PART 252--GUIDELINE FOR FEDERAL PROCUREMENT OF LUBRICATING OILS CONTAINING RE-REFINED OIL Subpart A--General Sec. 252.1 Purpose. 252.2 Designation. 252.3 Applicability. 252.4 Definitions. Subpart B--Specifications 252.10 Revisions. 252.11 Recommendations. Subpart C--Affirmative Procurement Program 252.20 General. 252.21 Preference program. 252.22 Promotion program. 252.23 Estimates, certification, and verification. 252.24 Annual review and monitoring. 252.25 Implementation. Authority: 42 U.S.C. 6912(a) and 6962. Source: 53 FR 24715, June 30, 1988, unless otherwise noted. Subpart A--General 252.1 Purpose. (a) The purpose of this guideline is to assist procuring agencies in complying with the requirements of section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA or the Act), as amended, 42 U.S.C. 6962, as that section applies to procurement of lubricating oils containing re-refined oil. (b) This guideline contains recommendations for use in implementing the requirements of section 6002, including revision of specifications, purchasing activities, and procurement. (c) The Agency believes that adherence to the recommendations in the guideline constitutes compliance with section 6002. However, procuring agencies may adopt other types of procurement programs consistent with section 6002. 252.2 Designation. EPA designates lubricating oils as items which are or can be produced with recovered materials (re-refined oil) and whose procurement by procuring agencies will carry out the objectives of section 6002 of RCRA. For purposes of this designation, ``lubricating oils'' means engine lubricating oils, hydraulic fluids, and gear oils, excluding marine and aviation oils. 252.3 Applicability. (a)(1) This guideline applies to all procuring agencies and to all procurement actions involving lubricating oils where the procuring agency purchases $10,000 or more worth of one of these items during the course of a fiscal year, or where the cost of such items or of functionally equivalent items purchased during the preceding fiscal year was $10,000 or more. For purposes of the $10,000 threshold, all lubricating oils are considered to be ``functionally equivalent.'' (2) This guideline applies to Federal agencies, to State or local agencies using appropriated Federal funds, and to persons contracting with any such agencies with respect to work performed under such contracts. Federal agencies should note that the requirements of RCRA section 6002 apply to them whether or not appropriated Federal funds are used for procurement of items designated by EPA. (3) The $10,000 threshold applies to procuring agencies as a whole rather than to agency subgroups such as regional offices or subagencies. (b) The term ``procurement actions'' includes purchases made directly by a procuring agency and purchases made by any person directly in support of work being performed for a procuring agency (e.g., by a contractor). (c) This guideline does not apply to purchases which are not the direct result of a contract, grant, loan, funds disbursement, or agreement with a procuring agency. 252.4 Definitions. As used in this guideline: (a) Act or RCRA means the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq. (b) Engine lubricating oils means petroleum-based oils used for reducing friction in engine parts. (c) Federal agency means any department, agency, or other instrumentality of the Federal Government; any independent agency or establishment of the Federal Government including any Government corporation; and the Government Printing Office. (d) Gear oils means petroleum-based oils used for lubricating machinery gears. (e) Hydraulic fluids means petroleum-based hydraulic fluids. (f) Person means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, Federal agency, State, municipality, commission, political subdivision of a State, or any interstate body. (g) Practicable means capable of being used consistent with: Performance in accordance with applicable specifications, availability at a reasonable price, availability within a reasonable period of time, and maintenance of a satisfactory level of competition. (h) Procurement item means any device, good, substance, material, product, or other item, whether real or personal property, which is the subject of any purchase, barter, or other exchange made to procure such item. (i) Procuring agency means any Federal agency, or any State agency or agency of a political subdivision of a State which is using appropriated Federal funds for such procurement, or any person contracting with any such agency with respect to work performed under such contract. (j) Re-refined oils means used oils from which the physical and chemical contaminants acquired through previous use have been removed through a refining process. (k) Specification means a description of the technical requirements for a material, product, or service that includes the criteria for determining whether these requirements are met. In general, specifications are in the form of written commercial designations, industry standards, and other descriptive references. Subpart B--Specifications 252.10 Revisions. (a) Federal agencies that have the responsibility for drafting or reviewing specifications for procurement items procured by Federal agencies were required to revise their specifications by May 8, 1986 to eliminate any exclusion of recovered materials and any requirement that items be manufactured from virgin materials. (b) Within one year after the effective date of this guideline, each procuring agency must assure that its specifications for lubricating oils require the use of re-refined oils to the maximum extent possible without jeopardizing the intended end use of these items. (c) EPA recommends that procuring agencies use the specifications identified in 252.11 of this part when procuring lubricating oils containing re-refined oil. 252.11 Recommendations. (a) EPA recommends that procuring agencies use the following specifications when procuring lubricating oils containing re-refined oil: (1) Engine lubricating oils. (i) MIL - L - 46152B (or current version)--Lubricating Oil, Internal Combustion Engine, Administrative Service (ii) API Engine Service Category SF--1980 Gasoline Engine Warranty Maintenance Service (iii) API Engine Service Category CC--Diesel Engine Service (iv) MIL - L - 2104D (or current version)--Lubricating Oil, Internal Combustion Engine, Tactical Service (v) API Engine Service Category CD--Diesel Engine Service (vi) MIL - L - 21260D (or current version)--Lubricating Oil, Internal Combustion Engine, Preservative and Break-In (vii) MIL - L - 46167 (current version)--Lubricating Oil, Internal Combustion Engine, Arctic (2) Hydraulic fluids. (i) MIL - H - 5606 (current version)--Hydraulic Fluid, Petroleum Base; Aircraft, Missile, and Ordnance (ii) MIL - H - 6083 (current version)--Hydraulic Fluid, Petroleum Base, For Preservation and Operation (3) Gear oils. MIL - L - 2105D (or current version) Lubricating Oil, Gear, Multipurpose (b) Copies of the military specifications can be obtained from: Commanding Officer, Naval Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, Pennsylvania 19120. Subpart C--Affirmative Procurement Program 252.20 General. Within one year after the date of publication of this guideline as a final rule, each procuring agency which procures lubricating oils must establish an affirmative program for procuring such oils containing re-refined oil. The program must meet the requirements of section 6002(i) of RCRA, including the establishment of a preference program; a promotion program; procedures for obtaining estimates and certification of recovered materials content and for verifying the estimates and certifications; and an annual review and monitoring program. This subpart provides recommendations for implementing section 6002(i). 252.21 Preference program. (a)(1) EPA recommends that procuring agencies establish minimum re-refined oil content standards for lubricating oils subject to the limitations described in paragraph (b) of this section, so as to achieve procurement of lubricating oils containing re-refined oil to the maximum extent practicable. (2) EPA recommends that procuring agencies set their minimum re-refined oil content standard at the highest level of re-refined oil that they determine meets the statutory criteria of performance, availability, and price (described in paragraph (b) of this section, but no lower than 25 percent re-refined oil. (3) From time to time, procuring agencies should reconsider their minimum content standards to determine whether they should be raised or lowered. The determination should be based on a review of the data compiled on re-refined oil content, price, availability, and performance, as recommended in 252.24(c) of this part, as well as on a comparison of estimates and certifications provided by the vendors. (b) The recommendations in paragraph (a) of this section, as well as any other affirmative procurement program that an agency may adopt, are subject to the following limitations provided in section 6002(c)(1) of RCRA: (1) Maintenance of a satisfactory level of competition; (2) Availability within a reasonable period of time; (3) Ability to meet the specifications in the invitation for bids; (4) Availability at a reasonable price. (c) Procuring agencies must review their procurement practices and eliminate those which would inhibit or preclude procurement of lubricating oils containing re-refined oil. For example, procuring agencies should review the practices of inviting bids and issuing contracts to do the following: (1) Supply a broad range of lubricating oil products on an ``all or none'' basis. (2) Supply lubricating oils for an excessively long period of time. (3) Deliver lubricating oils to geographic locations throughout the United States or to an excessively broad geographic area. (4) Supply excessively large contract quantities. (d) Procuring agencies should make determinations regarding competition and availability in accordance with the Federal Acquisition Regulation (FAR), 48 CFR Ch. 1 et seq. 252.22 Promotion program. EPA recommends that procuring agencies use the following methods, at a minimum, to promote their preference programs: (a) Place a statement in procurement invitations in the Commerce Business Daily or similar publications describing the preference program. (b) Describe the preference program in lubricating oil procurement solicitations or invitations to bid. (c) Discuss the preference program at bidders' conferences. (d) Inform industry trade associations about the preference program. (e) Issue press releases describing the affirmative procurement program to recycling industry journals. 252.23 Estimates, certification, and verification. Each procuring agency must develop estimation, certification, and verification procedures: (a) When a vendor supplies lubricating oils, the contracting officer must require the vendor to estimate the total percentage of re-refined oil in the lubricating oils. EPA recommends that procuring agencies maintain records of these estimates for three years by type of product, quantity purchased, and price paid. (b) When a procurement solicitation or invitation for bid requires a minimum re-refined oil content, procuring agencies must require vendors to certify that the percentage of re-refined oil to be used in the performance of the contract will be at least the amount required by the solicitation or invitation for bid. (c) The affirmative procurement program must contain reasonable verification procedures for estimates and certifications. EPA recommends that procuring agencies revise the contract quality assurance procedures developed under Part 46 of the FAR to include verification of estimates and certifications of re-refined oil content. EPA recommends that procuring agencies verify content by reviewing the mixing records of the manufacturer or blender. 252.24 Annual review and monitoring. (a) Each procuring agency must conduct an annual review and monitoring of the effectiveness of its affirmative procurement program. (b) EPA recommends that the annual review include the following items: (1) An estimate of the quantity of lubricating oils containing re-refined oil purchased and the total quantity of lubricating oils purchased. (2) An assessment of the effectiveness of the promotion program. (3) An assessment of any remaining barriers to purchase of lubricating oils containing re-refined oil to determine whether the barriers are internal (e.g., resistance to use) or external (e.g., unavailability). (4) A summary of the data compiled in each category listed in paragraph (c) of this section. (5) A review of the range of estimates and certifications of re-refined oil content in lubricating oils provided by vendors during the year to determine whether minimum content standards should be raised or lowered. (c) Procuring agencies should monitor their procurements to compile data on the following: (1) The percentages of re-refined oil content in the products procured or offered; (2) Comparative price information on competitive procurements; (3) The quantity of each type of lubricating oil procured over a fiscal year; (4) The availability of lubricating oils to procuring agencies; (5) Types of quality verification tests conducted, if any, together with the categories of lubricating oils containing re-refined oil that failed the tests, the percentages of total virgin products and products containing re-refined oil, respectively, that failed each test, and the nature of the failure; (6) Agency experience with the performance of the procured products. (d) Procuring agencies should prepare a report on their annual review and monitoring of the effectiveness of their procurement programs and make it available to the public. The report should include: (1)(i) A discussion of the procuring agency's decision to raise or lower the minimum content standards in use, if the agency uses the minimum content standards approach; or (ii) A demonstration that the procuring agency's use of the case-by-case approach or a substantially equivalent alternative satisfies the requirement to procure lubricating oils containing re-refined oil to the maximum extent practicable; and (2) Documentation of specification revisions made during the reporting period. 252.25 Implementation. (a) Procuring agencies must complete specification revisions in accordance with RCRA section 6002(d)(2) and development of affirmative procurement programs in accordance with RCRA section 6002(i) within one year from the date of publication of this guideline. (b) Procuring agencies must begin procurement of lubricating oils containing re-refined oil, in compliance with RCRA section 6002, one year from the date of publication of this guideline.