PUBLIC LAW 102-240—DEC. 18, 1991 105 STAT. 1989 recommendations on the use of such asphalt to those States which indicate an interest in the use of such asphalt. (2) ENCOURAGEMENT OF USE. —The Secretary should encourage the use of recycled materials determined to be appropriate by the studies pursuant to subsection 0^) in federally assisted highway projects. Procuring agencies shall comply with all applicable guidelines or regulations issued by the Administrator of the Environmental Protection Agency. (d) USE OF ASPHALT PAVEMENT CONTAINING RECYCLED RUBBER.— (1) STATE CERTIFICATION.—Beginning on January 1, 1995, and annually thereafter, each State shall certify to the Secretary that such State has satisfied the minimum utilization requirement for asphalt pavement containing recycled rubber established by this section. The minimum utilization requirement for asphalt pavement containing recycled rubber as a percentage of the total tons of asphalt laid in such State and financed in whole or part by any assistance pursuant to title 23, United States Code, shall be— (A) 5 percent for the year 1994; (B) 10 percent for the year 1995; (C) 15 percent for the year 1996; and (D) 20 percent for the year 1997 and each year thereafter. (2) OTHER MATERIALS. —Any recycled material or materials determined to be appropriate by the studies under subsection (b) may be substituted for recycled rubber under the minimum utilization requirement of paragraph (1) up to 5 percent. (3) INCREASE.— The Secretary may increase the minimum utilization requirement of paragraph (1) for, asphalt pavement containing recycled rubber to be used in federally assisted highway projects to the extent it is technologically and economically feasible to do so and if an increase is appropriate to assure markets for the reuse and recycling of scrap tires. The minimum utilization requirement for asphalt pavement containing recycled rubber may not be met by any use or technique found to be unsuitable for use in highway projects by the studies under subsection (b). (4) PENALTY.—The Secretary shall withhold from any State that fails to make a certification under paragraph (1) for any fiscal year, a percentage of the apportionments under section 104 (other than subsection 03)(5)(A)) of title 23, United States Code, that would otherwise be apportioned to such State for such fiscal year under such section equal to the percentage utilization requirement established by paragraph (1) for such fiscal year. (5) SECRETARIAL WAIVER.—The Secretary may set aside the provisions of this subsection for any 3-year period on a determination, made in concurrence with the Administrator of the Environmental Protection Agency with respect to subparagraphs (A) and (B) of this paragraph, that there is reliable evidence indicating— (A) that manufacture, application, or use of asphalt pavement containing recycled rubber substantially increases the threat to human health or the environment as compared to the threats associated with conventional pavement; (B) that asphalt pavement containing recycled rubber cannot be recycled to substantially the same degree as conventional pavement; or
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