[Federal Register Volume 69, Number 84 (Friday, April 30, 2004)]
[Rules and Regulations]
[Pages 24028-24038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9864]



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Part V





Environmental Protection Agency





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40 CFR Part 247



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

  Federal Register / Vol. 69, No. 84 / Friday, April 30, 2004 / Rules 
and Regulations  

[[Page 24028]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 247

[RCRA-2001-0047; SWH-FRL-7655-2]
RIN 2050-AE23


Comprehensive Procurement Guideline IV for Procurement of 
Products Containing Recovered Materials

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) today is amending 
the Comprehensive Procurement Guideline (CPG) by designating seven new 
items that are or can be made with recovered materials, including: 
modular threshold ramps; nonpressure pipe; roofing materials; office 
furniture; rebuilt vehicular parts; bike racks; and blasting grit. In 
addition, EPA is revising the designations for three items, including 
cement and concrete, railroad grade crossing surfaces, and polyester 
carpet. For cement and concrete, EPA is adding cenospheres and silica 
fume as recovered material options. For railroad grade crossing 
surfaces, EPA is adding recovered wood and plastic as recommended 
recovered materials. For polyester carpet, EPA is revising its 
designation to designate polyester carpet for moderate end-uses only, 
as defined by the Carpet and Rug Institute.
    The CPG implements portions of the Resource Conservation and 
Recovery Act (RCRA) and the Executive Order ``Greening the Government 
Through Waste Prevention, Recycling, and Federal Acquisition,'' 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 such 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 products, thereby fostering markets for materials 
recovered from solid waste.

EFFECTIVE DATES: This rule is effective on May 2, 2005.

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 Terry Grist at (703) 308-7257 or Sue Nogas at 
(703) 308-0199.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. No. RCRA-2001-0047. All documents in the docket are listed in the 
EDOCKET index at http://www.epa.gov/edocket Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in EDOCKET or in hard copy 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.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Regulated Entities

    This action may potentially affect procuring agencies that purchase 
the following items: Cement and concrete; polyester carpet for moderate 
end-use; railroad grade crossing surfaces; modular threshold ramps; 
nonpressure pipe; roofing materials; office furniture; rebuilt 
vehicular parts; bike racks; and blasting grit. 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.

   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 or Sue Nogas at (703) 308-0199.
    As noted above, 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. Therefore, 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.

[[Page 24029]]

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

    1. 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/.
    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 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. 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 above. Once in 
the system, select ``search,'' then key in the appropriate docket 
identification number.

Preamble Outline

I. What is the statutory authority for this amendment?
II. Why is EPA taking this action?
III. What criteria did EPA use to select items for designation?
IV. What are the definitions of terms used in today's action?
V. What did commenters say about the proposed CPG IV and draft RMAN 
IV?
    A. General Comments
    1. Designation of Steel
    2. Designation of Additional Items
    3. Other General Comments
    B. Comments on Proposed Item Designations
    1. Tires
    2. Rebuilt Vehicular Parts
    3. Cement and Concrete Containing Cenospheres and Silica Fume
    4. Nylon Carpet and Nylon Carpet Backing
    5. Bike Racks
    6. Polyester Carpet
VI. Where can agencies get information on the availability of EPA-
designated items?
VII. 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
    J. Congressional Review Act
VIII. 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 
in compliance with 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. 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. 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.
    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 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 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).
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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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    On August 28, 2001, EPA published a proposed CPG IV (66 FR 45256), 
which proposed to designate an additional 11 items--including cement 
and concrete containing cenospheres and silica fume--and revise two 
other previously designated items.\2\ At the same time, EPA published a 
draft RMAN IV notice (66 FR 45297), which provided draft 
recommendations on purchasing the proposed designated items. (For more 
information on CPG, go to the EPA Web site at http://www.epa.gov/cpg/.)
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    \2\ EPA now considers that two of the items that it proposed for 
designation (cement and concrete containing cenospheres and silica 
fume) were in actuality proposed revisions to the existing 
designation for cement and concrete containing coal fly ash and 
ground granulated blast furnace slag.
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    Today, EPA is designating seven of the items that were proposed: 
modular threshold ramps; nonpressure pipe; roofing materials; office 
furniture; rebuilt vehicular parts; bike racks; and blasting grit. In 
addition, in today's action, EPA is revising the designations for three 
items: cement and concrete, railroad grade crossing surfaces, and 
polyester carpet. EPA explained fully the basis for its proposed 
designations and revised designations in proposed CPG IV at 66 FR 
45256. These form the basis for today's decision to designate seven 
items and to revise designations for three others. For the reasons 
explained in Section V of this notice, EPA is not issuing final 
designations at this time for two of the items proposed in the proposed 
CPG IV: carpet made from nylon fiber facing and/or nylon carpet backing 
made from recovered materials, and tires containing recovered rubber. 
The seven newly designated items are listed below by product category.

Construction Products
    Modular threshold ramps
    Nonpressure pipe
    Roofing materials
Nonpaper Office Products
    Office furniture
Vehicular Products
    Rebuilt vehicular parts
Miscellaneous
    Bike racks
    Blasting Grit

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III. 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
    (4) Other uses for the recovered materials used to produce the item
    EPA also consulted with federal procurement 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 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
     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) 
IV and Draft Recovered Materials Advisory Notice (RMAN) IV--Supporting 
Analyses.'' The RCRA public docket for the proposed CPG IV rule, Docket 
No. RCRA-2001-0047, 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.

    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 items does not maintain a 
reasonable level of competition. See also 40 CFR Sec.  247.2(d). 
However, EPA stresses that the statute requires that a procuring agency 
must purchase the product made with the highest percentage of recovered 
materials practicable in the absence of the circumstances identified 
above.
    The items designated today have all been evaluated against EPA's 
criteria. The Agency discusses these evaluations in the ``Background 
Document for the Final CPG IV/RMAN IV,'' which the Agency has placed in 
the docket for the final CPG IV and RMAN IV. You can also access the 
document electronically. (See Section VIII below for Internet access 
directions.)

IV. 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: cenospheres; silica fume; modular threshold ramps; 
nonpressure pipe; roofing materials; office furniture; rebuilt 
vehicular parts; bike racks; and blasting grit. These definitions are 
based on industry definitions, such as the American Society for Testing 
and Materials (ASTM) or other industry standards. Where industry 
definitions do not exist for the designated items, EPA's definitions 
describe the scope of items that the Agency is designating.
    For several items that the Agency is designating today (i.e., 
railroad grade crossing surfaces, modular threshold ramps, nonpressure 
pipe, roofing materials, office furniture, bike racks, and blasting 
grit), EPA recommends in the final RMAN IV 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. Limiting the Agency's recommendation to only postconsumer 
content levels would be inconsistent with RCRA's requirement that EPA 
designate items which are or can be made with recovered materials whose 
procurement will carry out the objective of section 6002--the 
procurement of items composed of the highest percentage of recovered 
materials practicable. The statute defines ``recovered materials'' to 
include waste materials and byproducts which have been recovered or 
diverted from solid waste. Section 1004(19) of RCRA, 42 U.S.C. 
6903(19). If the Agency only recommended postconsumer content levels, 
it would fail to take into account the contribution that manufacturers 
using other manufacturers' byproducts

[[Page 24031]]

as feedstock have made and can make 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.

V. What Did Commenters Say About the Proposed CPG IV and Draft RMAN IV?

    Twenty-nine commenters responded to the proposed CPG IV and the 
draft RMAN IV. These commenters represented various interests, 
including but not limited to Federal, state, and local government 
agencies; product manufacturers; trade associations; environmental 
interest groups; and product users.\3\
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    \3\ As noted previously, EPA is not issuing final designations 
for two of the items proposed in CPG IV--tires containing recovered 
rubber and nylon fiber facing and/or nylon carpet backing made from 
recovered materials. Nevertheless, we generally discuss the comments 
received on these items and explain why we are not proceeding to 
finalize them in today's Federal Register.
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    In this section, EPA discusses the major comments that commenters 
provided on the proposed CPG IV. The most significant comments received 
on the draft RMAN IV are discussed in the preamble to the notice of 
availability of the final RMAN IV, which is published in the notices 
section of today's Federal Register. You can find a summary of all 
comments and EPA's responses in the ``Background Document for the Final 
CPG IV/RMAN IV.''

A. General Comments

1. Designation of Steel
    Comment: The Office of the Deputy Under Secretary of Defense 
commented that items manufactured from steel should either not be 
listed, or listed as a generic category rather than as individual 
items. The Office contends that virtually all new steel produced today 
has recovered content, and there is no practical way a purchasing 
officer could influence the recovered material content in steel items, 
such as bike racks. In addition, in the Office's view, there would be 
no way of verifying that a particular batch of steel was made from 
either a basic oxygen furnace or an electric arc furnace. The Office 
added that designating steel bike racks and furniture does not appear 
to support the objectives of RCRA Section 6002 because listing 
individual items would not significantly increase the procurement of 
products made from recovered material or help develop a market for 
recyclable waste materials.
    Response: The CPG designates individual items because agency 
requirements are typically expressed in terms of end products rather 
than raw material inputs. With the exception of large system 
acquisitions, agencies generally procure individual items. In addition, 
RCRA 6002(e)(1) requires EPA to designate ``items'' that are or can be 
made with recovered materials. For these reasons, the CPG designates 
items and organizes them by functional category rather than by material 
type. With regard to verification of the steel manufacturing process 
used to produce a specific steel item, EPA obtained this information 
from the steel industry prior to making its recommendations in the 
RMAN. Therefore, if an item is generally made from steel from an 
electric arc furnace (EAF), EPA's recommendations reflect the recovered 
materials content from that particular process. Likewise, EPA's 
recommendations for items made from steel made in a basic oxygen 
furnace (BOF) reflect the recovered materials content for that process. 
Therefore, agencies need not be concerned with verifying the type of 
steel process used to make the item. EPA's RMAN recommendations already 
take the type of steel into account. In those cases where a designated 
item is manufactured using both of the steel processes, the ranges of 
recovered materials for both of those processes are provided. 
Therefore, in determining the recovered materials content for any given 
steel item, procuring agencies may use the RMAN ranges provided for 
that item. In cases where an item can be made from both steel 
processes, agencies may use a combination of the ranges of both 
processes to signify the potential range of recovered materials. 
Therefore, the recommended recovered materials content ranges would be 
25%-100% total recovered materials and 16%-67% postconsumer content. 
(EPA also used this method in the draft RMAN recommendations for 
blasting grit.)
    Furthermore, EPA disagrees that designating bike racks and office 
furniture does not support the objectives of RCRA. One of the 
objectives of RCRA is to encourage the procurement of products made 
with recovered materials. Bike racks and office furniture are items 
that can be made from recovered steel as well as from other recovered 
materials. Therefore, designating these items promotes the recovery of 
steel, as well as these other materials. EPA has concluded that if 
products are made from more than one type of recovered material, then 
the procurement guidelines should accurately reflect that fact and 
promote the procurement of all recovered content products, regardless 
of the particular recovered material used. Not to include steel 
products in the CPG could result in a bias against the purchase of 
steel products when procurement officials are considering a purchase of 
several functionally equivalent products made from various recovered 
materials. Furthermore, RCRA requires EPA to make recommendations, 
including recycled content recommendations, for designated items. Since 
bike racks and office furniture are made from recovered steel, as well 
as from other recovered materials, EPA has concluded that it is 
appropriate to include recovered steel among the recovered materials 
listed in the designations for bike racks and office furniture.
2. Designation of Additional Items
    Comment: The Department of Defense suggested additional items for 
future CPG designations, including biobased fuels made from recovered 
cooking oils; roofing shingles (both asphalt and tile) made from 
recovered vinyl, aluminum, and cellulose fiber; and asphalt mixes made 
from crumb rubber.
    Response: EPA will consider biobased fuels made from cooking oils 
as potential CPG items and requests that DOD provide additional 
information, as outlined in EPA's September 20, 1995, Notice and 
Request for Information entitled ``Procedures for Submission of 
Recycled Content Products'' (60 FR 48714). This notice describes the 
criteria used by EPA to designate items, including purchasing barriers; 
the solid waste impacts of an item designation; economic and 
technological feasibility and performance; impact of government 
purchasing; and suggested recovered material content levels.
    With regard to roofing shingles (both asphalt and tile) made from 
recovered vinyl, aluminum, and cellulose fiber, EPA researched these 
types of roofing products and is designating roofing products made from 
recovered aluminum, fiber, and plastic, among various other recovered 
materials, in

[[Page 24032]]

today's rulemaking. EPA also considered the designation of roofing 
shingles made from recovered asphalt, as discussed in the ``Recovered 
Material Product Research for the Comprehensive Procurement Guideline 
IV: Draft Report,'' which is available in the docket for this 
rulemaking. The agency's research indicated that the asphalt used in 
matting, roll roofing, shingles, coatings, modified bitumen, and built-
up roofing is not recovered asphalt. However, EPA did not discount 
roofing products containing asphalt. EPA has included RMAN 
recommendations for these products under the category of the recovered 
material used in the product along with the virgin asphalt. For 
example, if a product contains both asphalt and recovered fiber, EPA's 
recommendations can be found under the ``Fiber (Felt) or Fiber 
Composite'' material category in the RMAN table, implying that the 
fiber is the recovered material in the product, not the asphalt.
    Finally, regarding asphalt mixes made from crumb rubber, EPA is 
currently researching the use of various recovered materials, including 
crumb rubber and recycled asphalt pavement (RAP), in road construction 
applications for possible future designation.
3. Other General Comments
    Comment: The White House Task Force on Recycling requested that EPA 
include examples of solicitation and contract language used by federal 
agencies and others to purchase the proposed designated construction 
products, including cement and concrete containing silica fume, 
nonpressure pipe, roofing materials, and blasting grit.
    Response: The Office of the Federal Environmental Executive (OFEE) 
has workgroups consisting of federal procuring agencies which focus on 
a number of issues, such as record keeping and reporting. The purpose 
of these workgroups is to share information and develop consensus 
programs. EPA will contact procuring agencies, possibly through the 
existing workgroups established by OFEE, to help identify contract 
language that has been used to procure these items and/or to draft 
model language that could be used in solicitations, as well as to share 
any sample language developed with the other federal agencies.
    Comment: OFEE further requested EPA to provide guidance regarding 
unintentional barriers to purchasing the proposed designated 
construction products, and specifically referenced a barrier to the 
purchase of blasting grit created by inappropriate packaging (volume) 
requirements.
    Response: EPA includes general guidance on the development of 
affirmative procurement plans in Appendix V of the background document 
to this final rulemaking. Section A of Appendix V explains that 
agencies are required to examine their specifications for designated 
items and should remove any requirements that constitute barriers to 
their purchase. EPA has revised this section to discuss the need to 
consider unintentional barriers to purchasing designated items, such as 
packaging, color, or cosmetic requirements that have no bearing on the 
item's functionality or performance, but that might prevent its 
purchase with the highest percentage recovered materials practicable. 
EPA has provided guidance in Appendix V of the ``Background Document 
for Final CPG IV/RMAN IV'' and in the final RMAN IV in the ``General 
Recommendations'' section.
    Comment: The U.S. Department of Energy commented that a key problem 
in implementing the CPG has been finding vendors and manufacturers who 
have the designated items available with recycled content. DOE believes 
EPA's vendor list needs to be updated and that a process needs to be 
developed to provide procuring agencies with current information on the 
availability of recycled-content products.
    Response: During 2002, EPA developed and launched a comprehensive, 
searchable online vendor database covering all CPG-designated items and 
more than 2,000 individual vendor entries. This database was tested by 
a number of procuring agencies through a coordinated effort with OFEE 
and is fully operational. The database allows a user to search for 
vendors and suppliers by product category, individual product, or 
material. The purpose of the database system is to provide buyers with 
a more accessible and reliable reference source they can use to 
identify vendors. EPA intends to maintain and update the database on a 
regular basis to ensure that the information is accurate and current, 
given the constraints of obtaining this information from the companies 
themselves.

B. Comments on Proposed Item Designations

    The vast majority of commenters supported the item designations 
proposed in CPG IV and provided only minor comments. A few commenters 
provided major comments on several specific items, as discussed below. 
No commenters provided comments on nonpressure pipe and threshold 
ramps. EPA has included a summary of all comments on the proposed CPG 
IV and our responses in the ``Background Document for the Final CPG IV/
RMAN IV.'' Comments related to the draft RMAN IV are discussed in the 
preamble to the notice of availability of the final RMAN IV, which is 
published in the Notices section of today's Federal Register.
    Based on the item-specific comments received, we are designating 
seven of the items proposed in the proposed CPG IV, and we are not 
finalizing the designations for two other items at this time (carpet 
made from nylon fiber facing and/or nylon carpet backing made from 
recovered materials, and tires containing recovered rubber). This 
section discusses the major comments submitted on several items 
proposed for designation in the proposed CPG IV.
1. Tires
    Comment: The Department of Defense commented that the safety, 
durability, and other environmental impacts of tires containing 
recovered rubber are not adequately addressed to justify designating 
them in the CPG. DOD highlighted several assertions in EPA's research 
regarding tensile strength, heat built-up, tire durability, and 
decreased tread life. It also argued that a shorter tire life will 
result in no overall savings in the use of recovered material, 
producing no net reduction in the amount of solid tire waste produced 
by the overall system.
    Response: At the time of EPA's initial research, the Agency 
identified at least five major U.S. tire manufacturers that were 
incorporating some percentage of crumb rubber into some of their tire 
lines. Based on DOD's comments, however, EPA conducted additional 
research on tires containing recovered rubber. EPA was not able to 
verify to what extent recovered rubber is currently being incorporated 
into tires or obtain answers to any of the safety concerns raised by 
the commenter. Until such time that EPA can obtain current information 
on these issues, we have decided it is not appropriate to include tires 
containing recovered materials as a designated item. EPA will continue 
to conduct research on tires and monitor the tire-making industry to 
determine if designation is feasible at a future time.
2. Rebuilt Vehicular Parts
    Comment: The White House Task Force on Recycling-Office of the 
Federal Environmental Executive questioned what the designation of 
rebuilt automotive parts will accomplish toward the statutory 
objectives of

[[Page 24033]]

reducing solid waste by creating markets for materials recovered from 
solid waste, since most federal agencies are already purchasing them 
and are satisfied with their performance. In addition, The Task Force 
indicated that rebuilt automotive parts are primarily purchased with 
federal credit cards, so it would be difficult for agencies to track 
procurement of them and lead to an administrative burden with no 
appreciable new benefit to the environment.
    Response: EPA's proposal of rebuilt vehicular parts is consistent 
with previous designations for other remanufactured or refurbished 
products, such as reinked printer ribbons and toner cartridges. Motor 
vehicle part rebuilders recover and reclaim thousands of automotive 
components made from plastic and metal that could otherwise be 
landfilled. While EPA realizes that rebuilt vehicular parts may seem to 
be a common practice in the industry, markets for products containing 
recovered materials can fluctuate and directly influence the recovery 
rate of these items in the industry. While the designation of rebuilt 
vehicular parts may not create ``new'' markets, it can help ensure 
market stability, perhaps some market expansion, and continued recovery 
of these items. By designating these items, EPA also has concluded that 
increased environmental awareness with respect to procuring vehicular 
parts and services will contribute positively to an agency's overall 
effort to purchase more environmentally preferable products and 
services.
    With regard to recordkeeping burden, EPA notes that procuring 
agencies have been statutorily required to monitor the procurement of 
designated items, regardless of the method of procurement, since the 
first guidelines were issued in 1983. Therefore, this requirement is 
not new. Furthermore, neither RCRA 6002 nor E.O. 13101 requires that 
the designation of items be based on the relationship between 
administrative burden and the level of benefit to the environment, as 
implied in the comments.
3. Cement and Concrete Containing Cenospheres and Silica Fume
    Comment: The Department of Energy (DOE) submitted a comment 
expressing concerns that cenospheres and silica fume additives may not 
be readily available in all locations. In addition, DOE indicated that, 
although silica fume can be used to produce a higher-strength concrete, 
it has inherent problems of placement, workability, and curing, and is 
considerably more expensive than fly ash. None of DOE's concrete 
vendors are familiar with the application of cenospheres as a concrete 
additive.
    Response: EPA has stated in the past that it recognizes that some 
items or materials may not always be readily available. Under section 
6002(c)(1)(A), any procuring agency may decline to procure designated 
items where such items are not reasonably available within a reasonable 
period of time. Here, EPA's designation simply expands the list of 
recovered materials recommended to procuring agencies when purchasing 
cement and concrete. If an application warrants the use of higher-
strength concrete, an agency may want to consider the use of cement and 
concrete with additional recovered materials, such as cenospheres or 
silica fume. Agencies, however, are not limited to using cement and 
concrete containing silica fume or cenospheres. EPA's research found 
that there is a small market for specialty cement containing 
cenospheres, which is typically used as a patching cement where higher 
strength is desired.
    Comment: The Department of Defense submitted a comment stating that 
cenospheres appear to be a specialty item costing significantly more 
than fly ash, and, therefore, the value derived from using cenospheres 
in concrete will primarily be due to special properties, such as 
lightness and strength, rather than any societal gains based on 
diverting waste material.
    Response: EPA agrees that cement and concrete containing 
cenospheres is a specialty item that may cost more than regular cement 
and concrete. An agency can choose whether cement and concrete with 
cenospheres suits its needs, application, and/or budget. If not, the 
agency can use cement and concrete containing one of the other 
recovered materials recommended in the RMAN. In EPA's view, the value 
and benefit of using cement and concrete with cenospheres (or silica 
fume) will be derived both from its special properties, as well as the 
diversion of these materials from disposal.
4. Nylon Carpet and Nylon Carpet Backing
    EPA received a number of comments on its proposed comprehensive 
procurement guideline for nylon carpet and its recovered materials 
content recommendations for nylon carpet face fiber and nylon carpet 
backing contained in the draft RMAN IV. Many of these comments provided 
additional information that was conflicting in nature. As a result of 
these comments, EPA decided not to finalize the designation of carpet 
made from nylon fiber facing and/or nylon carpet backing at this time. 
EPA instead issued a Notice of Data Availability (NODA) on July 16, 
2003 (68 FR 42040) announcing the availability of information on nylon 
carpet submitted both during and after the public comment period and 
provided a summary of the revisions EPA is considering making to the 
draft RMAN for nylon carpet as a result of this information. EPA will 
consider information and data submitted in response to this notice when 
issuing the final RMAN recommendations for nylon carpet in the future. 
The NODA can be accessed at http://www.epa.gov/cpg. Supporting 
materials and public comments submitted in response to the NODA are 
available through EPA's electronic public docket and comment system, 
EPA Dockets [EDOCKET]. The docket number is RCRA-2003-0013.
5. Bike Racks
    Comment: The White House Task Force on Recycling submitted a 
comment in which it questioned the rationale for designating bike 
racks. The Task Force claims it is not clear whether individual 
agencies purchase $10,000 worth of bike racks annually or if agencies 
create barriers to using bike racks containing recovered content.
    Response: As discussed in the proposed FR notice and background 
document, EPA has determined that bike racks meet all of the statutory 
criteria for designating items under the CPG. It is conceivable that 
agencies such as the Department of the Interior, state and local 
governments, and large school districts receiving federal funds could 
purchase $10,000 worth of bike racks annually. Moreover, the $10,000 
level is not a selection criterion for designation, but rather is just 
the threshold at which certain provisions of RCRA 6002 apply. EPA 
believes designating bike racks will encourage the use of alternative 
materials, such as plastic, in the manufacture of bike racks.
6. Polyester Carpet
    In the proposed CPG IV, EPA requested comments on its proposal to 
revise the polyester carpet designation based on new Carpet and Rug 
Institute (CRI) end-use classifications of moderate- and heavy-wear.
    Comment: Five organizations submitted comments on EPA's recommended 
use of polyester carpet in moderate and heavy use classifications. 
Comments submitted by CRI included a new carpet End-Use Applications 
Classification table which lists private offices as heavy and severe 
wear applications. In its comments, CRI urged

[[Page 24034]]

that EPA limit its recommendation for polyester carpets to polyester 
carpets used only in moderate end-use applications, as indicated in 
CRI's Carpet End-Use Applications Classification table.
    Response: EPA had proposed the use of polyester carpet for moderate 
end-use applications, which, at the time, included private offices. In 
the Background Document for Proposed CPG IV, EPA noted that, at the 
time the proposed CPG IV was issued, the CRI End-Use Classifications 
were under review and were expected to be revised. The revised CRI 
classification now classifies private offices as heavy- and severe-use 
applications. Based on the public comments received, as well as the 
fact that private offices have been re-classified as heavy- and/or 
severe-use applications and so are no longer classified as moderate-use 
applications, the final CPG designation for polyester carpet has been 
revised to remove references to heavy-wear applications and private 
offices.

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

    EPA has developed a searchable online Supplier Database containing 
names of manufacturers, suppliers, and distributors of CPG-designated 
items. (See section VIII 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 XV of the document, 
``Background Document for the Final CPG IV/RMAN IV'' 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. Information is also available from trade 
associations whose members manufacture or distribute products 
containing recovered materials.

VII. Statutory and Executive Order Reviews

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 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 IV.'' 
A copy of this document is in the public docket.
1. Summary of Costs
    As shown in Table 2 below, EPA estimates that the annualized costs 
of today's rule will range from $5.0 to $9.7 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 EIA for this rule.

    Table 2.--Summary of Annualized Costs of CPG IV Amendments to All
                           Procuring Agencies
------------------------------------------------------------------------
                                                                Best
                                                  Total       estimate
                                               annualized       total
              Procuring agency                    costs      annualized
                                                 ($1000)        costs
                                                               ($1000)
------------------------------------------------------------------------
Federal Agencies............................  2,853-5,707          5,707
States......................................  542-1,085            1,085
Local Governments...........................  1,556-2,762          2,159
Contractors.................................  34-101                  68
    Total...................................  4,985-9,655          9,019
------------------------------------------------------------------------

    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 EIA.
    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

[[Page 24035]]

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, 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. Paperwork Reduction Act

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

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (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.
    For purposes of assessing the impacts of today's final rule on 
small entities, a 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 today's rule 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 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 seven new items and the 
revised designations of three 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 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

[[Page 24036]]

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 final rule on 
small entities, EPA certifies that the rule will not have a significant 
economic impact on a substantial number of small entities.
    This final rule, therefore, does not require a regulatory 
flexibility analysis. The basis for EPA's conclusions is described in 
greater detail in the EIA for the final rule.
    While not a factor relevant to determining whether the final rule 
will have a significant impact for RFA purposes, EPA has concluded that 
the effect of today's final rule will 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), P.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 the 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 or tribal governments in the 
aggregate, or to the private sector. To the extent enforceable duties 
arise as a result of this final 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, $3.85 million annually. The 
cost of enforceable duties that may arise as a result of today's final 
rule on the private sector is estimated not to exceed $101,000 
annually. Thus, the final rule is not subject to the written statement 
requirement in sections 202 and 205 of the Act.
    The designated items included in the CPG IV final rule 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, $3.85 million annually. In compliance with 
Executive Order 12875 entitled Enhancing the Intergovernmental 
Partnership, 58 FR 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.
    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, $3.85 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 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, and for federal

[[Page 24037]]

agencies, reporting and record keeping. As noted above, EPA estimates 
that the total annualized costs of today's final rule will range from 
$5.0 to $9.7 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 final 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 13175 
do not apply to this final rule.

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 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 final rule is not subject to E.O. 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 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 final 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.

J. Congressional Review Act

    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 May 2, 2005.

VIII. Supporting Information and Accessing Internet

    The index of supporting materials for today's final CPG IV is 
available at the OSWER Docket in the EPA Docket Center and on the 
Internet. The address and telephone number of the EPA Docket Center are 
provided in the SUPPLEMENTARY INFORMATION Section above. The index and 
the following supporting materials are available at the EPA Docket 
Center and on the Internet:
    ``Background Document for the Final CPG IV/RMAN IV,'' U.S. EPA, 
Office of Solid Waste and Emergency Response, September 2003.
    Copies of the following supporting materials are available for 
viewing at the EPA Docket Center only:
    ``Economic Impact Analysis for the Final Comprehensive Procurement 
Guideline IV,'' U.S. Environmental Protection Agency, September 2003.
    ``Processing and characterization of a lightweight concrete using 
cenospheres,'' Journal of Materials Science, Vol. 37, 4217-4225, 
October 1, 2002.
    To access information on the Internet go to http://www.epa.gov/cpg.

List of Subjects in 40 CFR Part 247

    Environmental protection, Government procurement, Recycling.

    Dated: April 22, 2004.
Michael O. Leavitt,
Administrator.

0
For the reasons set out in the preamble, title 40 of the Code of 
Federal

[[Page 24038]]

Regulations, Part 247, is amended as set forth below.

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

0
1. 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.


0
2. In Sec.  247.3, the following definitions are added alphabetically:


Sec.  247.3  Definitions.

* * * * *
    Bike racks are free-standing or anchored units that provide a 
method for cyclists to secure their bicycles safely.
* * * * *
    Blasting grit is a type of industrial abrasive used to shape, cut, 
sharpen, polish, or finish surfaces and materials.
* * * * *
    Cenospheres, a naturally-occurring waste component of coal fly ash, 
are very small, inert, lightweight, hollow, ``glass'' spheres composed 
of silica and alumina and filled with air or other gases.
* * * * *
    Modular threshold ramps are ramps used to modify existing door 
thresholds and other small rises to remove access barriers created by 
differentials in landing levels.
* * * * *
    Nonpressure pipe is pipe used to drain waste and wastewater, to 
vent gases, and to channel cable and conduit in various applications.
* * * * *
    Office furniture is furniture typically used in offices, including 
seating, desks, storage units, file cabinets, tables, and systems 
furniture (or ``cubicles'').
* * * * *
    Rebuilt vehicular parts are vehicular parts that have been 
remanufactured, reusing parts in their original form.
* * * * *
    Roofing materials are materials used to construct a protective 
cover over a structure to shield its interior from the natural 
elements.
* * * * *
    Silica fume is a waste byproduct of alloyed metal production.

0
3. In Sec.  247.11, add paragraph (d) to read as follows:


Sec.  247.11  Vehicular products.

* * * * *
    (d) Rebuilt vehicular parts.

0
4. In Sec.  247.12, revise paragraphs (c), (d), and (j) and add 
paragraphs (k), (l), and (m), to read as follows:


Sec.  247.12  Construction products.

* * * * *
    (c) Cement and concrete, including concrete products such as pipe 
and block containing:
    (1) Coal fly ash;
    (2) Ground granulated blast furnace slag (GGBF);
    (3) Cenospheres; or
    (4) Silica fume from silicon and ferrosilicon metal production.
    (d) Carpet made from polyester fiber made from recovered materials 
for use in moderate-wear applications such as single-family housing and 
similar wear applications.
* * * * *
    (j) Railroad grade crossing surfaces made from cement and concrete 
containing fly ash, recovered rubber, recovered steel, recovered wood, 
or recovered plastic.
    (k) Modular threshold ramps containing recovered steel, rubber, or 
aluminum.
    (l) Nonpressure pipe containing recovered steel, plastic, or 
cement.
    (m) Roofing materials containing recovered steel, aluminum, fiber, 
rubber, plastic or plastic composites, or cement.

0
5. In Sec.  247.16, add paragraph (l) to read as follows:


Sec.  247.16  Nonpaper office products.

* * * * *
    (1) Office furniture containing recovered steel, aluminum, wood, 
agricultural fiber, or plastic.

0
6. In Sec.  247.17, add paragraphs (h) and (i) to read as follows:


Sec.  247.17  Miscellaneous products.

* * * * *
    (h) Bike racks containing recovered steel or plastic.
    (i) Blasting grit containing recovered steel, coal and metal slag, 
bottom ash, glass, plastic, fused alumina oxide, or walnut shells.

[FR Doc. 04-9864 Filed 4-29-04; 8:45 am]
BILLING CODE 6560-50-P