any federal agency; (2) 
any state or local agencies using appropriated federal funds for a 
procurement; or (3) any contractors with these agencies (with respect 
to work performed under the contract). The requirements of section 6002 
apply to such procuring agencies only when procuring designated items 
where the price of the item exceeds $10,000 or the quantity of the item 
purchased in the previous year exceeded $10,000. Potential regulated 
entities for this rule are shown in Table 1.

   Table 1.--Entities Potentially Subject to Section 6002 Requirements
                       Triggered by CPG Amendments
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                                                Examples of regulated
                 Category                             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.

[[Page 68814]]

 
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, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. This table lists the types of entities of which EPA is now 
aware that could potentially be subject to regulatory requirements 
triggered by this action. To determine whether your procurement 
practices are affected by this action, you should carefully examine the 
applicability criteria in 40 CFR 247.2. If you have questions regarding 
the applicability of this action to a particular entity, consult the 
individuals listed in the preceding FOR FURTHER INFORMATION CONTACT 
section.

B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. RCRA-2003-0005. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing at 
the OSWER Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 
B102, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the OSWER 
Docket is (202) 566-0270. Copies cost $.15 per page.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/, and you may make comments on 
this proposed rule at the Federal e-rulemaking portal, http://www.regulations.gov.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA's electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified in Unit I.B.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

C. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' EPA is not 
required to consider these late comments. However, late comments may be 
considered if time permits.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet Home Page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID No. RCRA-
2003-0005. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact

[[Page 68815]]

information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], Attention Docket ID No. RCRA-2003-0005. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in Unit I.C.2. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By Mail. Send your comments to: OSWER Docket, EPA Docket Center, 
Environmental Protection Agency, Mailcode: 5305T, 1200 Pennsylvania 
Ave., NW., Washington, DC, 20460, Attention Docket ID No. RCRA-2003-
0005.
    3. By Hand Delivery or Courier. Deliver your comments to: EPA 
Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave. 
NW., Washington, DC. Attention Docket ID No. RCRA-2003-0005. Such 
deliveries are only accepted during the Docket's normal hours of 
operation as identified in Unit I.B.1.

D. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically through EPA's electronic public docket. Send or deliver 
information identified as CBI only to the following address: Document 
Control Officer (5305W), Office of Solid Waste, U.S. Environmental 
Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460, Attention Docket ID No. RCRA-2003-0005. You may 
claim information that you submit to EPA as CBI by marking any part or 
all of that information as CBI. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

E. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

Preamble Outline

I. What is the statutory authority for this proposed amendment?
II. What is the background for this action?
    A. What criteria did EPA use to select items for proposed 
designation?
    B. How can I comment on EPA's proposed rule?
    C. Where can I find additional information on this proposed 
rule?
III. What are the definitions of terms used in today's proposed 
action?
IV. Landscaping Products
    A. Compost Made From Manure or Biosolids
    1. Background
    2. Rationale for Designation
    B. Fertilizers Made From Recovered Organic Materials
    1. Background
    2. Rationale for Designation
V. Where can agencies get information on the availability of EPA-
designated items?
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    1. Summary of Costs
    2. Product Cost
    3. Summary of Benefits
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
VII. Supporting Information and Accessing Internet

I. What Is the Statutory Authority for This Proposed Amendment?

    EPA (``the Agency'') is proposing 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; 42 U.S.C. 6912(a) and 
6962. This proposal also implements section 502 of Executive Order 
13101 (Executive Order), ``Greening the Government Through Waste 
Prevention, Recycling, and Federal Acquisition'' (63 FR 49643, 
September 14, 1998).

II. What Is the Background for 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. After EPA designates an item, RCRA 
requires that each procuring agency, when purchasing a designated item, 
must purchase that item made of the highest percentage of recovered 
materials practicable.
    Executive Order 13101 establishes the procedure 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. 
Concurrent with the CPG, EPA must publish recommended procurement 
practices for purchasing designated items, including recovered material 
content ranges, in a related Recovered Materials Advisory Notice 
(RMAN). The Executive Order also directs EPA to update the CPG every 2 
years and to issue RMANs periodically to reflect changing market 
conditions.
    The first CPG (CPG I) was published on May 1, 1995 (60 FR 21370). 
It established eight product categories, designated 19 new items in 
seven of those categories, and consolidated five

[[Page 68816]]

earlier item designations.\1\ At the same time, EPA also published a 
notice of availability of 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 an RMAN II 
notice (62 FR 60975). Paper Products RMANs were issued on May 29, 1996 
(61 FR 26985) and June 8, 1998 (63 FR 31214). On January 19, 2000, EPA 
published CPG III (65 FR 3070), which designated an additional 18 
items. At the same time, EPA published an RMAN III notice (65 FR 3082). 
On August 28, 2001, EPA published a proposed CPG IV (66 FR 45256), 
which proposed to designate an additional 11 items. At the same time, 
EPA published a draft RMAN IV notice (66 FR 45297). EPA expects to 
promulgate the final CPG IV and publish a notice concerning the 
availability of RMAN IV in the near future. For more information on 
CPG, go to the EPA Web site at http://www.epa.gov/cpg/.
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    \1\ Between 1983 and 1989, EPA issued five guidelines for the 
procurement of products containing recovered materials, which were 
previously codified at 40 CFR parts 248, 249, 250, 252, and 253. 
These products include cement and concrete containing fly ash, paper 
and paper products, re-refined lubricating oils, retread tires, and 
building insulation.
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    Today, in CPG V, EPA is proposing to revise the current compost 
designation to include composts made from manure or biosolids, and also 
designate fertilizers made from recovered organic 
materials.2 3 Both of these items fall under the Landscaping 
Products category of designations in the CPG.
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    \2\ A number of parties have asked EPA to consider the following 
items for future CPG designations: asphalt, electronics, industrial 
ceramics, offset guardrail blocks, roofing sealants and refuse-
derived fuel, EPA will consider these for future designation.
    \3\ This regulatory proposal is an important component of EPA's 
recently announced ``Resource Conservation Challenge,'' which is 
designed to encourage and provide new incentives for increased reuse 
and recycling of materials (for further information on this 
initiative, see www.epa.gov/epaoswer/osw/conserve/index.htm.)
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A. What Criteria Does EPA Use for Selecting Items for Designation?

    While not limiting consideration to these criteria, RCRA section 
6002(e) requires EPA to consider the following when determining which 
items it will designate:
    (1) Availability of the item;
    (2) Potential impact of the procurement of the item by procuring 
agencies on the solid waste stream;
    (3) Economic and technological feasibility of producing the item; 
and
    (4) Other uses for the recovered materials used to produce the 
item.
    EPA consulted with Federal procurement and requirement officials to 
identify other criteria to consider when selecting items for 
designation. Based on these discussions, the Agency concluded that the 
factors set forth in RCRA section 6002(c) should also be considered in 
its selection decisions. This provision requires each procuring agency 
that procures an item designated by EPA to procure the item composed of 
the highest percentage of recovered materials practicable, while 
maintaining a satisfactory level of competition. A procuring agency, 
however, may decide not to procure an EPA-designated item containing 
recovered materials if it determines: (1) The item is not available 
within a reasonable period of time, (2) the item fails to meet the 
performance standards set forth in the Agency's specification, or (3) 
the item is available only at an unreasonable price.
    EPA recognized that the above criteria limit the conditions under 
which procuring agencies must purchase EPA-designated items with 
recovered materials content, and, thereby, could limit the potential 
impact of an individual item designation on the demand for that 
recovered content item in the U.S. economy. (The limitations of RCRA 
section 6002(c) also effectively describe the circumstances in which a 
designated item is ``available'' for purposes of the statute.) For 
these reasons, EPA is also taking into account the limitations cited in 
RCRA section 6002(c) in its selection of items for designation in 
today's proposed CPG V. Thus, the Agency considers the following 
criteria in selecting items for designation: (1) use of materials found 
in solid waste; (2) economic and technological feasibility and 
performance; (3) impact of government procurement, availability and 
competition; and (4) other uses for recovered materials. These criteria 
are discussed in detail in Section II of the document entitled, 
``Background Document for Proposed CPG V and Draft RMAN V.'' A copy of 
this document is included in the RCRA public docket for this rule.
    EPA has adopted two approaches in its designation of items that are 
made with recovered materials. For some items, such as paper and paper 
products, the Agency designates broad categories of items and provides 
information in the related RMAN as to their appropriate applications or 
uses. For other items, such as plastic trash bags, EPA designates 
specific items, and, in some instances, includes in the designation the 
specific types of recovered materials or applications to which the 
designation applies. The Agency explained these approaches to 
designating items in the preamble to CPG I (60 FR 21373, May 1, 1995).
    The Agency has learned that some procuring agencies may erroneously 
believe that the designation of a broad category of items in a CPG 
requires them (1) to procure all items included in such category with 
recovered materials content and (2) to establish an affirmative 
procurement program for the entire category of items, even where 
specific items within the category may not meet current performance 
standards. This is not required under RCRA as implemented through the 
CPGs and RMANs. RCRA section 6002 does not require a procuring agency 
to purchase recovered-content items that are not available or that do 
not meet a procuring agency's specifications or reasonable performance 
standards for the contemplated use. Further, section 6002 does not 
require a procuring agency to purchase such items if the item with 
recovered materials content is only available at an unreasonable price 
or the purchase of such item is inconsistent with maintaining a 
reasonable level of competition. However, EPA stresses that, when 
procuring any product for which a recovered materials alternative is 
available that meets the procuring agency's performance needs, the 
procuring agency should seek to purchase the product made with the 
highest percentage of recovered materials practicable.
    The items proposed for designation today have all been evaluated 
with respect to EPA's criteria. Details of these evaluations are 
discussed in the ``Background Document for Proposed CPG V and RMAN V. 
Section IV of this preamble provides a summary of EPA's rationale for 
designating these items.

B. How Can I Comment on EPA's Proposed Rule?

    EPA requests comments and information throughout this preamble. In 
general, the Agency is requesting comments on: (1) the items selected 
for designation and (2) the accuracy of the information presented in 
the discussions of the basis of the item designations. Requests for 
specific comments and information are included in the narrative 
discussions for each of the designated items, which follow in Section 
IV.
    EPA also is requesting comments on the draft RMAN V published in 
the notice section of today's Federal Register. It includes procurement 
methods for each of the items EPA is proposing to designate today.

[[Page 68817]]

C. Where Can I Find Additional Information on This Proposed Rule?

    For additional background information, including information on 
RCRA requirements, Executive Order directives, and the criteria and 
methodology for selecting the proposed designated items, please consult 
``Background Document for Proposed CPG V and Draft RMAN V.'' 
Information on obtaining this background document is provided in 
Section VII, Supporting Information and Accessing Internet.

III. What Are the Definitions of Terms EPA Used in Today's Proposed 
Rule?

    Today, in Sec.  247.3, EPA is proposing to revise the previous 
definition of compost from CPG III (65 FR 3070) and add the term, and a 
definition for, ``organic fertilizer.'' Specifically, EPA is proposing 
to define compost as ``* * * 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,'' and define organic fertilizer as ``* * * a single or blended 
substance, made from organic matter, such as plant and animal by-
products, manure-based/biosolid products, and rock and mineral powders, 
that contains one or more recognized plant nutrient(s) and is used 
primarily for its plant nutrient content and is designed for use or 
claimed to have value in promoting plant growth.'' These new 
definitions are based on common industry and United States Department 
of Agriculture (USDA) definitions. EPA specifically requests comments 
on each of these definitions.

IV. Landscaping Products

A. Compost Made From Manure or Biosolids

    The information obtained by EPA demonstrates that compost made from 
manure or biosolids is commercially available. Therefore, today in 
Sec.  247.15(b), EPA proposes to revise the current compost designation 
to include compost made from manure or biosolids as an item whose 
procurement will carry out the objectives of section 6002 of RCRA. 
Furthermore, in order to simplify the designation of compost and make 
it easier for procuring agencies to track and report their purchases of 
compost, the Agency is also proposing to amend the previous 
designations of yard trimmings compost and food waste compost and 
consolidate them with the designation of compost made from manure or 
biosolids into one item called ``compost made from recovered organic 
materials.'' EPA believes that these four organic materials (i.e., yard 
waste, food waste, manure, and biosolids) are the most commonly used in 
commercially available compost. EPA is also aware that other organic 
materials could be used in compost, but these are generally mixed with 
one or more of the aforementioned materials. For this reason, EPA is 
proposing to use the general term ``organic materials'' in its compost 
designation, rather than limit the designation to specific types of 
organic materials.
1. Background
    Compost has a variety of uses and improves soil quality and 
productivity as well as preventing and controlling erosion. Mixed 
organic materials, such as animal manure, yard trimmings, food waste, 
and biosolids, must go through a controlled heat process before they 
can be used as high quality, biologically stable, and mature compost. 
The U.S. Composting Council defines compost as the stabilized and 
sanitized product of composting; compost is largely decomposed material 
and is in the process of humification (curing). Compost has little 
resemblance in physical form to the original material from which it was 
made. Compost is a soil amendment, to improve soils. Compost is not a 
complete fertilizer unless amended, although composts contain 
fertilizer properties, e.g., nitrogen, phosphorus, and potassium, that 
must be included in calculations for fertilizer application.
2. Rationale for Designation
    EPA has concluded that composts made from recovered organic 
materials meet the statutory criteria for designation. A final 
designation would require that a procuring agency, when purchasing 
compost, purchase compost containing recovered organic materials, such 
as yard trimmings, food waste, animal manure, and biosolids, when the 
compost meets applicable specifications and performance requirements.
    a. Use of materials in solid waste. Using manure and biosolids 
compost has great potential to make beneficial use of a large amount of 
the animal manure and biosolids produced in the United States. In 
addition, because other materials may serve as bulking agents in manure 
and biosolids compost, designation of this item may increase the level 
of recovered material diverted from the solid waste stream further. The 
recovered materials used as bulking agents include sawdust, extruded 
rice husks, straw, leaves, wood chips, corn stalks, and ground tree and 
shrub trimmings.
    In the United States, beef cattle generate 27 million tons of 
manure solids annually and dairy cattle in confinement produce 
approximately 21 million tons of solids annually. Swine produce about 
16 million tons of solid waste annually.
    EPA estimates that the 16,000 public owned treatment works in the 
United States generate approximately 7 million tons of sewage sludge 
annually. Until 1992, millions of tons of biosolids were dumped into 
the Atlantic Ocean. This practice, however, was made illegal as a 
result of public concern over ocean pollution. About 60 percent of all 
sewage sludge is treated to generate biosolids that are beneficially 
used as a fertilizer on farmland. Of the remainder, 17 percent ends up 
buried in a landfill; 20 percent is incinerated; and about 3 percent is 
used as landfill or mine reclamation cover.
    b. Technically proven uses. Compost can be used in a variety of 
applications including:
    [sbull] Soil enrichment: agriculture (soil conditioning, fertilizer 
amendment, erosion control, development of marginal lands, mulch, 
rooting medium, sod production); silviculture; horticulture.
    [sbull] Pollution remediation (treatment of contaminated soils and 
reclamation of mining waste).

In addition to the primary benefits achieved from using compost in 
these ways, these applications have the added benefit of preventing 
pollution by reducing the amount of chemicals normally used and 
reducing nonpoint source pollution and VOC emissions associated with 
those chemicals.
    It should also be noted that, if improperly managed, animal manures 
generated by beef feedlot and dairy operations can and have created 
significant environmental problems, including human health issues 
caused by contamination of surface water and groundwater. Using animal 
manures as a raw material for compost, as opposed to applying it 
directly to the land or stockpiling it, can alleviate many of these 
problems, while providing an important agricultural service.
    EPA and USDA finalized a rule that requires Concentrated Animal 
Feeding Operations (CAFOs) to obtain permits, submit annual reports, 
and develop and follow plans for handling manure and wastewater (68 FR 
7176, February 12, 2003). In EPA's view, this rule may encourage 
feeding operations to compost their manure as an agricultural or 
landscaping product. This will not only benefit the environment, but 
more of this compost will be available for purchase and use.
    In addition, EPA issued regulations in 1993 that limit the 
pollutants and

[[Page 68818]]

pathogens in biosolids, entitled ``The Standards for the Use or 
Disposal of Sewage Sludge,'' otherwise known as ``the Part 503 
Biosolids Rule.'' (40 CFR part 503) If biosolids are included as part 
of the compost, the processing and product are subject to the Part 503 
Biosolids Rule. Furthermore, if the finished compost product meets 40 
CFR part 503 Biosolids Rule Class A specifications for the highest 
level of pathogen and vector control (as described in section 2.3.1 of 
part 503) and specific metals limits, the compost product can be widely 
used, like any other fertilizer or soil-conditioning product.
    Most States have their own regulations governing composting 
facilities and the marketing of compost products. The U.S. Composting 
Council (USCC) has developed protocols, called ``Test Methods for the 
Examination of Composting and Compost (TMECC),'' which are standardized 
methods for the composting industry to test and evaluate compost and 
verify the physical, chemical, and biological characteristics of 
composting source materials and compost products. The TMECC also 
includes material testing guidelines to ensure product safety and 
market claims. USCC's Seal of Testing Assurance program includes 
standards for testing procedures of composted materials for nutrients, 
moisture, salt content, and chemicals.
    The U.S. Department of Transportation's (U.S. DOT) Standard 
Specifications for Construction of Roads and Bridges on Federal Highway 
Projects 1996 specifies mature compost for use as a roadside 
improvement material.
    Pursuant to recently passed legislation, USDA will be issuing 
guidelines on biobased products which could include composts made from 
plant or animal byproducts. Any specifications issued under the USDA 
guidelines which may be germane to the CPG designation and RMAN 
recommendations may be referenced by EPA in the future.
    c. Impact of government procurement. A Presidential memorandum 
entitled ``Environmentally and Economically Beneficial Practices on 
Federal Landscaped Ground'' was signed on April 26, 1994 encourages 
agencies to develop practical and cost-effective landscaping methods 
that preserve and enhance the local environment. This memorandum 
requires the use of mulch and compost by Federal agencies and in 
Federally funded projects.
    Government agencies typically use compost and fertilizers for 
numerous applications, including landscaping, agriculture, 
bioremediation, roadside maintenance, and erosion control. Although EPA 
does not know the exact amounts of these materials used by agencies, it 
believes it is significant, and that composts made from manure or 
biosolids could be used in many of these applications.
    d. Other Uses for Recovered Materials. In selecting items for 
consideration, EPA also considers the following: (1) The possibility of 
one recovered material displacing another recovered material as 
feedstock, thereby resulting in no net reduction in materials requiring 
disposal; (2) the diversion of recovered materials from one product to 
another, possibly creating shortages in feedstocks for one or both 
products; and (3) the ability of manufacturers to obtain recovered 
materials in sufficient quantities to produce the item under 
consideration.
    While other uses for recovered materials are a consideration, they 
are not a determining factor when selecting items for designation, 
because EPA believes an item designation would have the positive effect 
of expanding markets for all recovered materials used to manufacture 
the designated item.

B. Fertilizers Made From Recovered Organic Materials

    The information obtained by EPA demonstrates that fertilizers 
containing recovered organic materials are commercially available. 
Therefore, today in Sec.  247.15(f), EPA proposes to designate 
fertilizers containing recovered organic materials as an item whose 
procurement will carry out the objectives of section 6002 of RCRA.
1. Background
    In order to compensate for the limited supply of vital nutrients 
and to provide the plant with the necessary environment to fully 
mature, fertilizers are often added to soil. The most essential 
nutrients--nitrogen, phosphorus, and potassium--are often expressed as 
the N-P-K ratio following the name of a fertilizer (e.g., 10-10-10).
    Many sources of organic matter are available for the production of 
organic fertilizers, including plant and animal by-products, manure-
based/biosolid products, and rock and mineral powders.
    Organic fertilizers can be used to replace traditional chemical 
fertilizers in various applications, such as agriculture and crop 
production, landscaping, horticulture, parks and other recreational 
facilities, on school campuses, and for golf course and turf 
maintenance.
2. Rationale for Designation
    EPA has concluded that fertilizers containing recovered organic 
materials meet the statutory criteria for selecting items for 
designation. A final designation would require that a procuring agency, 
when purchasing fertilizers, procure those that contain recovered 
organic materials when they meet applicable specifications and 
performance requirements.
    a. Use of materials in solid waste. Organic fertilizers can contain 
up to 100 percent recovered materials and can have a mixture of various 
plant, animal, and mineral content depending on the desired use and the 
manufacturer. The use of organic fertilizers can help reduce the amount 
of agricultural by-products, manufacturing and processing waste, and 
other materials that would otherwise have to be disposed, stockpiled, 
or treated. These organic materials may be combined with other waste 
materials, such as saw dust or wood shavings, as is the case with 
poultry fertilizer. The amount of these wastes diverted from the waste 
stream varies depending on the materials used and the size of the farm 
or agricultural activity that supplies the materials.
    b. Technically proven uses. Organic fertilizers have the potential 
to provide various benefits:
    [sbull] Improve physical soil properties, either directly or by 
activating living organisms in the soil.
    [sbull] Provide better soil structure as a result of soil loosening 
and crumb stabilization.
    [sbull] Increase water-holding capacity and soil aeration.
    [sbull] Enhance uptake and utilization of plant nutrients, which 
leads to increased pathogen resistance and hardiness.
    [sbull] Slow the leaching of nutrients from soil, resulting in 
extended availability through the growing season.
    As noted above, and pursuant to recently passed legislation, USDA 
will be issuing guidelines on biobased products which could include 
fertilizers made from plant or animal matter. Any specifications issued 
under the USDA guidelines which may be germane to the CPG designation 
and RMAN recommendations may be referenced by EPA in the future.
    The Organic Materials Review Institute (OMRI) has developed lists 
of materials allowed and prohibited for use in the production, 
processing, and handling of organically grown products. Samples from 
these lists can be found at http://www.omri.org. It also should be 
noted that organic fertilizers being made or sold should comply with 
all

[[Page 68819]]

applicable Federal, State, and local regulations. Many states have 
their own guidelines and regulations for fertilizer production and use. 
For example, a state may prohibit the use of organic fertilizer made 
with biosolids on agricultural food crops.
    In addition, as mentioned above, biosolids can be used in the 
production of organic fertilizer and must meet the requirements 
specified in EPA's part 503 Biosolids Rule before they can be 
beneficially used. The 40 CFR part 503 Biosolids Rule land application 
requirements ensure that any biosolids that are land applied contain 
pathogens and metals that are below specified levels to protect the 
health of humans, animals, and plants.
    In proposing to designate fertilizers made from recovered organic 
materials, EPA is not placing any limitations on the organic materials, 
but rather is relying on Federal, State, and local regulations and 
guidance, as well as existing industry standards. EPA is requesting 
comment on whether it should place any limitations on the recovered 
organic materials contained in the fertilizers that the Agency today is 
proposing to designate, and on what those limitations should be.
    c. Impact of government procurement. Government agencies purchase, 
or use appropriated funds to purchase, fertilizers. Although most 
government agencies would likely purchase fertilizers indirectly via a 
contracted landscaping service, it is nevertheless clear that agencies 
have a demand for fertilizers, for applications such as landscaping, 
golf course and turf maintenance, and as an amendment for grass, 
bushes, and trees in parks and recreational facilities. According to 
one procurement official, even though fertilizers are generally part of 
contracted services, agencies are at liberty to specify a particular 
type of nutrient analysis for any type of fertilizer (organic or 
synthetic) they would like to use.
    EPA does not have specific data on the amount of fertilizers 
procured by government agencies, although EPA believes that the 
quantities are substantial. Thus, the agency believes these items are 
procured in sufficient quantities to support the designation of these 
items.
    d. Other Uses for Recovered Materials. In selecting items for 
consideration, EPA also considers the following: (1) The possibility of 
one recovered material displacing another recovered material as 
feedstock, thereby resulting in no net reduction in materials requiring 
disposal; (2) the diversion of recovered materials from one product to 
another, possibly creating shortages in feedstocks for one or both 
products; and (3) the ability of manufacturers to obtain recovered 
materials in sufficient quantities to produce the item under 
consideration.
    While other uses for recovered materials are a consideration, they 
are not a determining factor when selecting items for designation, 
because EPA believes an item designation would have the positive effect 
of expanding markets for all recovered materials used to manufacture 
the designated item.

V. Where Can Agencies Get More Information on the Availability of EPA-
Designated Items?

    EPA has identified a number of manufacturers and vendors of the 
items proposed for designation in today's rule. Once the item 
designations in today's proposal become final, a list of these 
companies will be placed in the OSWER Docket for this action and will 
be added to EPA's CPG Supplier Database, which is accessible from the 
CPG Web site http://www.epa.gov/cpg. This database will be updated 
periodically as new sources of designated items are identified and 
product information changes. Procuring agencies should contact the 
manufacturers and vendors directly to discuss their specific needs and 
to obtain detailed information on the availability and price of 
recycled products meeting those needs.
    Other information may be available from GSA, DLA, state and local 
recycling offices, private corporations, and trade associations. Refer 
to Appendix II of the document, ``Background Document for Proposed CPG 
V and Draft RMAN V,'' located in the OSWER Docket, for more detailed 
information on these sources of information.

VI. 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 
proposed 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.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review. EPA estimates that the costs 
associated with today's proposed rule are well below the $100 million 
threshold. EPA 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 proposed rule is included in the Economic Impact Analysis 
for this proposed rule, a copy of which is in the OSWER docket.
1. Summary of Costs
    As shown in Table 2 below, EPA estimates that the annualized costs 
of today's proposed rule will range from $1.2 to $2.3 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. 
Details of the costs associated with today's proposed rule are provided 
in the Economic Impact Analysis for this proposed rule.

[[Page 68820]]



  Table 2.--Summary of Annualized Costs of Proposed CPG V Amendments to
                         All Procuring Agencies
------------------------------------------------------------------------
                                                           Best estimate
                                               Total           total
            Procuring agency                annualized      annualized
                                           costs ($1000)   costs ($1000)
------------------------------------------------------------------------
Federal Agencies........................  $577-$1,153             $1,153
States..................................  207-413                    413
Local Governments.......................  361-722                    722
Contractors.............................    10-20                     20
                                         -------------------------------
    Total...............................  1,154-2,308              2,308
------------------------------------------------------------------------

    As a result of today's proposed 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 proposed 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 
proposed 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 proposed 
rule. For example, 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 proposed 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 raw material 
extraction processes.
    Recycling can affect the more efficient use of natural resources. 
For many products, the use of recovered materials in manufacturing can 
result in significantly lower energy and material input costs than when 
virgin raw materials are used; reduce the generation and release of air 
and water pollutants often associated with manufacturing; and reduce 
the environmental impacts of mining, harvesting, and other extraction 
of natural resources. In addition to conserving non-renewable resources 
and reducing the environmental impacts associated with resource 
extraction and processing, recycling can also divert large amounts of 
materials from landfills, thus reducing waste disposal costs and 
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 proposed 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. Paperwork Reduction Act

    This proposed rule contains no new information collection 
requirements. Therefore, this rule is not subject to the Paperwork 
Reduction Act.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.

[[Page 68821]]

    For purposes of assessing the impacts on small entities of today's 
rule, small entity is defined as: (1) A small business as defined by 
RFA default definitions for small business (based on Small Business 
Administration size standards); (2) a small governmental jurisdiction 
that is a government of a city, county, town, school district, or 
special district with a population of less than 50,000; or (3) a small 
organization that is any not-for-profit enterprise that is 
independently owned and operated and is not dominant in its field.
    EPA evaluated the potential costs of its proposed designations to 
determine whether its actions would have a significant impact on a 
substantial number of small entities. In the case of small entities 
that are small governmental jurisdictions, EPA has concluded that the 
proposal, if promulgated, 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 
2 items because it is improbable that such jurisdictions will purchase 
more than $10,000 of any designated item. Consequently, RCRA section 
6002 would not apply to their purchases of designated items. Moreover, 
there is no evidence that complying with the requirements of RCRA 
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.
    Furthermore, EPA similarly concluded that the economic impact on 
small entities that are small businesses would not be significant. Any 
costs to small businesses that are ``procuring agencies'' (and subject 
to RCRA section 6002) are likely to be insubstantial. 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 a state or 
Federal agency is contracting with a supplier to obtain a designated 
item, then the cost of the designated item (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.
    After considering the economic impacts of today's proposed rule on 
small entities, EPA certifies that the proposal, if promulgated, would 
not have a significant economic impact on a substantial number of small 
entities.
    This proposal, therefore, does not require a regulatory flexibility 
analysis. The basis for EPA's conclusions that today's proposed rule, 
if adopted, will not have a significant impact on a substantial number 
of small entities is described in greater detail in the EIA for the 
proposed rule.
    While not a factor relevant to determining whether the proposed 
rule will have a significant impact for RFA purposes, EPA has concluded 
that the effect of today's proposed 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.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202, EPA generally 
must prepare a written statement, including cost-benefit analysis, for 
proposed and final rules with Federal mandates that may result in 
estimated costs to state, local, or tribal governments in the 
aggregate, or to the private sector, of $100 million or more in any one 
year. When such a statement is required for EPA rules, under section 
205 of the Act, EPA must identify and consider alternatives, including 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. EPA must select that 
alternative, unless the Administrator explains in the final rule why it 
was not selected or it is inconsistent with law. Before EPA establishes 
regulatory requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must develop under 
section 203 of the Act a small government agency plan. The plan must 
provide for notifying potentially affected small governments, giving 
them meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising them on compliance with the 
regulatory requirements.
    EPA has determined that today's proposed rule does not include a 
Federal mandate that may result in estimated annualized costs of $100 
million or more to either State or local or tribal governments in the 
aggregate, or to the private sector. To the extent enforceable duties 
arise as a result of this proposed rule on State and local governments, 
they are exempt from inclusion as Federal intergovernmental mandates if 
such duties are conditions of Federal assistance. Even if they are not 
conditions of Federal assistance, such enforceable duties do not result 
in a significant regulatory action being imposed upon State and local 
governments since the estimated aggregate cost of compliance for them 
are not expected to exceed, at the maximum, $1.1 million annually. The 
cost of enforceable duties that may arise as a result of today's 
proposed rule on the private sector are estimated not to exceed $20,000 
annually. Thus, the proposed rule is not subject to the written 
statement requirement in sections 202 and 205 of the Act.
    The designated items included in the proposed CPG V may give rise 
to additional obligations under section 6002(i) (requiring procuring 
agencies to adopt affirmative procurement programs 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, $1.1 million annually. In compliance with Executive 
Order 12875 entitled Enhancing the Intergovernmental Partnership, 58 FR

[[Page 68822]]

58093 (October 28, 1993), 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 a 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 a 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, Environmental Defense, 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, $1.1 million annually. The 
requirements do not uniquely affect small governments because they have 
the same ability to purchase these designated items as other entities 
whose duties result from today's rule. Additionally, use of designated 
items affects small governments in the same manner as other such 
entities. Thus, any applicable requirements of section 203 of the Act 
have been satisfied.

E. 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.''
    This proposed 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 proposed rule will not 
impose substantial costs on states and localities. A final rule would 
require procuring agencies to perform certain activities pursuant to 
RCRA section 6002, including rule review and implementation, and for 
Federal agencies, reporting and record keeping. As noted above, EPA 
estimates that the total annualized costs of today's proposed rule will 
range from $1.2-$2.3 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, Executive Order 13132 does not apply 
to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13175, 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 13175 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the 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 13175 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 proposed rule does not significantly or uniquely affect the 
communities of Indian tribal governments. The proposed 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 13175 do not apply to this proposal.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045, entitled ``Protection of Children From 
Environmental Health 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 Executive Order 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 Executive Order has the 
potential to influence the regulation. This proposed rule is not 
subject to Executive Order 13045 because it does not involve decisions 
regarding environmental health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (``NTTAA''), Pub. L. No. 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

[[Page 68823]]

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 proposed 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 reference to 
any known industry 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.

VII. Supporting Information and Accessing Internet

    The index of supporting materials for today's proposed CPG V is 
available in the OSWER Docket and on the Internet. The address and 
telephone number of the OSWER Docket are provided in the SUPPLEMENTARY 
INFORMATION section above. To access information on the Internet, go to 
the EPA Dockets Web site at http://www.epa.gov/edocket/. The index and 
the following supporting materials are available in the OSWER Docket 
and on the Internet:
    ``Background Document for Proposed CPG V and Draft RMAN V,'' U.S. 
EPA, Office of Solid Waste and Emergency Response, March 2003.
    ``Economic Impact Analysis for Proposed Comprehensive Procurement 
Guideline V,'' U.S. EPA, Office of Solid Waste and Emergency Response, 
March 2003.
    Copies of the following supporting materials are available for 
viewing at the OSWER Docket only:
    ``Recovered Materials Product Research for the Comprehensive 
Procurement Guideline V,'' Draft Report, December 2002.

List of Subjects in 40 CFR Part 247

    Environmental protection, Government procurement, Recycling.

    Dated: November 25, 2003.
Michael O. Leavitt,
Administrator.
    For the reasons discussed in the preamble, EPA proposes to amend 40 
CFR part 247 as follows:

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

    1. The authority citation for part 247 continues 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. Amend Sec.  247.3 by revising the definition of ``Compost'' and 
by adding in alphabetical order a new definition for ``Organic 
fertilizer'' to read as follows:


Sec.  247.3  Definitions.

* * * * *
    Compost 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.
* * * * *
    Organic fertilizer is a single or blended substance, made from 
organic matter such as plant and animal by-products, manure-based/
biosolid products, and rock and mineral powders, that contains one or 
more recognized plant nutrient(s) and is used primarily for its plant 
nutrient content and is designed for use or claimed to have value in 
promoting plant growth.
* * * * *
    3. In Sec.  247.15, revise paragraph (b) and add paragraph (f) to 
read as follows:


Sec.  247.15  Landscaping products.

* * * * *
    (b) Compost made from recovered organic materials.
* * * * *
    (f) Fertilizers made from recovered organic materials.
* * * * *
[FR Doc. 03-30266 Filed 12-9-03; 8:45 am]
BILLING CODE 6560-50-P