agencies with respect to work performed under such contracts.

(i) 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.

(ii) This guideline also applies to State and local agencies and to contractors whenever commingled Federal and non-Federal funds are used to procure tires.

(iii) 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.

As used in this guideline:

"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.

"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.

"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.

"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. "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.

"Procuring agency" means any Federal agency, or any State agency or agency of a political subdivison 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.

"Retread tire" means a worn automobile, truck, or other motor vehicle tire whose tread has been replaced.

"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.

"Tire" means the following types of tires: passenger car tires, light- and heavy-duty truck tires, high speed industrial tires, bus tires, and special service tires (including Military, agricultural, off-the-road, and slow speed industrial).

(a) By May 8, 1986, Federal agencies were required to eliminate from their specifications any exclusion of retread tires and any requirement that tires be manufactured from virgin materials unless there is a technical basis for such exclusion or requirement.

(b) Within one year after the date of publication of this guideline, each procuring agency must assure that its specifications require the use of retread tires to the maximum extent possible without jeopardizing the intended end use of these items. Specifications should indicate the functional requirements of tires to be procured, including the performance criteria (e.g., high speed tires), any desired mileage guarantees, and the size and type of tire required.

(a) Within one year after the date of publication of this guideline as a final rule, each procuring agency which procures tires must establish an affirmative procurement program for procuring retread tires to the maximum extent practicable. The program must meet the requirements of section 6002(i) of RCRA, including the establishment of a preference program; a promotion program; procedures for estimation, certification, and verification; and procedures for conducting an annual review of the affirmative procurement program. This subpart provides recommendations for implementing section 6002(i).

(b) Federal agencies should note that while the U.S. General Services Administration executes tire contracts, it is not responsible for developing and implementing an affirmative procurement program under RCRA section 6002 for any agency but itself. Each Federal agency is responsible for its own section 6002 affirmative procurement program.

supply the greatest number of retread tires in the event that identical low bids are received in response to a solicitation, all other factors being equal.

(b) EPA further recommends that procuring agencies establish a tire procurement policy stating that the agency will first procure retreading services for its used tires to the maximum extent practicable and, if such services are not practicable, obtain replacement tires from the vendor(s) awarded the contract(s) to supply tires.

(c) EPA recommends that a procuring agency that is unable to implement one of the components listed in paragraph (a) of this section document that it is unable to purchase retread tires or tire retreading services due to one or more of the following limitations:

(1) Unsatisfactory level of competition;

(2) Unavailability within a reasonable period of time;

(3) Inability to meet the specifications in the invitation for bids, provided that such specifications satisfy RCRA section 6002(d) and Subpart B of this part;

(4) Unavailability at a reasonable price.

The agency also must continue to attempt to implement the component.

(d) EPA recommends that procuring agencies record the following information for each procurement:

(1) Type and quantity of tires,

(2) Whether new tires, retread tires, or retreading services were procured, (3) Cost per tire, and

(4) If new tires are procured, the reason for not procuring retreading services or retread tires.

(e) Procuring agencies must review their procurement practices and eliminate those which would inhibit or preclude use of retread tires.

§ 253.22 Promotion program.

Procuring agencies must develop a promotion program to promote the preference 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 describing the preference program.

(b) Describe the preference program in tire procurement solicitations or invitations to bid.

(c) Discuss the preference program at bidders' conferences.

(d) Inform industry trade associations about the preference program.

§ 253.23 Estimation, certification, and verification.

(a)(1) Except as provided in paragraph (a)(2) of this section, contracting officers must require vendors who supply tires to procuring agencies to estimate the number of retread tires to be supplied. EPA recommends that procuring agencies retain these estimates for three years from the date they are received.

(2) The estimation requirement does not apply when a procuring agency purchases tire retreading services using an indefinite quantity contract.

(b) EPA recommends that as part of a solicitation for tires as products, procuring agencies require vendors to certify the number of retread tires to be supplied or the percentage of the total tires to be supplied that will be retread tires.

(c) Procuring agencies must establish reasonable procedures to verify the estimates. EPA recommends that procuring agencies randomly check the numbers stamped on tire sidewalls to verify that retread tires have been supplied. (In accordance with U.S. Department of Transportation regulations, the tire will be stamped with the symbol DOT-R.)

§ 253.24 Annual review and monitoring.

(a) Each procuring agency must conduct an annual review and monitoring of the effectiveness of its affirmative procurement program. EPA recommends that the annual review include the following items:

(1) An estimate of the number of retread tires purchased.

(2) An assessment of the effectiveness of the preference program.

(3) An assessment of remaining barriers to procurement of retread tires to determine whether they are internal

(e.g., resistance to use) or external (e.g., unavailability) barriers.

(4) A program to gather statistics. Procuring agencies should monitor their procurements to provide data on the following:

(i) Comparative price information on competitive procurements;

(ii) The quantity of each item procured over a fiscal year;

(iii) The availability of retread tires or tire retreading services to procuring agencies;

(iv) Type of performance tests conducted, together with the type of retread tires that failed the tests, the percentages of all new tires and retread tires procured, respectively, that failed each test, and the nature of the failure;

(v) Agency experience with the performance of the procured products.

(b) Procuring agencies should prepare a report on their annual review and monitoring of the effectiveness of their procurement programs and make these reports available to the public. The reports should contain the following information:

(1) A discussion of how the procuring agency's approach procures retread tires or tire retreading services to the maximum extent practicable. The basis for this discussion should be a review of the data compiled on price, availability, and performance, as well as a comparison of estimates and certifications provided by the vendors.

(2) Documentation of specification revisions made during the year.

§ 253.25 Implementation.

(a) Federal agencies were required to review and revise their specifications, as set forth in § 253.10(a), by May 8, 1986.

(b) Procuring agencies are required to revise their specifications as set forth in § 253.10(b), and to establish affirmative procurement programs, as set forth in Subpart C, by November 17, 1989.

(c) Procuring agencies must begin procurement of retread tires, in compliance with this guideline, by November 17, 1989.

or

Section 7002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, authorizes suit by any person to enforce the Act. These suits may be brought where there is alleged to be a violation by any person (including (a) the United States, and (b) any other governmental instrumentality agency, to the extent permitted by the eleventh amendment to the Constitution) of any permit, standard, regulation, condition, requirement, or order which has become effective under the Act, or a failure of the Administrator to perform any act or duty under the Act, which is not discretionary with the Administrator. These actions are to be filed in accordance with the rules of the district court in which the action is instituted. The purpose of this part is to prescribe procedures governing the notice requirements of subsections (b) and (c) of section 7002 as a prerequisite to the commencement of such actions.

(a) Notice of intent to file suit under subsection 7002(a)(1) of the Act shall be served upon an alleged violator of any permit, standard, regulation, condition, requirement, or order which has become effective under this Act in the following manner:

(1) If the alleged violator is a private individual or corporation, service of notice shall be accomplished by registered mail, return receipt requested, addressed to, or by personal service upon, the owner or site manager of the building, plant, installation, or facility alleged to be in violation. A copy of the notice shall be mailed to the

Administrator of the Environmental Protection Agency, the Regional Administrator of the Environmental Protection Agency for the region in which the violation is alleged to have occurred, and the chief administrative officer of the solid waste management agency for the State in which the violation is alleged to have occurred. If the alleged violator is a corporation, a copy of the notice shall also be mailed to the registered agent, if any, of that corporation in the State in which such violation is alleged to have occurred.

(2) If the alleged violator is a State or local agency, service of notice shall be accomplished by registered mail, return receipt requested, addressed to, or by personal service upon, the head of that agency. A copy of the notice shall be mailed to the chief administrator of the solid waste management agency for the State in which the violation is alleged to have occurred, the Administrator of the Environmental Protection Agency, and the Regional Administrator of the Environmental Protection Agency for the region in which the violation is alleged to have occurred.

(3) If the alleged violator is a Federal agency, service of notice shall be accomplished by registered mail, return receipt requested, addressed to, or by personal service upon, the head of the agency. A copy of the notice shall be mailed to the Administrator of the Environmental Protection Agency, the Regional Administrator of the Environmental Protection Agency for the region in which the violation is alleged to have occurred, the Attorney General of the United States, and the chief administrative officer of the solid waste management agency for the State in which the violation is alleged to have occurred.

(b) Service of notice of intent to file suit under subsection 7002(a)(2) of the Act shall be accomplished by registered mail, return receipt requested, addressed to, or by personal service upon, the Administrator, Environmental Protection Agency, Washington, DC 20460. A copy of the notice shall be mailed to the Attorney General of the United States.

(c) Notice given in accordance with the provisions of this part shall be

considered to have been served on the date of receipt. If service was acomplished by mail, the date of receipt will be considered to be the date noted on the return receipt card.

§ 254.3 Contents of notice.

(a) Violation of permit, standard, regulation, condition, requirement, or order. Notice regarding an alleged violation of a permit, standard, regulation, condition, requirement, or order which has become effective under this Act shall include sufficient information to permit the recipient to identify the specific permit, standard, regulation, condition, requirement, or order which has allegedly been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the date or dates of the violation, and the full name, address, and telephone number of the person giving notice.

(b) Failure to act. Notice regarding an alleged failure of the Administrator to perform an act or duty which is not discretionary under the Act shall identify the provisions of the Act which require such act or create such duty, shall describe with reasonable specificity the action taken or not taken by the Administrator which is claimed to constitute a failure to perform the act or duty, and shall state the full name, address, and telephone number of the person giving the notice.

(c) Identification of counsel. The notice shall state the name, address, and telephone number of the legal counsel, if any, representing the person giving the notice.

§ 255.1 Scope and purpose.

(a) These guidelines are applicable to policies, procedures, and criteria for the identification of those areas which have common solid waste management problems and which are appropriate units for planning regional solid waste management services pursuant to section 4002(a) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (the Act). The guidelines also define and guide the identification of which functions will be carried out by which agencies pursuant to section 4006 of the Act.

(b) The purposes of these guidelines are to (1) provide useful criteria for selecting the regions and agencies to be identified pursuant to section 4006 of the Act and (2) provide guidance for conducting the process which will result in formal identification of those regions and agencies.