Thursday
November 13, 1997
Part III
Environmental
Protection Agency
40 CFR Part 247
Comprehensive Guideline for
Procurement of Products Containing
Recovered Materials; Final Rule
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60962 Federal Register / Vol. 62, No. 219 / Thursday. November 13. 1997 / Rules and Regulations
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 (§§ 247.3; 247.12
through 247.17) are effective on
November 13,1998. The amendment
adding the procurement limitations
(§ 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
Vin 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 C703)
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
n. Regulated Entities
m. 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
VL 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
Vm. Supporting Information and Accessing
Internet
DC. 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
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Federal Register / Vol. 62. No. 219 / Thursday, November 13. 1997 / Rules and Regulations 60963
RCRA section 1004(17). The procuring designated items where the previous year exceeded $10,000.
requirements of section 6002 apply to price of the item exceeds $10,000 or the Potential regulated entities for this rule
such procuring agencies only when quantity of the item purchased in the are shown in Table 1.
TABLE 1.—ENTITIES POTENTIALLY SUBJECT TO SECTION 6002 REQUIREMENTS TRIGGERED BY CPG AMENDMENTS
Category
Examples of regulated entities
Federal Government .......
State Government
Loral Government
Contractor
Federal departments or agencies that procure $10,000 or more worth of a designated Hern in a
given year.
A State agency that uses appropriated Federal funds to procure $10,000 or more worth of a
designated item in a given year.
A local agency that uses appropriated Federal funds to procure $10,000 or more worth of a
designated item in a given year.
A contractor working on a project funded by appropriated Federal funds that purchases
$10,000 or more worth of a designated Hem 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 die
applicability of this action to a
particular entity, consult the persons
listed In the preceding FOR FURTHBt
INFORMATION CONTACT section.
1H. 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 tiielr obligations
with respect to procurement of
designated items under RCRA section
6002. RCRA requires that each
procuring agency, when purchasing an
EPA-deslgnated item, must purchase
that item composed of the highest
percentage of recovered materials
practicable.
Executive Order 12873 (Executive
Order) establishes die procedure for
EPA to follow In implementing RCRA
section 6002(e). Section 502 of die
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 T) was published on May 1,1995
(60 FR 21370). It established eight
product categories, designated 19 new
items, and consolidated five earlier item
designations. Concurrendy, 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 die
affirmative procurement requirements,
which had inadvertendy been omitted
from CPG I. Today, EPA is (1)
designating 12 of die items, (2)
clarifying die previous designations of
floor tiles, structural, fiberboard, and
laminated paperboard, and (3) codifying
die 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 die following
when determining which items it will
designate:
(1) Availability of die item;
(2) Potential impact of die
procurement of the item by procuring
agencies on die solid waste stream;
(3) Economic and technological
feasibility of producing the item; and
(4) Other uses for die recovered
materials used to produce die item.
EPA consulted with Federal
procurement and requirements officials!
to identify otiier criteria to consider
when selecting items for designation.
Based on tiiese discussions, die Agency
concluded tiiat die 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 die item composed
of die 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) die item is not
reasonably available widiin a reasonable
period of time; (2) die item fails to meet
die performance standards set forth in
die agency's specification; or (3) die
item is available only at an
unreasonable price.
EPA recognized tiiat tiiese limitations
could limit die potential impact of an
individual item designation to die
extent tiiey provide procuring agencies
witii a rationale for not purchasing EPA-
designated items with recovered
materials content. CThe limitations of
section 6002(c) also effectively describe
die circumstances in which a designated
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60964 Federal Register / Vol. 62, No. 219 / Thursday. November 13. 1997 / Rules and Regulations
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 H 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 hot 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
n/RMAN n Background Document,"
which has been placed in the docket for
the final CPG H 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)(l) (A)
through (C). Today, in § 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 § 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 die 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 tiiere 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
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Federal Register / Vol. 62. No. 219 / Thursday. November 13, 1997 / Rules and Regulations 60965
applications and to clarify these issues.
See 61FR 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 ofltems, encompassing many
different applications. In the companion
RMAN, however, the Agency
recommended that procuring agencies
purchase floor tiles wldi specified
minimum recovered rubber or plastic
content for "heavy duty/commercial
type" applications only. EPA limited
the recommended applications to
heavy-duty/commerclal-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 Agenqy 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 diere 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
cntranceways 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 die
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
flberboard 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
flberboard '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 die structural
flberboard 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 die purchase of
cellulosic fiber structural flberboard and
laminated paperboard products only.
The listed applications, and tiierefore
die designation, do not apply to
products made from other similar or
competing materials. In other words, if
a procuring agency is purchasing a
cellulosic flberboard 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
flberboard, it is free to do so. In die
latter instance, tiiere is no requirement
to purchase a cellulosic flberboard
ceiling tile.
IV. Definitions
Today, in § 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
odier standard specifications, or
represent descriptions of die scope of
items being designated.
For several items being designated
today, EPA recommends in the final
RMAN II diat procuring agencies use
two-part content levels—a
postconsumer recovered materials
component and a total recovered
materials component In these instances,
EPA found tiiat botii types of materials
were being used to manufacture die .
products. Recommending only
postconsumer content levels would be
contrary to die RCRA mandate to
maximize the use of recovered materials
because it would fail to acknowledge
die contribution to solid waste
management made by manufacturers'
using otiier manufacturers' byproducts
as feedstock.
Because the recommendations for the
items being designated today use die
terms "postconsumer materials" and
"recovered materials," die definitions
for diese terms are repeated in tiiis
action as a reference for die convenience
of die reader. These definitions were
part of CPG I and can be found 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 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 die proposed
CPG II and die draft RMAN II. These
commenters represented various
interests, including Federal agencies.
State agencies, local governments,
product manufacturers, and product
users. A summary of die comments and
EPA's response can be found in "Final
CPG II/RMAN n Background
Document"
In tiiis section, EPA discusses die
major comments regarding die proposed
CPG II. For a discussion of die major
comments pertaining to the draft RMAN
n, see the preamble to die notice of
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60966 Federal Register / Vol. 62. No. 219 / Thursday, November 13. 1997 / Rules and Regulations
availability of the final RMANII, 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
CPGI rulemakjng, reporting issues were
not addressed as part of the CPG n
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 \k 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 H and draft RMAN n 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 n 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
n/RMAN n 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 s
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 die
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.
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Federal Register / .Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations 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 H and companion RMAN
H 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 H.
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 n.
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 H.
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 H, 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 n at
61 FR 57763.
In researching latex paint for the
proposed CPG n, 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 Hand draft RMAN n, 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 IE. 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
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60968 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations
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 n. 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 H, 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 HI.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 foruYin 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 H 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 n, 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
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Federal Register / Vol. 62. No. 219 / Thursday, November 13, 1997 / Rules and Regulations 60969
"universally" available or Immediately
available In every part of the United
States. Because die 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 considerwhen 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-deslgnated 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]llowlng 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 fhe 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 § 247.14(b) of today's final
CPGII. 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 InkJet cartridges. These
comments raised solid waste,
performance, quality, availability, and
patent and trademark concerns. After
considering the Information submitted
by corrimenters, EPA has concluded that
there is insufficient evidence to support
a designation of InkJet 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 InkJet
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 InkJet cartridges in today's
final CPG n. EPA also is deleting the
recommendations for purchasing InkJet
cartridges from the final RMAN n
published in the notice section of
today's Federal Register. EPA will
continue to monitor developments in
InkJet cartridge and refilling/
remanufacturing technology and will
consider designating ink jet cartridges in
the future.
C. Comments on Otherltems
Considered for Designation
In the background document for the
proposed CPG n, 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 n. 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 1'ists 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
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60970 Federal Register / Vol. 62, No. 219 / Thursday. November 13, 1997 / Rules and Regulations
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 n/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 foY 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 cos.t 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
Procuring agency
Federal Agencies
States
Local Governments
Contractors
Total ;....:
Total
annualized -
costs ($1000)
C (Via*) Kt3A
81 27
8,352-4,455
Best estimate
total
annualized
costs ($1000)
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
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Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations,. 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 CFG 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
oversupplles 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 retaking 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, andjither
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 Ibs. of ore; 1,000
Ibs. of coal; and 40 Ibs. 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
arid 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
morejn-any one year. When such a
_ orient 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 ofPederal 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,
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60972 Federal Register / Vol. 62, No. 219 / Thursday. November 13. 1997 7 Rules and Regulations
EPA conducts a wide outreach effort
and actively seeks die input of
representatives of state and local
governments in the process of
developing its guidelines.
When EPA proposes to designate
items in die CPG, information about die
proposal is distributed to governmental
organizations so that they can inform
their members about the proposals and
solicit their comments. These
organizations include die U.S.
Conference of Mayors, the National
Association of Counties, die National
Association of Towns and Townships,
die National Association of State
Purchasing Officials, and die 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 die CPG is presented. Finally, EPA
has sponsored buy-recycled education
and outreach activities by organizations
such as die U.S. Conference of Mayors,
die Northeast Recycling Council, die
Environmental Defense Fund, Keep
America Beautiful, and die California
Local Government Commission, whose '
target audience includes small
governmental entities.
The requirements do not significantly
affect small governments because they
are subject to die same requirements as
odier entities whose duties result from
today's rule. As discussed above, die
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
die 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 odier 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 tiiat this
rule would apply to 35 Federal agencies,
all 56 states and territories and 1,900
local governments. EPA calculated die
number of local entities that would be
impacted based on information
regarding die amount of Federal funds
that are dispersed to specific counties.
In addition, EPA assumed diat 1,000
contractors may be affected. A
description of diis information is
provided in die 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 etseq., as amended by die
Small Business Regulatory Enforcement
Fairness Act, provides tiiat, whenever
an agency promulgates a final rule
under 5 U.S.C. 553, after being required
by diat section or any odier law to
public a general notice of proposed
rulemaking, die agency must prepare a
final regulatory flexibility analysis
(FRFA). The agency must prepare an
FRFA for a final rule unless die head of
die agency certifies diat 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 die RFA,
diat die final rule will not have a
significant economic impact on a
substantial number of small entities.
Therefore, die Agency did not prepare
an FRFA.
The final rule will not have a
significant economic impact on a
substantial number of small entities for
die 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 diat
are or may be produced widi recovered
materials content may establish
requirements applicable, in some cases,
to small governmental jurisdictions and
small businesses.
In die case of small entities which are
small governmental jurisdictions, EPA
has concluded diat die rule will not
have a significant economic impact.
EPA concluded diat no small
government with a population of less
dian 50,000 is likely to incur costs
associated witii die designation of die
12 items because it is improbable diat
such jurisdictions will purchase more
tiian $10,000 of any designated item.
Consequendy, section 6002 would not
apply to their purchases of designated
items. Moreover, there is no evidence
diat complying witii the requirements of
section 6002 would impose significant
additional costs on die small
governmental entity to comply in die
event diat a small governmental
jurisdiction purchased more than
$10,000 worth of a designated item.
This is die case because in many
instances items with recovered
materials content may be less expensive
tiian items produced from virgin
material.
Similarly, EPA has concluded .diat die
economic impact on small entities diat
are small businesses would not be,
significant The CPG applies to small
businesses diat are "procuring
agencies." The potential economic
impact of die CPG on small businesses
diat are "procuring agencies" is
minimal.
RCRA section 6002 applies to a
contractor widi a Federal agency (or a
state or local agency diat is a procuring
agency under Section 6002) when die
contractor is purchasing a designated
item, is using Federal money to do so,
and exceeds die $10,000 tiireshold.
There is an exception for purchases diat
are "incidental to" die purposes of die
contract, i.e., not die direct result of die
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 tiiese items are incidental
to die purpose of die 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 die contractor. Thus, for example, if
die State or Federal agency is
contracting widi a supplier to-obtain a
designated item, tiien die cost of die
designated item (and any associated
costs of meeting section 6002
requirements) to die supplier
- presumably will be fully recovered in
the contract price. Any costs to small
businesses diat are "procuring agencies"
(and subject to section 6002) are likely
to be insubstantial. Even if a small
business is required to purchase odier
items widi recovered materials content,
such items may be less expensive tiian
items with virgin content.
Therefore, EPA provides die 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. § 605(b), I hereby certify tiiat
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 diat
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 die RCRA
public docket
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Federal Register / Vol. 62, No. 219 / Thursday, November 13. 1997 / Rules and Regulations 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 entitles.
VIII. Supporting Information and
Accessing Internet
The index of supporting materials for
today's final CPG n 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 CPGII/RMAN H 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 H," 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/lndex.htmSprocure.
FTP: ftp.epa/gov
Login: anonymous
Password: your Internet address
Files are located In /pub/epaoswer.
DC. Submission to Congress and the
General Accounting Office
Under 5 U.S.C. 801(a)(l)(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 vmajor 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
flberboard, 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.0.12873, 58 FR 54911.
2. In §247.2, paragraph (d) is added
to read as follows:
§2472 Applicability.
* * * * *
(d) RCRA section 6002(c)(l) 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 § 247.3, the following definitions
are added alphabetically:
§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:
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60974 Federal Register / Vol. 62. No. 219 / Thursday, November 13, 1997'/ Rules and Regulations
§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:
§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:
§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 §247.15, new paragraphs (c) and
(d) are added to read as follows:
§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 § 247.16, new paragraphs (f) and
(g) are added to read as follows:
§247.16 Non-paper office products.
* * * * *
(f) Printer ribbons.
(g) Plastic envelopes.
9. Section 247.17 is revised to read as
follows:
§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]
BILLWG CODE 656O-SO-P
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