[Federal Register Volume 62, Number 219 (Thursday, November 13, 1997)]
[Rules and Regulations]
[Pages 60962-60974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29734]
[[Page 60961]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 247
Comprehensive Guideline for Procurement of Products Containing
Recovered Materials; Final Rule
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 /
Rules and Regulations
[[Page 60962]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 247
[SWH-FRL-5909-6]
RIN 2050-AE23
Comprehensive Guideline for Procurement of Products Containing
Recovered Materials
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency today is issuing an
amendment to the May 1, 1995 Comprehensive Procurement Guideline (CPG).
EPA is designating 12 new items that are or can be made with recovered
materials. These items are shower and restroom dividers/partitions;
consolidated and reprocessed latex paint for specified uses; parking
stops; channelizers; delineators; flexible delineators; plastic fencing
for specified uses; garden and soaker hoses; lawn and garden edging;
printer ribbons; plastic envelopes; and pallets. In addition, this
action clarifies EPA's previous designation of floor tiles, structural
fiberboard, and laminated paperboard as items that can be made with
recovered materials.
The CPG implements section 6002 of the Resource Conservation and
Recovery Act (RCRA), which requires EPA to designate items that are or
can be produced with recovered materials and to recommend practices for
the procurement of designated items by procuring agencies. Once EPA
designates an item, RCRA requires any procuring agency using
appropriated Federal funds to procure that item to purchase it with the
highest percentage of recovered materials practicable. Today's action
will foster markets for materials recovered from solid waste by using
government purchasing power to stimulate the use of these materials in
the manufacture of new products.
RCRA section 6002 provides certain limited exceptions to the
general requirement to buy EPA-designated items. Under certain
circumstances based on competition, price, availability, and
performance, procuring agencies are not required to purchase an item
designated by EPA. In the May 1, 1995 CPG, EPA codified the RCRA
section 6002 procurement requirements for the convenience of procuring
agencies so they can find all of the RCRA section 6002 procurement
provisions, as well as EPA's item designations, in one location. EPA
inadvertently omitted the limitations from the codification of agency
requirements, however. Today, EPA is codifying these procurement
limitations with the affirmative procurement program portion of the CPG
for the convenience of procuring agencies.
EFFECTIVE DATES: The amendments to the Comprehensive Procurement
Guideline designating additional procurement items (Secs. 247.3; 247.12
through 247.17) are effective on November 13, 1998. The amendment
adding the procurement limitations (Sec. 247.2(d)) is effective
November 13, 1997.
ADDRESSES: The public docket for this notice is Docket F-97-CP2F-FFFFF.
Documents related to today's notice are available for viewing in the
RCRA Information Center (RIC), which is located at U.S. Environmental
Protection Agency, Crystal Gateway One, 1235 Jefferson Davis Highway,
Ground Floor, Arlington, VA 22202. The RIC is open from 9 a.m. to 4
p.m., Monday through Friday, except for Federal holidays. To review
docket materials, it is recommended that the public make an appointment
by calling (703) 603-9230. The public may copy a maximum of 100 pages
from any regulatory docket at no charge. Additional copies cost $0.15/
page. The index and some supporting materials are available
electronically. See Section VIII of the ``Supplementary Information''
section below for information on accessing the documents
electronically.
FOR FURTHER INFORMATION CONTACT:
General procurement guidelines information: RCRA Hotline at (800)
424-9346, TDD (800) 553-7672 (hearing impaired) or, in the Washington,
DC area at (703) 412-9810 or TDD (703) 412-3323.
Technical information on individual item recommendations: For paper
and paper products, vehicular products, construction products, non-
paper office products, and pallets: Dana Arnold, (703) 308-7279; for
landscaping products, transportation products, and park and recreation
products: Terry Grist, (703) 308-7257.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Regulated Entities
III. Background
A. Criteria for Selecting Items for Designation
B. Procurement Limitations of RCRA Section 6002
C. Clarification of Floor Tiles, Structural Fiberboard and
Laminated Paperboard Designations
1. Floor Tiles
2. Structural Fiberboard and Laminated Paperboard
IV. Definitions
V. Comment Summary and Agency's Response
A. General Comments
1. Recordkeeping and Reporting
2. Interaction Between RCRA Section 6002 and the Federal
Acquisition Regulation
3. Designation of Materials
B. Comments on Proposed Item Designations
1. Shower and Restroom Dividers
2. Latex Paint
3. Snow Fencing
4. Ink Jet Cartridges
C. Comments on Other Items Considered for Designation
D. Comments on Public Participation Process
VI. Availability of Designated Items
VII. Economic Impact Analysis
A. Requirements of Executive Order 12866
1. Summary of Costs
2. Product Cost
3. Summary of Benefits
B. Unfunded Mandates Reform Act of 1995 and Consultation with
State, Local, and Tribal Governments
C. Impacted Entities
D. Regulatory Flexibility Act and Small Business Regulatory
Enforcement Fairness Act
VIII. Supporting Information and Accessing Internet
IX. Submission to Congress and the General Accounting Office
I. Authority
This amendment to the Comprehensive Procurement Guideline is
promulgated under the authority of sections 2002(a) and 6002 of the
Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6912(a) and 6962,
and section 502 of Executive Order 12873, ``Federal Acquisition,
Recycling, and Waste Prevention'' (58 FR 54911, October 22, 1993).
II. Regulated Entities
This action may potentially affect those procuring agencies that
purchase the following: shower and restroom dividers/partitions,
consolidated and reprocessed latex paint for specified uses, floor
tiles, structural fiberboard, laminated paperboard, parking stops,
temporary traffic control devices, plastic fencing for specified uses,
garden and soaker hose, lawn and garden edging, printer ribbons,
plastic envelopes, or pallets. For purposes of RCRA section 6002,
procuring agencies include the following: (1) any Federal agency; (2)
any State or local agencies using appropriated Federal funds for a
procurement; or (3) any contractors with these agencies (with respect
to work performed under the contract). See
[[Page 60963]]
RCRA section 1004(17). The requirements of section 6002 apply to such
procuring agencies only when procuring designated items where the price
of the item exceeds $10,000 or the quantity of the item purchased in
the previous year exceeded $10,000. Potential regulated entities for
this rule are shown in Table 1.
Table 1.--Entities Potentially Subject to Section 6002 Requirements
Triggered by CPG Amendments
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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 worth of a
designated item in a given year.
State Government.................. A State agency that uses
appropriated Federal funds to
procure $10,000 or more worth of a
designated item in a given year.
Local Government.................. A local agency that uses
appropriated Federal funds to
procure $10,000 or more worth of a
designated item in a given year.
Contractor........................ A contractor working on a project
funded by appropriated Federal
funds that purchases $10,000 or
more worth of a designated item in
a given year.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities that could potentially be subject
to regulatory requirements triggered by this action. To determine
whether your procurement practices are affected by this action, you
should carefully examine the applicability criteria in 40 CFR 247.2. If
you have questions regarding the applicability of this action to a
particular entity, consult the persons listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
III. Background
Section 6002(e) of RCRA requires EPA to designate items that are or
can be made with recovered materials and to recommend practices to
assist procuring agencies in meeting their obligations with respect to
procurement of designated items under RCRA section 6002. RCRA requires
that each procuring agency, when purchasing an EPA-designated item,
must purchase that item composed of the highest percentage of recovered
materials practicable.
Executive Order 12873 (Executive Order) establishes the procedure
for EPA to follow in implementing RCRA section 6002(e). Section 502 of
the Executive Order directs EPA to issue a Comprehensive Procurement
Guideline (CPG) that designates items that are or can be made with
recovered materials. Concurrent with the CPG, EPA must publish its
recommended procurement practices for purchasing designated items,
including recovered materials content levels, in a related Recovered
Materials Advisory Notice (RMAN). The Executive Order also directs EPA
to update the CPG annually and to issue RMANs periodically to reflect
changing market conditions. The original CPG (CPG I) was published on
May 1, 1995 (60 FR 21370). It established eight product categories,
designated 19 new items, and consolidated five earlier item
designations. Concurrently, EPA published the first RMAN (RMAN I) (60
FR 21386).
On November 7, 1996, EPA proposed to designate 13 additional items
(CPG II) and published draft recommendations for purchasing those items
containing recovered materials (RMAN II). See 61 FR 57748-57759 and 61
FR 57760-57766, respectively. EPA also proposed clarifications of the
previous designations of floor tiles, structural fiberboard, and
laminated paperboard. In addition, EPA proposed to codify the RCRA
section 6002 limitations on the affirmative procurement requirements,
which had inadvertently been omitted from CPG I. Today, EPA is (1)
designating 12 of the items, (2) clarifying the previous designations
of floor tiles, structural, fiberboard, and laminated paperboard, and
(3) codifying the procurement limitations. As explained in section
V.B.3 below, EPA has decided not to designate ink jet cartridges. The
12 newly-designated items are listed below under their associated
product category.
Construction Products
Shower and restroom dividers/partitions
Consolidated and reprocessed latex paint for specified uses
Transportation Products
Parking stops
Channelizers
Delineators
Flexible delineators
Park and Recreation Products
Plastic fencing for specified uses
Landscaping Products
Garden and soaker hoses
Lawn and garden edging
Non-Paper Office Products
Printer ribbons
Plastic envelopes
Miscellaneous
Pallets
A. Criteria for Selecting Items for Designation
While not limiting consideration to these criteria, RCRA section
6002(e) requires EPA to consider the following when determining which
items it will designate:
(1) Availability of the item;
(2) Potential impact of the procurement of the item by procuring
agencies on the solid waste stream;
(3) Economic and technological feasibility of producing the item;
and
(4) Other uses for the recovered materials used to produce the
item.
EPA consulted with Federal procurement and requirements officials
to identify other criteria to consider when selecting items for
designation. Based on these discussions, the Agency concluded that the
limitations set forth in RCRA section 6002(c) should also be factored
into its selection decisions. This provision requires each procuring
agency that procures an item designated by EPA to procure the item
composed of the highest percentage of recovered materials practicable,
while maintaining a satisfactory level of competition. A procuring
agency, however, may decide not to procure an EPA-designated item
containing recovered materials if it determines: (1) the item is not
reasonably available within a reasonable period of time; (2) the item
fails to meet the performance standards set forth in the agency's
specification; or (3) the item is available only at an unreasonable
price.
EPA recognized that these limitations could limit the potential
impact of an individual item designation to the extent they provide
procuring agencies with a rationale for not purchasing EPA-designated
items with recovered materials content. (The limitations of section
6002(c) also effectively describe the circumstances in which a
designated
[[Page 60964]]
item is ``available'' for purposes of the statute.) For this reason,
EPA takes into account the limitations cited in RCRA section 6002(c) in
its selection of items for designation in the CPG. Thus, in the May 1,
1995 CPG I, the Agency stated that it had developed the following
criteria for use in selecting items for designation: use of materials
found in solid waste, economic and technological feasibility and
performance, impact of government procurement, availability and
competition, and other uses for recovered materials. EPA provided a
detailed discussion of these criteria in the CPG I background documents
and repeated that discussion, for the convenience of the reader, in
Section II of the document entitled, ``Comprehensive Procurement
Guideline (CPG) II--Supporting Analyses.'' A copy of this document is
included in the RCRA public docket for the proposed CPG II rule, docket
F-96-CP2P-FFFFF.
In CPG I, EPA stated that it had adopted two approaches in its
designation of items that are made with recovered materials. For some
items, such as floor tiles, the Agency designated broad categories of
items and provided information in the RMAN as to their appropriate
applications or uses. For other items, such as plastic trash bags, EPA
designated specific items, and, in some instances, included in the
designation the specific types of recovered materials or applications
to which the designation applies. The Agency explained these approaches
to designating items in the preamble to CPG I (60 FR 21373, May 1,
1995).
EPA sometimes had information on the availability of a
particular item made with a specific recovered material (e.g.,
plastic), but no information on the availability of the item made
from a different recovered material or any indication that it is
possible to make the item with a different recovered material. In
these instances, EPA concluded that it was appropriate to include
the specific material in the item designation in order to provide
vital information to procuring agencies as they seek to fulfill
their obligations to purchase designated items composed of the
highest percentage of recovered materials practicable. This
information enables the agencies to focus their efforts on products
that are currently available for purchase, reducing their
administrative burden. EPA also included information in the proposed
CPG, as well as in the draft RMAN that accompanied the proposed CPG,
that advised procuring agencies that EPA is not recommending the
purchase of an item made from one particular material over a similar
item made from another material. For example, EPA included the
following statement in the preamble discussion for plastic desktop
accessories (59 FR 18879, April 20, 1994): This designation does not
preclude a procuring agency from purchasing desktop accessories
manufactured from another material, such as wood. It simply requires
that a procuring agency, when purchasing plastic desktop
accessories, purchase these accessories made with recovered
materials.''
The Agency understands that some procuring agencies may believe
that the designation of a broad category of items in the CPG requires
them (1) to procure all items included in such category with recovered
materials content and (2) to establish an affirmative procurement
program for the entire category of items, even where specific items
within the category may not meet current performance standards. This is
clearly not required under RCRA as implemented through the CPG and the
RMAN. RCRA section 6002 does not require a procuring agency to purchase
items with recovered materials content that are not available or that
do not meet a procuring agency's specifications or reasonable
performance standards for the contemplated use. Further, section 6002
does not require a procuring agency to purchase such items if the item
with recovered materials content is only available at an unreasonable
price or the purchase of such item is inconsistent with maintaining a
reasonable level of competition. However, EPA stresses that, when
procuring any product for which a recovered materials alternative is
available that meets the procuring agency's performance needs, if all
other factors are equal, the procuring agency should seek to purchase
the product made with highest percentage of recovered materials
practicable.
The items designated today have all been evaluated with respect to
the EPA's criteria. Details of these evaluations are discussed in
``Final CPG II/RMAN II Background Document,'' which has been placed in
the docket for the final CPG II and RMAN II and is available
electronically. (See Section VIII below for Internet access
directions.)
B. Procurement Limitations of RCRA Section 6002
In the May 1, 1995 CPG, the Agency amended 40 CFR 247.2 to include
the RCRA provisions on the applicability of the guidelines to procuring
agencies. (See 60 FR 21381.) In that amendment, EPA inadvertently
failed to include the statutory exceptions to the general requirement
to purchase designated items set forth in section 6002(c)(1) (A)
through (C). Today, in Sec. 247.2(d), EPA is adding these procurement
limitations. As discussed in the previous section, these provisions
authorize a procuring agency to decide not to purchase EPA designated
items with recovered materials based on the following determinations:
1. The agency is unable to secure a satisfactory level of
competition;
2. The item is not reasonably available within a reasonable period
of time;
3. The item fails to meet the reasonable performance standards set
forth in the agency's specification; and
4. The item is available only at an unreasonable price.
EPA received no comments on the proposed language and, as noted
above, is today amending Sec. 247.2 to add these provisions. EPA is
making this amendment effective immediately. Section 553(d) of the
Administrative Procedure Act authorizes an exception to the general
requirement that a substantive rule must be published 30 days before
its effective date where an agency determines there is good cause for
doing so. As explained above, these amendments merely codify the
statutory conditions spelled out in section 6002(c) under which a
procuring agency may determine not to procure items designated in the
guidelines. Today's amendments do not change a procuring agency's
current obligations under section 6002 of RCRA to procure designated
items to the maximum extent practicable but merely restate in the
regulations the exceptions to the general requirement provided in the
statute. Under the circumstances, there is good cause for making these
amendments effective immediately.
C. Clarification of Floor Tiles, Structural Fiberboard and Laminated
Paperboard Designations
In the May 1, 1995 CPG, EPA designated floor tiles, structural
fiberboard, and laminated paperboard and, in the RMAN, provided
recommendations for purchasing these items containing recovered
materials. EPA has since learned that there may be some confusion on
the part of procuring agencies as to their obligation to purchase these
items for specific applications. In fact, the Agency received inquiries
regarding the requirements to purchase floor tile and structural
fiberboard for use as acoustical ceiling tile. Based on these
inquiries, the Agency concluded that it should clarify the obligations
of procuring agencies with respect to these items. Additionally, the
Agency published a separate notice in the Federal Register providing
additional information to assist procuring agencies in determining
their obligation to purchase designated items for specific
[[Page 60965]]
applications and to clarify these issues. See 61 FR 58067, November 12,
1996.
1. Floor Tiles
In the original CPG, EPA designated 19 items that are, or can be,
produced with recovered materials content, including floor tiles and
patio blocks containing recovered rubber or plastic [40 CFR 247.12(e)].
The Agency designated these items as broad categories of items,
encompassing many different applications. In the companion RMAN,
however, the Agency recommended that procuring agencies purchase floor
tiles with specified minimum recovered rubber or plastic content for
``heavy duty/commercial type'' applications only. EPA limited the
recommended applications to heavy-duty/commercial-type uses because, at
the time CPG I was issued, the Agency was not aware of any
manufacturers that made floor tile with recovered materials for
standard office flooring. However, at least two manufacturers were
reportedly considering using recovered materials in standard office
flooring and one manufacturer indicated that these products would be
available in 1995, the year CPG I was issued. This information
suggested to the Agency that floor tiles could be made with recovered
materials for standard office flooring. Therefore, the Agency elected
to broadly designate floor tiles and limit its initial recommendations
to heavy-duty/commercial type uses. The Agency has no information that
standard office floor tiles are currently commercially available
containing recovered materials.
In CPG I and RMAN I, EPA used the term ``heavy-duty, commercial-
type uses'' because there were no published industry-wide definitions
to describe the applications to which the recovered materials
requirements of the CPG should be applied. In the supporting analysis
for RMAN I, EPA explained what it meant by ``heavy-duty, commercial-
type applications.'' There, the Agency described, in general terms, a
number of commercial and industrial settings where the use of such
tiles with recovered materials content would be appropriate. These
would include entranceways in airports and stores, furniture showrooms,
skating rinks and fitness centers. EPA has learned that this discussion
may have caused some confusion. Some procuring agencies may have
confused EPA's description of the areas where, given special
circumstances, such tiles might be appropriate, with an EPA
recommendation that such tile should always be used in such settings.
This was not the Agency's intention. Therefore, the Agency is today
clarifying its recommendation that the use of these tiles would be
appropriate for specialty purpose uses at such locations (e.g., raised,
open-web tiles for drainage on school kitchen flooring). Such specialty
purpose uses involve limited flooring areas where grease, tar, snow,
ice, wetness or similar substances or conditions are likely to be
present. Commenters also supported the Agency in its views about the
limitations on uses for floor tiles containing recovered materials.
Thus, EPA is not, at this time, recommending floor tile made with
recovered materials for standard office or more general purpose uses.
2. Structural Fiberboard and Laminated Paperboard
In CPG I, EPA designated structural fiberboard and laminated
paperboard products for applications other than building insulation [40
CFR 247.12(b)]. EPA included acoustical and non-acoustical ceiling
tiles and lay-in panels in its list of applications to which the
designation applies. Since CPG I was issued, one manufacturer of
mineral fiber ceiling products has expressed concern over the scope of
the structural fiberboard and laminated paperboard designations,
particularly as they apply to acoustical and non-acoustical ceiling
tiles and lay-in panels.
EPA is clarifying that the specific applications included in the
structural fiberboard and laminated paperboard designation, i.e.,
building board, sheathing, shingle backer, sound deadening board, roof
insulating board, insulating wallboard, acoustical and non-acoustical
ceiling tile, acoustical and non-acoustical lay-in panels, floor
underlayments, and roof overlay (coverboard), apply to the purchase of
cellulosic fiber structural fiberboard and laminated paperboard
products only. The listed applications, and therefore the designation,
do not apply to products made from other similar or competing
materials. In other words, if a procuring agency is purchasing a
cellulosic fiberboard acoustical ceiling tile, then the agency should
purchase the ceiling tile made with recovered materials. However, if
the agency prefers to purchase a ceiling tile made with mineral fiber
rather than fiberboard, it is free to do so. In the latter instance,
there is no requirement to purchase a cellulosic fiberboard ceiling
tile.
IV. Definitions
Today, in Sec. 247.3, EPA is adding definitions for the following
new item-specific terms: channelizers, delineators, flexible
delineators, garden hoses, latex paint, lawn edging, pallets, parking
stops, plastic fencing, printer ribbons, restroom dividers/partitions,
shower dividers/partitions, and soaker hoses. These definitions are
based on industry definitions, including ASTM or other standard
specifications, or represent descriptions of the scope of items being
designated.
For several items being designated today, EPA recommends in the
final RMAN II that procuring agencies use two-part content levels--a
postconsumer recovered materials component and a total recovered
materials component. In these instances, EPA found that both types of
materials were being used to manufacture the products. Recommending
only postconsumer content levels would be contrary to the RCRA mandate
to maximize the use of recovered materials because it would fail to
acknowledge the contribution to solid waste management made by
manufacturers using other manufacturers' byproducts as feedstock.
Because the recommendations for the items being designated today
use the terms ``postconsumer materials'' and ``recovered materials,''
the definitions for these terms are repeated in this action as a
reference for the convenience of the reader. These definitions were
part of CPG I and can be found at 40 CFR Sec. 247.3.
Postconsumer materials means a material or finished product that
has served its intended end use and has been diverted or recovered
from waste destined for disposal, having completed its life as a
consumer item. Postconsumer material is part of the broader category
of recovered materials.
Recovered materials means waste materials and byproducts which
have been recovered or diverted from solid waste, but such term does
not include those materials and byproducts generated from, and
commonly reused within an original manufacturing process.
V. Comment Summary and Agency's Response
EPA received submittals from 20 commenters in response to the
proposed CPG II and the draft RMAN II. These commenters represented
various interests, including Federal agencies, State agencies, local
governments, product manufacturers, and product users. A summary of the
comments and EPA's response can be found in ``Final CPG II/RMAN II
Background Document.''
In this section, EPA discusses the major comments regarding the
proposed CPG II. For a discussion of the major comments pertaining to
the draft RMAN II, see the preamble to the notice of
[[Page 60966]]
availability of the final RMAN II, which is found in the notices
section of today's Federal Register.
A. General Comments
1. Recordkeeping and Reporting
Comment: A Federal agency expressed concern about the burden of
tracking purchases of each procurement item designated by EPA and the
potential difficulty in establishing the infrastructure to institute
policies and procedures at a time when administrative staff is being
reduced. The commenter further noted that the use of government credit
cards increases the difficulty of tracking purchases. In addition, the
commenter suggested that an interagency reporting task force convened
by the Office of Federal Procurement Policy (OFPP) and the Office of
the Federal Environmental Executive (OFEE) should address streamlining
reporting requirements.
Response: Because EPA addressed the RCRA reporting requirements in
the CPG I rulemaking, reporting issues were not addressed as part of
the CPG II proposal. See, for example, the background documents for the
final CPG I and RMAN I for EPA's previous discussions of the RCRA
annual review and reporting requirements: ``Items Designated in the
Comprehensive Procurement Guideline--Supporting Analyses,'' pages 40-
41, and ``RMAN for Items Designated in the Comprehensive Procurement
Guideline--Supporting Analyses,'' pages 8-9.
The requirement that Federal procuring agencies report on their
procurement of EPA-designated items is mandated by RCRA section 6002(g)
and Section 301 of Executive Order 12873. Therefore, reporting is not
at the discretion of OFEE or EPA. While EPA and OFEE are cognizant of
the labor necessary to collect and report annual procurement data,
neither office is authorized to significantly change the data contained
in the final report.
As noted by the commenter, OFEE and OFPP chartered an interagency
steering committee to identify streamlining initiatives for the data
collection requirements. As a result of the committee's
recommendations, the agency data collection requirements for FY96 were
reduced by \1/3\ by capturing data in a more efficient manner. For
agencies that requisition CPG items from the U.S. General Services
Administration's (GSA) Federal Supply System, the supply center tracks
and reports on the agencies purchases. While this significantly reduces
an agency's data collection and reporting burden, the final report
contains the same itemized information.
2. Interaction Between RCRA Section 6002 and the Federal Acquisition
Regulation
Comment: A Federal agency raised issues specific to the Federal
Acquisition Regulation (FAR), which governs Federal acquisition
activities. The agency stated that the proposed CPG II and draft RMAN
II did not adequately address the importance of and the responsibility
of key non-procurement personnel, who generally develop and define a
procuring agency's environmental needs. The agency referenced
provisions of the FAR. Additionally, the agency stated that the draft
RMAN II provides no specific guidance on the use of required sources,
such as Federal Prison Industries (UNICOR) and Javits-Wagner-O'Day
(JWOD) participating non-profit agencies.
Response: EPA has stated on many occasions that implementation of
RCRA section 6002 must be consistent with other Federal procurement
law. For example, in Appendix I to ``Final CPG II/RMAN II Background
Document,'' EPA states the following:
The purchase of recycled products under RCRA section 6002 must
be consistent with other Federal procurement law, which requires
that contracts be awarded to the lowest priced, responsive,
responsible bidder * * *
On August 27, 1997, the Civilian Agency Acquisition Council and
the Defense Acquisition Regulations Council issued an interim rule
amending the Federal Acquisition Regulation (FAR) parts 1, 10, 11,
13, 15, 23, 36, 42, and 52 to reflect the government's preference
for the acquisition of environmentally-sound and energy-efficient
products and services and to establish an affirmative procurement
program favoring items containing the maximum practicable content of
recovered materials. See 62 FR 44809, August 22, 1997.
As the commenter indicated, the FAR specifies the role of
contracting officers and other agency personnel in acquisitions, as
well as providing for implementation of the required sources
requirements and the RCRA section 6002 affirmative procurement
requirements. To the extent that the FAR generally dictates use of
certain required sources like UNICOR, EPA believes that it is
reasonable to assume that federal procuring agencies will look to such
sources for procurement of designated items. In fact, required sources
such as UNICOR and the National Industries for the Blind offer several
of the items previously designated by EPA (e.g., toner cartridges,
recycled paper products). Therefore, EPA refers procuring agencies to
the FAR for guidance regarding these acquisitions issues.
3. Designation of Materials
Comment: A commenter requested that EPA designate steel in order to
recognize that this material is recyclable, has a high recycling rate,
and contains recovered materials.
Response: EPA agrees that steel, like many metals, is both
recyclable and can contain recovered materials. EPA also agrees that
steel, like many metals, is a waste management success story in terms
of its recyclability, high recycling rate, and recovered materials
content. EPA also applauds the steel industry's source reduction
efforts to produce stronger, lighter weight steel products, in response
to customer demand.
However, RCRA specifically requires EPA to designate products that
are or can be made with recovered materials, not the component
materials used in those products. Accordingly, EPA designates products
that are manufactured with steel, but not materials, such as steel,
that can contain recovered materials.
B. Comments on Proposed Item Designations
No commenters opposed the designations of the following items:
parking stops, channelizers, delineators, flexible delineators, garden
and soaker hoses, lawn and garden edging, printer ribbons, plastic
envelopes, and pallets. EPA is promulgating these items as proposed.
Commenters suggested revisions to the designations of shower and
restroom dividers, latex paint, and snow fencing, and opposed the
proposed designation of ink jet cartridges. In response, EPA is
designating shower and restroom dividers and latex paint, with
modifications, and revising the designation of snow fencing to plastic
fencing for specific uses. EPA is not designating ink jet cartridges at
this time. The comments on shower and restroom dividers and snow
fencing, and the significant comments pertaining to the proposed
designations of latex paint and ink jet cartridges, as well as EPA's
response, are discussed in the following subsections. For a full
discussion of the comments and EPA's response, including additional
research conducted by EPA, see ``Final CPG II/RMAN II Background
Document.''
1. Shower and Restroom Dividers
Comment: EPA received one comment suggesting that shower and
restroom dividers be referred to as dividers/partitions.
[[Page 60967]]
Response: After additional research into industry practices, EPA
found that both of the terms--``partitions'' and ``dividers''--are
commonly used. Generally speaking, ``partition'' implies that a door is
used, and ``divider'' implies a dividing wall. Based on the comment and
the additional research, EPA is revising the term for this item in the
final CPG II and companion RMAN II to ``shower and restroom dividers/
partitions.''
2. Latex Paint
Comment: A commenter opposed the proposed designation of latex
paint based on concerns about performance and availability. The
commenter further noted that the proposed designation was overly broad
and did not reflect the variety of different latex paint applications
in government buildings and their performance requirements. The
commenter suggested that EPA could limit the designation and
recommendations to interior and exterior architectural applications
where color, consistency of performance, and durability are not primary
concerns and a spray-gun application is not used.
EPA met with the commenter on June 17, 1997 to discuss this and
other comments. A copy of the meeting notes has been placed in the RCRA
docket for the final CPG II.
In supplemental comments, the commenter suggested that EPA
distinguish between consolidated and reprocessed latex paints. The
commenter suggested that EPA revise the designation so as to designate
only:
Consolidated latex paint used for covering graffiti, where
consistent color and consistency of performance are not primary
concerns.
Reprocessed latex paint used for interior and exterior
architectural applications where the reprocessed latex paint meets all
end use specifications (e.g., color, weathering, durability, hiding
power, and applicability) for a particular application.
These suggestions are similar to the applications for reprocessed
and consolidated latex paints that EPA had recommended in the draft
RMAN II.
The commenter stated that adding the language about end use
specifications in the suggested designation would alleviate paint
industry concerns that the listing of latex paints will require the use
of reprocessed latex paints for all interior and exterior uses without
regard to any performance criteria. The commenter further stated that
the selection of latex paint for a particular application is a complex
process and that, while the GSA specification for ``recycled'' latex
paint covers certain performance attributes, it may not include all of
the attributes necessary for a particular application. The commenter
referenced three ASTM latex paint specifications that the commenter
believes procuring agencies should consider in evaluating whether
reprocessed latex paint has the appropriate performance attributes for
a particular application. A copy of the supplemental comments is
included in the docket for the final CPG II.
Response: EPA agrees that reprocessed and consolidated latex paints
are not suitable for all applications. In the proposed CPG II, EPA
noted, for example, that there is little available information on the
performance of reprocessed or consolidated paints for non-architectural
applications. See 61 FR 57752. In the draft RMAN II, EPA recommended
the use of consolidated paint in limited applications, such as covering
graffiti, where color and consistency of performance are not primary
concerns. EPA recommended the use of reprocessed paint for interior and
exterior architectural applications. See Section C-7 of the draft RMAN
II at 61 FR 57763.
In researching latex paint for the proposed CPG II, EPA identified
a latex paint study by the California Polytechnic University (CalPoly).
The CalPoly study included testing of reprocessed and consolidated
latex paints for various key parameters that measure the performance
and durability of paint for a number of different applications. The
CalPoly study concluded that reprocessed paints are suitable for these
applications reviewed in the study. A copy of this study was included
in the docket for the proposed CPG II and draft RMAN II, docket F-96-
CP2P-FFFFF. Both the GSA's Engineering and Commodity Management
Division and CalPoly found that latex paints containing postconsumer
materials can be manufactured to provide consistent performance, normal
coverage and hiding of the underlying surface, and durability. In
addition, the GSA specification provides for testing of color and
application properties, among other requirements.
Latex paints containing postconsumer materials also can be
formulated to be used in spray-guns. According to paint manufacturers
and municipalities contacted by EPA, spray applications of reprocessed
latex paint pose few, if any, problems as long as the paint is clean
and has been filtered properly. EPA notes, however, that some users
have encountered problems with clogged spray nozzles, and one
manufacturer recommends using a larger diameter spray tip to ensure
that the nozzle will not become clogged. GSA specification TT-P-2846
requires that the reprocessed and consolidated latex paint meet
specified brushing, roller coating, and spraying properties, which
should ensure that manufacturers properly filter their products.
EPA also conducted additional research into the applications for
which agencies currently are using reprocessed latex paints. EPA found
that agencies currently are using reprocessed paints for the same uses
for which they would normally use latex paint--e.g., interior and
exterior wallboard, ceilings, and trim; exterior gutter boards; and
concrete, stucco, masonry, and wood, as well as metal surfaces.
After considering the comments and conducting further research on
reprocessed latex applications, EPA has concluded that the proposed
designation of ``latex paint'' is too broad given the uses for which
consolidated and reprocessed latex paints currently are available. As
discussed above in Section III.A, EPA sometimes designates broad
category items and provides information in the RMAN as to their
appropriate applications or uses. In other instances, EPA designates
specific items and might include in the designation the specific types
of applications to which the designation applies. The approach that EPA
uses depends on the whether items manufactured from other types of
materials or for other applications are made with or could contain
recovered materials. In the past, if EPA was not aware that items used
for other applications were available, EPA limited its designations so
as not to create an unnecessary burden on agencies to try to purchase
an item that is not available. (See the preamble to CPG I, 60 FR 21373,
May 1, 1995, for a more detailed discussion of EPA's approach.)
Based on the available information, EPA has concluded that
consolidated latex paints are currently used for graffiti abatement.
EPA further has determined that reprocessed latex paints are available
for architectural applications, but not for non-architectural
applications, such as marking pavements or athletic fields. EPA also
agrees with the commenter that reprocessed latex paints may not be
available for all architectural performance needs.
Therefore, to avoid confusion by procuring agencies about the scope
of the latex paint designation, EPA has
[[Page 60968]]
concluded that it is preferable to limit the scope of the latex paint
designation, rather than designating the broad category ``latex
paint,'' and recommending specific applications for using consolidated
and reprocessed latex paints in RMAN II. A narrower designation will
enable procuring agencies to focus their procurement efforts on the
types of latex paint currently available either through GSA or directly
from paint manufacturers.
Therefore, in today's final CPG II, EPA is revising the broad
``latex paint'' designation to provide the following specific
designations:
Consolidated latex paint used for covering graffiti.
Reprocessed latex paint used for interior and exterior
architectural applications such as wallboard, ceilings, and trim;
gutter boards; and concrete, stucco, masonry, wood, and metal surfaces.
Under this revised designation, procuring agencies must purchase
reprocessed latex paint for the interior and exterior architectural
applications for which they would ordinarily use latex paint, such as
wallboard, concrete, stucco, masonry, wood, and metal. Procuring
agencies requiring a latex paint not meeting GSA's general ``recycled''
latex paint specification should determine whether a latex paint
containing recovered materials is available and if not, may use a latex
paint not containing recovered materials for that particular
application.
As discussed in section III.B above, RCRA section 6002 provides
that a procuring agency is not required to purchase an EPA-designated
item containing recovered materials if that item is not reasonably
available or fails to meet the reasonable performance standards set
forth in the agency's specifications. Thus, if an agency has a
particular need (e.g., color, weathering, durability, hiding power) for
a particular application, and consolidated or reprocessed latex paint
is not available (or does not meet that specification), the agency may
purchase a latex paint not containing recovered materials. Given the
obligation of procuring agencies to procure designated items with the
highest percentage of recovered materials practicable, an agency should
thoroughly research the availability of consolidated or reprocessed
latex paint meeting its specifications.
However, because RCRA provides for performance exceptions to the
requirement to purchase EPA-designated items containing recovered
materials, it would be redundant for EPA to include performance
considerations in the description of the designation of consolidated
and reprocessed latex paints. For this reason, in the final
designations published today, EPA has not included the language about
end use specifications suggested by the commenter.
Comment: The commenter also had noted that an Army Corps of
Engineers study of reprocessed and consolidated latex paints had not
yet been completed. The commenter stated that it was therefore
premature for EPA to designate latex paints.
Response: EPA noted in the background document for the proposed CPG
II that the Paint Technology Center at the U.S. Army Construction
Engineering Research Laboratories (USACERL) was planning to test the
performance of latex paint containing postconsumer materials. See page
28, ``Comprehensive Procurement Guideline (CPG) II--Supporting
Analyses,'' August 1, 1996. EPA contacted USACERL about the study of
reprocessed latex paint. USACERL informed EPA that it does not have any
specific concerns about the performance qualities of reprocessed latex
paint in different applications. Rather, USACERL tested reprocessed
latex paints to confirm that they met GSA specification TT-P-2846 for
``recycled'' latex paints. USACERL also tested reprocessed latex paints
against the GSA specifications for interior and exterior latex paints.
To date, USACERL found that the reprocessed paints tested met the
specifications for recycled latex paint and interior latex paints.
USACERL is completing testing against the exterior paint specification,
but the reprocessed latex paints performed well against the exterior
paint tests conducted to date. Based on this information about the
results of the USACERL testing of reprocessed and consolidated latex
paints, EPA does not believe that the designation of latex paint should
be delayed pending the final outcome of the USACERL study.
Further, USACERL informed EPA that the Army uses acrylic latex
paints to paint primed metal and expressed concern only about the
availability of reprocessed latex paint containing 100% acrylic.
USACERL had not researched the availability of this item, however. EPA
notes that under RCRA section 6002, a procuring agency is not required
to purchase an EPA-designated item containing recovered materials if
that item does not meet the agency's reasonable performance standards
or if the item is not reasonably available. If the Army requires
acrylic latex paints for a particular application and this item is not
available containing recovered materials, then the Army is not required
to purchase latex paint containing recovered materials for that
application. For such situations, EPA has previously recommended that
agencies place a statement in their affirmative procurement programs
indicating that the item is not available.
Because the purpose of the government buy-recycled program is to
develop markets for recovered materials, EPA is reluctant to exclude
acrylic latex paints from the scope of the latex paint designation.
Rather, EPA believes that the Army should determine periodically
whether acrylic latex paints containing recovered materials are
available in order to encourage the recovery of this type of paint from
the waste stream. Further, EPA notes that during development of CPG II,
neither the Army nor any other Federal agency requested that EPA limit
the scope of the designation. Therefore, in the final CPG II, EPA is
designating latex paints and not excluding acrylic latex paints.
Comment: The commenter further stated that EPA had failed to
examine the true costs of using reprocessed latex paint because it is
``likely'' that more coats of reprocessed paint would be required and
``it seems likely that'' more frequent repainting will be required
where reprocessed latex paint is used. The commenter provided no
documentation to support these comments.
Response: The information available to EPA from research, product
testing by CalPoly, and users indicates that reprocessed latex paints
cover the same as virgin latex paints and do not require more frequent
repainting. This information is included in the record for this
rulemaking. According to the CalPoly research report and additional
research conducted by EPA, reprocessed and consolidated paints meet
specifications for sag resistance (a measure of a paint's tendency to
run on a vertical surface), contrast ratios (ability to hide the
underlying surface), and scrub resistance (an indication of the
resistance of a paint film to repeated washing or scrubbing). None of
the users contacted by EPA had experienced problems with paint coverage
or durability. Based on this testing and use information, EPA believes
that procuring agencies will not incur additional costs from extra or
more frequent coats of paint.
Comment: The commenter also noted that reprocessed and consolidated
latex paints are not universally available in the United States.
Response: EPA has never limited its designations only to items that
are
[[Page 60969]]
``universally'' available or immediately available in every part of the
United States. Because the purpose of the federal buy-recycled program
is to develop markets for, and spur development of, products containing
recovered materials, it has always been understood that these items
might not be available to all procuring agencies in all instances. Nor
does RCRA specify universal availability as a criteria for EPA to
consider when designating items. Rather, it is expected that, as
procuring agencies seek to purchase products containing recovered
materials, these items will become more widely and universally
available. For this reason, RCRA section 6002 provides that procuring
agencies are not required to buy an EPA-designated item containing
recovered materials if that item is not available within a reasonable
time.
EPA explicitly recognized this early in its development of the
guidelines program. Thus, for example, in the first procurement
guideline issued in 1983, EPA designated cement and concrete containing
coal fly ash, even though coal fly ash was not available in every part
of the country. EPA recommended that agencies provide incentives for
greater availability by allowing for the use of coal fly ash as an
optional or alternate material. EPA stated that ``[a]llowing fly ash
will also serve as an incentive to potential users in that area.
Contractors will not make the commitment necessary to use fly ash
unless it is more readily accepted. Including it in bid solicitations
and allowing it to be used provides this incentive.'' See 48 FR 4242,
January 28, 1983.
3. Snow Fencing
Comment: GSA recommended that EPA revise the definition of ``snow
fencing'' by adding ``and to delineate construction areas.''
Response: EPA reviewed its research into snow fencing and found
that plastic fencing containing recovered materials can be used for
several applications, including control of drifting snow and sand and
as a warning or safety barrier at construction areas. Plastic fencing
used in these applications is called many names--snow fencing,
temporary fencing, beach or dune fencing, warning barrier, and safety
barrier. While ``snow fencing'' is a commonly used term, EPA agrees
with GSA that using this term alone can mislead procuring agencies
about the scope of EPA's designation. Therefore, in Sec. 247.14(b) of
today's final CPG II, EPA is revising the designation of ``snow
fencing'' as follows: plastic fencing containing recovered plastic for
use in controlling snow or sand drifting and as a warning/safety
barrier in construction or other applications. EPA also is changing the
term ``snow fencing'' to ``plastic fencing'' in the definitions and
adding the phrase ``and to provide a warning or barrier in construction
and other areas'' to the definition.
4. Ink Jet Cartridges
Commenters raised a number of concerns in opposing the proposed
designation of ink jet cartridges. These comments raised solid waste,
performance, quality, availability, and patent and trademark concerns.
After considering the information submitted by commenters, EPA has
concluded that there is insufficient evidence to support a designation
of ink jet cartridges at this time. On April 14, 1997, EPA published a
Notice of Data Availability in the Federal Register (62 FR 18072) to
notify interested parties of the tentative decision not to designate
ink jet cartridges, summarize the information available to the Agency,
and request further public comment.
EPA received only two responses to the April 14 notice--one from a
vendor of ink jet refilling equipment and additional information from
one of the original commenters. The vendor appears to have promising
technology for resolving many of the performance and solid waste issues
raised by commenters. The vendor did not, however, submit sufficient
information to change EPA's earlier conclusion that there is
insufficient information to support designating ink jet cartridges at
this time. In particular, the commenter did not address the lack of
industry quality and performance standards. Therefore, EPA has decided
not to designate ink jet cartridges in today's final CPG II. EPA also
is deleting the recommendations for purchasing ink jet cartridges from
the final RMAN II published in the notice section of today's Federal
Register. EPA will continue to monitor developments in ink jet
cartridge and refilling/remanufacturing technology and will consider
designating ink jet cartridges in the future.
C. Comments on Other Items Considered for Designation
In the background document for the proposed CPG II, EPA stated that
it had considered the following 12 items and determined that it was
inappropriate to designate them: lead-acid batteries, water retention
systems, flat sheet glass, wall covering, ceramic and glass tile, glass
fiber-reinforced concrete, curbing, dock bumpers, glass beads for
reflective paint, magazine boxes, rulers, and pallet stretch wrap. EPA
requested additional information demonstrating that the items should be
reconsidered for possible future designation. No comments were
submitted on these items or on EPA's decision not to designate them.
Therefore, EPA is no longer considering these items for future
designation in the CPG.
D. Comments on Public Participation Process
On September 20, 1995, EPA issued a notice in the Federal Register
explaining the procedures for interested persons to (1) suggest items
for EPA to consider for designation in future updates to the CPG and
(2) provide information for EPA to use in developing or revising its
recommendations for recovered materials content levels contained in the
RMANs that accompany the CPG updates (60 FR 48714). EPA stated that it
would issue annual notices to request additional information from
interested persons.
No comments were received on these procedures, and EPA plans to
continue to use them. Over 30 commenters submitted information on items
for EPA to consider. Some of these comments provided supporting
information for items designated in today's CPG II. EPA currently is
evaluating the other items for potential designation in future CPG
updates. Because EPA is still considering these items, we will not be
issuing annual notices requesting additional suggestions and
information. However, persons wishing to submit information for EPA to
consider may send it to: Buy Recycled Program, U.S. Environmental
Protection Agency, 5306W, 401 M Street, SW., Washington, DC 20460. Any
submittals should address the seven areas listed in the September 20,
1995 Federal Register notice. See 60 FR 48715.
VI. Availability of Designated Items
EPA has developed lists of manufacturers and vendors of the items
designated in today's rule. In addition, EPA has updated the lists of
manufacturers and vendors of the 24 items designated in the original
CPG. These lists have been placed in the RCRA docket for this action
and will be updated periodically as new sources are identified and
product information changes. These lists will also be available through
EPA's web site on the Internet. (See section VIII below for Internet
access information.) Procuring agencies should contact the
manufacturers/vendors directly to discuss their specific needs and to
[[Page 60970]]
obtain detailed information on the availability and price of recycled
products meeting those needs.
Other information is available from the GSA, the Defense Logistics
Agency (DLA), State and local recycling offices, private corporations,
and trade associations. Refer to Section XV of the document, ``Final
CPG II/RMAN II Background Document'' for more detailed information on
these other sources of information.
State and local recycling programs are also a potential source of
information on local distributors and availability. In addition, state
and local government purchasing officials that are contracting for
recycled content products may have relative price information. A
current list of state purchasing/procurement officials has been placed
in the docket for the final CPG II. Also included in the public docket
is a list of states with recycled content products purchasing programs,
current as of April 1994. Information is also available from trade
associations whose members manufacture or distribute products
containing recovered materials. These trade associations are included
in the updated lists of product manufacturers and vendors described
above.
Additionally, Environmental Newsletters, Inc., publisher of Waste
Reduction Tips, prepared a directory of recycled product directories.
EPA has placed the ``1996 Directory of Recycled Product Directories,''
from Environmental Newsletters' Recycled Products Business Letter, in
the public docket for the final CPG II. Environmental Newsletters, Inc.
can be reached at 703 758-8436 for further information.
Finally, EPA is considering mechanisms to increase the electronic
dissemination of information about the items designated in the CPG,
such as a buy-recycled home page on the Internet. If the Agency decides
to implement such mechanisms, we will provide public notice in the
Federal Register in concert with future revisions to the CPG.
VII. Economic Impact Analysis
A. Requirements of Executive Order 12866
Executive Order 12866 requires agencies to determine whether a
regulatory action is ``significant.'' The Order defines a
``significant'' regulatory action as one that is likely to result in a
rule that may: (1) have an annual effect on the economy of $100 million
or more or adversely affect, in a material way, the economy, a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments or
communities; (2) create serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients; or (4) raise
novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
EPA estimates that the costs associated with today's rule is well
below the $100 million threshold. To enable the Agency to evaluate the
potential impact of today's action, EPA has prepared an Economic Impact
Analysis (EIA), as discussed below. For more information on the
estimated economic impact of today's rule, see the ``Economic Impact
Analysis for the Final Comprehensive Procurement Guideline II.''
1. Summary of Costs
EPA estimated that the annualized costs of the proposed rule to
designate 13 items would fall in the range of $4.8 to $8.7 million.
Because today's final rule designates 12 items, rather than 13 items,
EPA revised the economic impact analysis to reflect the fact that fewer
items are being designated than originally proposed.
As shown in Table 2 below, EPA estimates that the annualized costs
of today's rule will range from $4.5 to $8.4 million, with costs being
spread across all procuring agencies (i.e., Federal agencies, State and
local agencies that use appropriated Federal funds to procure
designated items, and government contractors). These costs are
annualized over a 10-year period at a three percent discount rate.
Because there is considerable uncertainty regarding several of the
parameters that drive the costs, EPA conducted sensitivity analyses to
identify the range of potential costs of today's rule. Thus, high-end
and low-end estimates are presented along with the best estimate. The
primary parameter affecting the range of cost estimates is the number
of products each procuring agency is assumed to procure each year.
Details of the costs associated with today's final rule are provided in
the Economic Impact Analysis for this rule.
Table 2.--Summary of Annualized Costs of CPG II Amendments to All
Procuring Agencies
------------------------------------------------------------------------
Best estimate
Total total
Procuring agency annualized annualized
costs ($1000) costs ($1000)
------------------------------------------------------------------------
Federal Agencies........................ 5,008-2,584 5,008
States.................................. 926-520 926
Local Governments....................... 2,337-1,324 1,700
Contractors............................. 81-27 54
Total................................... 8,352-4,455 8,352
------------------------------------------------------------------------
As a result of today's action, procuring agencies will be required
to perform certain activities pursuant to RCRA section 6002, including
rule review and implementation; estimation, certification, and
verification of designated item procurement; and for Federal agencies,
reporting and recordkeeping. The costs shown in Table 2 represent the
estimated annualized costs associated with these activities. Table 2
also includes estimates for Federal agencies that will incur costs for
specification revisions and affirmative procurement program
modification. More details of the costs associated with today's rule
are included in the Economic Impact Analysis.
With regard to possible impacts to business, including small
businesses, there may be both positive and negative impacts to
individual businesses. EPA anticipates that today's final rule will
provide additional opportunities for recycling businesses to begin
supplying recovered materials to manufacturers and products made from
recovered materials to procuring agencies. In addition, other
businesses, including small businesses, that do not directly contract
with procuring agencies may be affected positively by the increased
[[Page 60971]]
demand for recovered materials. These include businesses involved in
materials recovery programs and materials recycling. Municipalities
that run recycling programs are also expected to benefit from increased
demand for certain materials recovered from municipal solid waste.
EPA is unable to determine the number of businesses, including
small businesses, that may be adversely impacted by today's final rule.
It is possible that if a business that currently supplies products to a
procuring agency uses virgin materials only, the amendments to the CPG
may reduce its ability to compete for future contracts. However, the
amendments to the CPG will not affect existing purchase orders, nor
will it preclude businesses from adapting their product lines to meet
new specifications or solicitation requirements for products containing
recovered materials. Thus, many businesses, including small businesses,
that market to procuring agencies have the option to adapt their
product lines to meet specifications.
2. Product Cost
Another potential cost of today's action is the possible price
differential between an item made with recovered materials and an
equivalent item manufactured using virgin materials. The relative
prices of recycled content products compared to prices of comparable
virgin products vary. In many cases, recycled content products are less
expensive than their virgin counterparts. In other cases, virgin
products have lower prices than recycled content products. Many factors
can affect the price of various products. For example, temporary
fluctuations in the overall economy can create oversupplies of virgin
products, leading to a decrease in prices for these items. Under RCRA
section 6002(c), procuring agencies are not required to purchase a
product containing recovered materials if it is only available at an
unreasonable price. However, the decision to pay more or less for such
a product is left to the procuring agency.
3. Summary of Benefits
EPA anticipates that today's final rule will result in increased
opportunities for recycling and waste prevention (e.g., from reinking
ribbons or repairing pallets). Waste prevention can reduce the nation's
reliance on natural resources by reducing the amount of materials used
in making products. Less raw materials use results in a commensurate
reduction in energy use and a reduction in the generation and release
of air and water pollutants associated with manufacturing.
Additionally, waste prevention leads to a reduction in the
environmental impacts of mining, harvesting, and other extraction
processes.
Recycling can effect the more efficient use of natural resources.
For many products, the use of recovered materials in manufacturing can
result in significantly lower energy and material input costs than when
virgin raw materials are used; reduce the generation and release of air
and water pollutants often associated with manufacturing; and reduce
the environmental impacts of mining, harvesting, and other extraction
of natural resources. For example, according to information published
by the Steel Recycling Institute, recycling one ton of steel saves
nearly 11 million Btus of energy; 2,500 lbs. of ore; 1,000 lbs. of
coal; and 40 lbs. of limestone. Recycling can also reduce greenhouse
gas emissions associated with manufacturing new products. When compared
to landfilling, recycling one ton of high density polyethylene, low
density polyethylene, or polyethylene terephthalate plastic can reduce
greenhouse gas emissions by up to 0.64 metric tons of carbon equivalent
(MTCE). In addition to conserving non-renewable resources and reducing
the environmental impacts associated with resource extraction and
processing, recycling can also divert large amounts of materials from
landfills, conserving increasingly valuable space for the management of
materials that truly require disposal.
By purchasing products made from recovered materials, government
agencies can increase opportunities for realizing these benefits. On a
national and regional level, today's final rule can result in expanding
and strengthening markets for materials diverted or recovered through
public and private collection programs. Also, since many State and
local governments, as well as private companies, reference EPA
guidelines when purchasing designated items, this rule can result in
increased purchase of recycled products, locally, regionally, and
nationally and provide opportunities for businesses engaged in
recycling activities.
B. Unfunded Mandates Reform Act of 1995 and Consultation with State,
Local, and Tribal Governments
Under section 202 of the Unfunded Mandates Reform Act of 1995 (the
Act), P.L. 104-4, which was signed into law on March 22, 1995, EPA
generally must prepare a written statement for rules with Federal
mandates that may result in estimated costs to State, local, or tribal
governments in the aggregate, or to the private sector, of $100 million
or more in any one year. When such a statement is required for EPA
rules, under section 205 of the Act EPA must identify and consider
alternatives, including the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. EPA
must select that alternative, unless the Administrator explains in the
final rule why it was not selected or it is inconsistent with law.
Before EPA establishes regulatory requirements that may significantly
or uniquely affect small governments, including tribal governments, it
must develop under section 203 of the Act a small government agency
plan. The plan must provide for notifying potentially affected small
governments, giving them meaningful and timely input in the development
of EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising them on compliance
with the regulatory requirements.
EPA has determined that today's final rule does not include a
Federal mandate that may result in estimated annualized costs of $100
million or more to either State or local governments in the aggregate,
or to the private sector. To the extent enforceable duties arise as a
result of this rule on State and local governments, they are exempt
from inclusion as Federal inter-governmental mandates if such duties
are conditions of Federal assistance. Even if they are not conditions
of Federal assistance, such enforceable duties do not result in a
significant regulatory action being imposed upon State and local
governments since the estimated aggregate cost of compliance for them
are not expected to exceed, at the maximum, $2.6 million annually. The
cost of enforceable duties which may arise as a result of today's rule
on the private sector are estimated not to exceed $54,000 annually.
Thus, today's rule is not subject to the written statement requirement
in sections 202 and 205 of the Act.
The newly designated items included in the CPG may give rise to
additional obligations under section 6002(i) (requiring procuring
agencies to adopt affirmative procurement program and to amend their
specifications) for state and local governments. As noted above, the
expense associated with any additional costs is not expected to exceed,
at the maximum, $2.6 million annually. In compliance with E.O. 12875,
which requires the involvement of State and local governments in the
development of certain Federal regulatory actions,
[[Page 60972]]
EPA conducts a wide outreach effort and actively seeks the input of
representatives of state and local governments in the process of
developing its guidelines.
When EPA proposes to designate items in the CPG, information about
the proposal is distributed to governmental organizations so that they
can inform their members about the proposals and solicit their
comments. These organizations include the U.S. Conference of Mayors,
the National Association of Counties, the National Association of Towns
and Townships, the National Association of State Purchasing Officials,
and the American Association of State Highway and Transportation
Officials. EPA also provides information to potentially affected
entities through relevant recycling, solid waste, environmental, and
industry publications. In addition, EPA's regional offices sponsor and
participate in regional and state meetings at which information about
proposed and final designations of items in the CPG is presented.
Finally, EPA has sponsored buy-recycled education and outreach
activities by organizations such as the U.S. Conference of Mayors, the
Northeast Recycling Council, the Environmental Defense Fund, Keep
America Beautiful, and the California Local Government Commission,
whose target audience includes small governmental entities.
The requirements do not significantly affect small governments
because they are subject to the same requirements as other entities
whose duties result from today's rule. As discussed above, the expense
associated with any additional costs to State and local governments, is
not expected to exceed, at the maximum, $2.6 million annually. The
requirements do not uniquely affect small governments because they have
the same ability to purchase these designated items as other entities
whose duties result from today's rule. Additionally, use of designated
items affects small governments in the same manner as other such
entities. Thus, any applicable requirements of section 203 have been
satisfied.
C. Impacted Entities
RCRA section 6002 applies to procuring agencies that use at least a
portion of Federal funds to procure over $10,000 worth of a designated
product in a given year. EPA estimates that this rule would apply to 35
Federal agencies, all 56 states and territories and 1,900 local
governments. EPA calculated the number of local entities that would be
impacted based on information regarding the amount of Federal funds
that are dispersed to specific counties. In addition, EPA assumed that
1,000 contractors may be affected. A description of this information is
provided in the Economic Impact Analysis for today's rule.
D. Regulatory Flexibility Act and Small Business Regulatory Enforcement
Fairness Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act,
provides that, whenever an agency promulgates a final rule under 5
U.S.C. 553, after being required by that section or any other law to
public a general notice of proposed rulemaking, the agency must prepare
a final regulatory flexibility analysis (FRFA). The agency must prepare
an FRFA for a final rule unless the head of the agency certifies that
it will not have a significant economic impact on a substantial number
of small entities. The Administrator is today certifying, pursuant to
section 605(b) of the RFA, that the final rule will not have a
significant economic impact on a substantial number of small entities.
Therefore, the Agency did not prepare an FRFA.
The final rule will not have a significant economic impact on a
substantial number of small entities for the following reasons. The RFA
defines ``small entity'' to mean a small business, small organization
or small governmental jurisdiction. EPA's action today in designating
12 new items that are or may be produced with recovered materials
content may establish requirements applicable, in some cases, to small
governmental jurisdictions and small businesses.
In the case of small entities which are small governmental
jurisdictions, EPA has concluded that the rule will not have a
significant economic impact. EPA concluded that no small government
with a population of less than 50,000 is likely to incur costs
associated with the designation of the 12 items because it is
improbable that such jurisdictions will purchase more than $10,000 of
any designated item. Consequently, section 6002 would not apply to
their purchases of designated items. Moreover, there is no evidence
that complying with the requirements of section 6002 would impose
significant additional costs on the small governmental entity to comply
in the event that a small governmental jurisdiction purchased more than
$10,000 worth of a designated item. This is the case because in many
instances items with recovered materials content may be less expensive
than items produced from virgin material.
Similarly, EPA has concluded that the economic impact on small
entities that are small businesses would not be significant. The CPG
applies to small businesses that are ``procuring agencies.'' The
potential economic impact of the CPG on small businesses that are
``procuring agencies'' is minimal.
RCRA section 6002 applies to a contractor with a Federal agency (or
a state or local agency that is a procuring agency under Section 6002)
when the contractor is purchasing a designated item, is using Federal
money to do so, and exceeds the $10,000 threshold. There is an
exception for purchases that are ``incidental to'' the purposes of the
contract, i.e., not the direct result of the funds disbursement. For
example, a courier service contractor is not required to purchase re-
refined oil and retread tires for its fleets because purchases of these
items are incidental to the purpose of the contract. Therefore, as a
practical matter, there would be very limited circumstances when a
contractor's status as a ``procuring agency'' for section 6002 purposes
would impose additional costs on the contractor. Thus, for example, if
the State or Federal agency is contracting with a supplier to obtain a
designated item, then the cost of the designated item (and any
associated costs of meeting section 6002 requirements) to the supplier
presumably will be fully recovered in the contract price. Any costs to
small businesses that are ``procuring agencies'' (and subject to
section 6002) are likely to be insubstantial. Even if a small business
is required to purchase other items with recovered materials content,
such items may be less expensive than items with virgin content.
Therefore, EPA provides the following certification under the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C.
Sec. 605(b), I hereby certify that today's designations will not have a
significant economic impact on a substantial number of small entities.
Because today's action does not impose significant new burdens on small
entities, this rule does not require a final regulatory flexibility
analysis.
The basis for EPA's conclusions that today's rule will not have a
significant impact on a substantial number of small entities is
described in greater detail in the ``Economic Impact Analysis'' for the
rule which is located in the RCRA public docket.
[[Page 60973]]
While not a factor relevant to determining whether the rule will
have a significant impact for RFA purposes, EPA believes that the
effect of today's rule would be to provide positive opportunities to
businesses engaged in recycling and the manufacture of recycled
products. Purchase and use of recycled products by procuring agencies
increase demand for these products and result in private sector
development of new technologies, creating business and employment
opportunities that enhance local, regional, and national economies.
Technological innovation associated with the use of recovered materials
can translate into economic growth and increased industry
competitiveness worldwide, thereby, creating opportunities for small
entities.
VIII. Supporting Information and Accessing Internet
The index of supporting materials for today's final CPG II is
available in the RCRA Information Center (RIC) and on the Internet. The
address and telephone number of the RIC are provided in ADDRESSES
above. The index and the following supporting materials are available
in the RIC and on the Internet:
``Final CPG II/RMAN II Background Document,'' U.S. EPA, Office of
Solid Waste and Emergency Response, September 1997.
Copies of the following supporting materials are available for
viewing at the RIC only:
``Economic Impact Analysis for the Final Comprehensive Procurement
Guideline II,'' U.S. Environmental Protection Agency, August 1997.
``Ex Parte Meeting Notes, Meeting Between U.S. Environmental
Protection Agency and National Paint & Coatings Association, June 17,
1997.''
``Letter to Dana F. Arnold, U.S. Environmental Protection Agency,
from National Paint & Coatings Association, July 28, 1997.''
``Telephone Notes, Testing of Reprocessed/consolidated Latex Paint,
Between Dana Arnold, U.S. Environmental Protection Agency and Sue
Drozdz, Army Corps of Engineers, May 19, 1997.''
``National Association of State Purchasing Officials, 1996-1997
Membership Roster.''
Follow these instructions to access the information electronically:
WWW: http://www.epa.gov/epaoswer/non-hw/index.htm#procure.
FTP: ftp.epa/gov
Login: anonymous
Password: your Internet address
Files are located in /pub/epaoswer.
IX. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 247
Environmental protection, Channelizers, Consolidated latex paint,
Construction products, Delineators, Flexible delineators, Garden hose,
Garden edging, Government procurement, Laminated paperboard,
Landscaping products, Latex paint, Lawn edging, Office products,
Pallets, Park and recreation products, Parking stops, Plastic fencing,
Printer ribbons, Procurement guidelines, Recycling, Reprocessed latex
paint, Restroom dividers/partitions, Shower dividers/partitions, Soaker
hose, Structural fiberboard, Temporary traffic control devices,
Transportation products.
Dated: October 8, 1997.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40 , chapter I of
the Code of Federal Regulations, part 247, is amended as set forth
below.
PART 247--COMPREHENSIVE PROCUREMENT GUIDELINE FOR PRODUCTS
CONTAINING RECOVERED MATERIALS
1. The authority citation for part 247 continues to read as
follows:
Authority: 24 U.S.C. 6912(a) and 6962; E.O. 12873, 58 FR 54911.
2. In Sec. 247.2, paragraph (d) is added to read as follows:
Sec. 247.2 Applicability.
* * * * *
(d) RCRA section 6002(c)(1) requires procuring agencies to procure
designated items composed of the highest percentage of recovered
materials practicable, consistent with maintaining a satisfactory level
of competition, considering such guidelines. Procuring agencies may
decide not to procure such items if they are not reasonably available
in a reasonable period of time; fail to meet reasonable performance
standards; or are only available at an unreasonable price.
3. In Sec. 247.3, the following definitions are added
alphabetically:
Sec. 247.3 Definitions.
* * * * *
Channelizers means highly visible barrels or drums that can be
positioned to direct traffic through detours;
Delineator means a highly visible pavement marker that can be
positioned to direct traffic or define boundaries;
* * * * *
Flexible delineator means a highly visible marker that can be
positioned to direct traffic or define boundaries and that will flex if
struck by a vehicle to prevent damage to the vehicle or the delineator;
* * * * *
Garden hose means a flexible tubing that conducts water to a
specific location;
* * * * *
Latex paint means a water-based decorative or protective covering
having a latex binder;
Lawn edging means a barrier used between lawns and landscaped areas
or garden beds to prevent grass roots or weeds from spreading to the
landscaped areas;
* * * * *
Pallet means a portable platform for storing or moving cargo or
freight;
* * * * *
Parking stop means a barrier used to mark parking spaces and keep
parked vehicles from rolling beyond a designated parking area;
* * * * *
Plastic fencing means a barrier with an open-weave pattern that can
be used to control drifting snow or sand by restricting the force of
wind and to provide a warning or barrier in construction and other
areas;
* * * * *
Printer ribbon means a nylon fabric designed to hold ink and used
in dot matrix and other types of impact printers;
* * * * *
Restroom divider/partition means a barrier used to provide privacy
in public restroom facilities;
* * * * *
Shower divider/partition means a water-proof barrier used to
provide privacy in public shower facilities;
Soaker hose means a perforated flexible tubing that is used to
deliver gentle irrigation to plants;
* * * * *
4. Section 247.12 is amended by adding new paragraphs (f) and (g)
to read as follows:
[[Page 60974]]
Sec. 247.12 Construction products.
* * * * *
(f) Shower and restroom dividers/partitions containing recovered
plastic or steel.
(g)(1) Consolidated latex paint used for covering graffiti; and
(2) Reprocessed latex paint used for interior and exterior
architectural applications such as wallboard, ceilings, and trim;
gutter boards; and concrete, stucco, masonry, wood, and metal surfaces.
5. Section 247.13 is amended by redesignating the existing text as
paragraph (a) and by adding new paragraphs (b), (c), (d), and (e) to
read as follows:
Sec. 247.13 Transportation products.
* * * * *
(b) Parking stops made from concrete or containing recovered
plastic or rubber.
(c) Channelizers containing recovered plastic or rubber.
(d) Delineators containing recovered plastic, rubber, or steel.
(e) Flexible delineators containing recovered plastic.
6. Section 247.14 is amended by redesignating the existing text as
paragraph (a) and by adding a new paragraph (b) to read as follows:
Sec. 247.14 Park and recreation products.
* * * * *
(b) Plastic fencing containing recovered plastic for use in
controlling snow or sand drifting and as a warning/safety barrier in
construction or other applications.
7. In Sec. 247.15, new paragraphs (c) and (d) are added to read as
follows:
Sec. 247.15 Landscaping products.
* * * * *
(c) Garden and soaker hoses containing recovered plastic or rubber.
(d) Lawn and garden edging containing recovered plastic or rubber.
8. In Sec. 247.16, new paragraphs (f) and (g) are added to read as
follows:
Sec. 247.16 Non-paper office products.
* * * * *
(f) Printer ribbons.
(g) Plastic envelopes.
9. Section 247.17 is revised to read as follows:
Sec. 247.17 Miscellaneous products.
(a) Pallets containing recovered wood, plastic, or paperboard.
(b) (Reserved)
[FR Doc. 97-29734 Filed 11-12-97; 8:45 am]
BILLING CODE 6560-50-P
