[Federal Register: May 14, 2008 (Volume 73, Number 94)]
[Rules and Regulations]
[Page 27927-27956]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my08-17]
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Part III
Department of Agriculture
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Office of Energy Policy and New Uses
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7 CFR Part 2902
Designation of Biobased Items for Federal Procurement; Final Rule
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DEPARTMENT OF AGRICULTURE
Office of Energy Policy and New Uses
7 CFR Part 2902
RIN 0503-AA30
Designation of Biobased Items for Federal Procurement
AGENCY: Office of Energy Policy and New Uses, USDA.
ACTION: Final Rule.
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SUMMARY: The U.S. Department of Agriculture (USDA) is amending the
guidelines for designating biobased products for Federal procurement,
to add nine sections to designate items, including subcategories,
within which biobased products will be afforded Federal procurement
preference. USDA also is establishing minimum biobased content for each
of these items and subcategories.
In addition, USDA is amending the guidelines by providing
exemptions to the Department of Defense and the National Aeronautic and
Space Administration from the preferred procurement requirements. USDA
is also making minor technical amendments to several sections of the
guidelines to update information on the applicable Web site citation
and to provide additional information on products that may overlap with
products designated for preferred procurement under the U.S.
Environmental Protection Agency's Comprehensive Procurement Guideline
for Products Containing Recovered Materials.
DATES: This rule is effective June 13, 2008.
FOR FURTHER INFORMATION CONTACT: Marvin Duncan, USDA, Office of the
Chief Economist, Office of Energy Policy and New Uses, Room 4059, South
Building, 1400 Independence Avenue, SW., MS-3815 Washington, DC 20250-
3815; e-mail: mduncan@oce.usda.gov; phone (202) 401-0461. Information
regarding the Federal Procurement of Biobased Products (one part of the
BioPreferred Program) is available on the Internet at http://
www.biopreferred.gov.
SUPPLEMENTARY INFORMATION:
The information presented in this preamble is organized as follows:
I. Authority
II. Background
III. Summary of Changes
IV. Discussion of Comments
V. Regulatory Information
A. Executive Order 12866: Regulatory Planning and Review
B. Regulatory Flexibility Act (RFA)
C. Executive Order 12630: Governmental Actions and Interference
With Constitutionally Protected Property Rights
D. Executive Order 12988: Civil Justice Reform
E. Executive Order 13132: Federalism
F. Unfunded Mandates Reform Act of 1995
G. Executive Order 12372: Intergovernmental Review of Federal
Programs
H. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
I. Paperwork Reduction Act
J. Government Paperwork Elimination Act Compliance
I. Authority
These items, including their subcategories, are designated under
the authority of section 9002 of the Farm Security and Rural Investment
Act of 2002 (FSRIA), 7 U.S.C. 8102 (referred to in this document as
``section 9002'').
II. Background
As part of the Federal Procurement of Biobased Products, USDA
published on August 17, 2006, two proposed rules in the Federal
Register (FR) for the purposes of designating a total of 20 items for
the preferred procurement of biobased products by Federal agencies
(referred hereafter in this FR notice as the ``preferred procurement
program''). One of the proposed rules, RIN 0503-AA30, can be found at
71 FR 47566. The other proposed rule, RIN 0503-AA31, can be found at 71
FR 47590. This FR notice addresses the RIN 0503-AA30 proposed rule. The
other proposed rule is addressed in a separate FR notice. These two
rulemakings are referred to in the preamble and on the BioPreferred Web
site as Round 2 (RIN 0503-AA30) and Round 3 (RIN 0503-AA31).
The Round 2 proposed rule proposed designating the following items
for the preferred procurement program: Adhesive and mastic removers;
plastic insulating foam for residential and commercial construction;
\1\ hand cleaners and sanitizers; composite panels; fluid-filled
transformers; disposable containers; \2\ fertilizers; metalworking
fluids; \3\ sorbents; and graffiti and grease remover products.
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\1\ At proposal, this item was identified as ``insulating foam
for wall construction.'' Based on comments received, and as
explained in this preamble, USDA has renamed this item as ``plastic
insulating foam for residential and commercial construction.''
\2\ At proposal, this item was identified as ``biodegradable
containers.'' Based on comments received, and as explained in this
preamble, USDA has renamed this item as ``disposable containers.''
\3\ Based on comments received, and on additional data obtained,
USDA has combined the proposed ``metalworking fluids'' item with the
``cutting, drilling, and tapping oils'' item that was proposed for
designation on October 11, 2006 (71 FR 59862). The combined item is
designated as ``metalworking fluids'' and is included in the Round 4
final rulemaking.
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Today's final rule designates the following nine items, including
subcategories, within which biobased products will be afforded Federal
procurement preference: Adhesive and mastic removers; plastic
insulating foam for residential and commercial construction; hand
cleaners and sanitizers, including hand cleaners and hand sanitizers as
subcategories; composite panels, including plastic lumber composite
panels, acoustical composite panels, interior panels, structural
interior panels, and structural wall panels as subcategories; fluid-
filled transformers, including synthetic ester-based transformer fluids
and vegetable oil-based transformer fluids as subcategories; disposable
containers; fertilizers; sorbents; and graffiti and grease removers.
USDA has determined that each of these items meets the necessary
statutory requirements; that they are being produced with biobased
products; and that their procurement will carry out the following
objectives of section 9002: To improve demand for biobased products; to
spur development of the industrial base through value-added
agricultural processing and manufacturing in rural communities; and to
enhance the Nation's energy security by substituting biobased products
for products derived from imported oil and natural gas.
When USDA designates by rulemaking an item (a generic grouping of
products) for preferred procurement under the BioPreferred Program,
manufacturers of all products under the umbrella of that item that meet
the requirements to qualify for preferred procurement can claim that
status for their products. To qualify for preferred procurement, a
product must be within a designated item and must contain at least the
minimum biobased content established for the designated item. When the
designation of specific items is finalized, USDA will invite the
manufacturers of these qualifying products to post information on the
product, contacts, and performance testing on its BioPreferred Web
site, http://www.biopreferred.gov. Procuring agencies will be able to
utilize this Web site as one tool to determine the availability of
qualifying biobased products under a designated item. Once USDA
designates an item, procuring agencies are required generally to
purchase biobased products within these designated items, including
their
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subcategories, where the purchase price of the procurement item exceeds
$10,000 or where the quantity of such items or of functionally
equivalent items purchased over the preceding fiscal year equaled
$10,000 or more.
Subcategorization. Most of the items USDA is considering for
designation for preferred procurement cover a wide range of products.
For some items, there are groups of products within the item that meet
different markets and uses and/or different performance specifications.
For example, within the item ``hand cleaners and sanitizers,'' some
products are required to meet performance specifications for
sanitizing, while other products do not need to meet these
specifications. Where such subgroups, or subcategories, exist, USDA
intends to create subcategories. Thus, for example, for the item ``hand
cleaners and sanitizers,'' USDA has determined it is reasonable to
create a ``hand cleaner'' subcategory and a ``hand sanitizer''
subcategory. Sanitizing specifications would be applicable to the
latter subcategory, but not the former. In sum, USDA looks at the
products within each item to evaluate whether there are groups of
products within the item that meet different performance specifications
and, where USDA finds this type of difference, it intends to create
subcategories.
For some items, however, USDA may not have sufficient information
at the time of proposal to create subcategories within an item. For
example, USDA may know that there are different performance
specifications that de-icing products are required to meet, but it has
only information on one type of de-icing product. In such instances,
USDA may either designate the item without creating subcategories
(i.e., defer the creation of subcategories) or designate one
subcategory and defer designation of other subcategories within the
item until additional information is obtained on products within these
other subcategories.
Within today's rulemaking, USDA has created subcategories within
three items. These items are: Hand cleaners and sanitizers (i.e., hand
cleaners, hand sanitizers); composite panels (i.e., plastic lumber
composite panels, acoustical composite panels, interior panels,
structural interior panels, and structural wall panels); and fluid-
filled transformers (i.e., synthetic ester-based fluids and vegetable
oil-based fluids).
Minimum Biobased Contents. The minimum biobased contents being
established with today's rulemaking are based on products for which
USDA has biobased content test data. In addition to considering the
biobased content test data for each item, USDA also considers other
factors when establishing the minimum biobased content. These other
factors include: Public comments received on the proposed minimum
biobased contents; product performance information to justify the
inclusion of products at lower levels of biobased content; and the
range, groupings, and breaks in the biobased content test data array.
Consideration of this information allows USDA to establish minimum
biobased contents on a broad set of factors to assist the Federal
procurement community in its decision to purchase biobased products.
USDA makes every effort to obtain biobased content test data on
multiple products within each item. For most designated items, USDA has
biobased content test data on more than one product within a designated
item. However, in some cases, USDA has been able to obtain biobased
content data for a single product within a designated item. As USDA
obtains additional data on the biobased contents for products within
these nine designated items and their subcategories, USDA will evaluate
whether the minimum biobased content for a designated item or
subcategory will be revised.
USDA anticipates that the minimum biobased content of an item or
subcategory that is based on a single product is more likely to change
as additional products in those items and subcategories are identified
and tested. In today's rulemaking, the synthetic ester-based
subcategory under the fluid-filled transformers designated item and the
acoustical composite panels subcategory under the composite panels
designated item are based on a single tested product.
For all items and subcategories where additional information
indicates that it is appropriate to revise a minimum biobased content
established under today's rulemaking, USDA will propose the change in a
notice in the Federal Register to allow public comment on the proposed
revised minimum biobased content. USDA will then consider the public
comments and issue a final rulemaking on the minimum biobased content.
Biodegradability. Many of the products within items being
designated for the preferred procurement program are designed to be
disposed of after a single use and/or used in environmentally sensitive
applications. USDA believes that biodegradability is an important
feature that should be considered when purchasing, using, and disposing
of these products.
In simple terms, biodegradability measures the ability of
microorganisms present in the disposal environment to completely
consume the biobased carbon product within a reasonable time frame and
in the specified environment.
Composting is one such environment under which biodegradability
occurs. In that composting environment, the explanation of the
environment, the degree of microbial utilization (biodegradation), and
the time frame within which it occurs are specified through established
standards. Composting is but one environment under which
biodegradability occurs. For example, non-floating biodegradable
plastics can also biodegrade in a marine environment.
For some designated items and subcategories, USDA is requiring
biodegradability as a prerequisite for receiving preferred procurement
status under the BioPreferred Program. For most items and
subcategories, however, USDA has decided not to require
biodegradability as a prerequisite for receiving preferred procurement
status. For products within a designated item for which USDA will
require biodegradability, USDA will specify the appropriate ASTM
standards.
USDA believes that the relationship between the performance and the
biodegradability of products within an item (or subcategory) must be
considered before biodegradability is included as a prerequisite for a
designated item. For some designated items, product performance is the
critical factor in a purchaser's decision as to which product to
purchase. Within other designated items, especially those designed for
one-time use, disposal considerations may be equally important as
performance considerations.
Where USDA judges product performance to be the key decision-making
factor for purchasers, USDA will not require biodegradability as a
prerequisite for designation of items to participation in the preferred
procurement program. In those cases where disposal considerations are
believed to be as important as performance, however, USDA will require
biodegradability for products within the designated item (or
subcategory) if there are established biodegradability standards.
In this rulemaking, products that fall within the disposable
containers designated item are required to meet biodegradability
standards to receive preferred procurement under the BioPreferred
Program. For the remaining items in this rulemaking, USDA believes that
the product performance
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considerations outweigh biodegradability. USDA does, however, encourage
procuring agencies to purchase biodegradable products in any case where
they meet the agencies' performance needs.
USDA will continue to gather additional information on the
relationship between performance and biodegradability of products
within designated items and may add biodegradability as a prerequisite
for other items at a later date. USDA will also make information
regarding biodegradability of items available on the BioPreferred Web
site.
Preference compliance date. Because USDA has identified only one
manufacturer of products within the synthetic ester-based fluid-filled
transformers subcategory, the preference compliance date is deferred
until USDA identifies two or more manufacturers of products in this
subcategory. When it identifies two or more manufacturers, USDA will
publish a document in the Federal Register announcing that Federal
agencies will have one year from the date of publication of that
announcement to give procurement preference to biobased synthetic
ester-based fluid-filled transformers.
USDA notes that although only one product from the acoustical
composite panels subcategory has been tested for biobased content, nine
manufacturers of products in this subcategory have been identified.
Thus, USDA is not deferring the preference compliance date for this
subcategory.
Overlap with EPA's Comprehensive Procurement Guideline program for
recovered content products. Some of the products that are biobased
items designated for preferred procurement may also be items the
Environmental Protection Agency (EPA) has designated under the EPA's
Comprehensive Procurement Guideline (CPG) for Products Containing
Recovered Materials. Where that occurs, an EPA-designated recovered
content product (also known as ``recycled content products'' or ``EPA-
designated products'') has priority in Federal procurement over the
qualifying biobased product as identified in 7 CFR 2902.2. In
situations where it believes there may be an overlap, USDA is asking
manufacturers of qualifying biobased products to provide additional
product and performance information to Federal agencies to assist them
in determining whether the biobased products in question are, or are
not, the same products for the same uses as the recovered content
products. As this information becomes available, USDA will place it on
the BioPreferred Web site with its catalog of qualifying biobased
products.
In cases where USDA believes an overlap with EPA-designated
recovered content products may occur, manufacturers are being asked to
indicate the various suggested uses of their product and the
performance standards against which a particular product has been
tested. In addition, depending on the type of biobased product,
manufacturers are being asked to provide other types of information,
such as whether the product contains petroleum-based components and
whether the product contains recovered materials. Federal agencies may
also ask manufacturers for information on a product's biobased content
and its profile against environmental and health measures and life-
cycle costs (the Building for Environmental and Economic Sustainability
(BEES) analysis or ASTM Standard D7075 for evaluating and reporting on
environmental performance of biobased products). Such information will
permit agencies to determine whether or not an overlap occurs.
Section 6002 of RCRA requires a procuring agency procuring an item
designated by EPA generally to procure such items composed of the
highest percentage of recovered materials content practicable. However,
a procuring agency may decide not to procure such an item based on a
determination that the item fails to meet the reasonable performance
standards or specifications of the procuring agency. An item with
recovered materials content may not meet reasonable performance
standards or specifications, for example, if the use of the item with
recovered materials content would jeopardize the intended end use of
the item.
Where a biobased item is used for the same purposes and to meet the
same Federal agency performance requirements as an EPA-designated
recovered content product, the Federal agency must purchase the
recovered content product. For example, if a biobased hydraulic fluid
is to be used as a fluid in hydraulic systems and because ``lubricating
oils containing re-refined oil'' has already been designated by EPA for
that purpose, then the Federal agency must purchase the EPA-designated
recovered content product, ``lubricating oils containing re-refined
oil,'' assuming such oil is available. If, on the other hand, that
biobased hydraulic fluid is to be used to address a Federal agency's
certain environmental or health performance requirements that the EPA-
designated recovered content product would not meet, then the biobased
product should be given preference, subject to cost, availability, and
performance.
This final rule designates five items for preferred procurement for
which there may be overlap with EPA-designated recovered content
products. These items are: (1) Plastic insulating foam for residential
and commercial construction, (2) composite panels, (3) disposable
containers, (4) sorbents, and (5) fertilizer. Depending on how they are
to be used, qualifying biobased products under these five items may
overlap, respectively, with building insulation; laminated paperboard
and structural fiberboard, shower and restroom dividers, or signage;
paper and paper products; sorbents; and fertilizer made from recovered
organic material. EPA provides recovered materials content
recommendations for these five recovered content products in various
Recovered Materials Advisory Notices (RMAN), including RMAN I, RMAN II,
RMAN III, and RMAN V. The RMAN recommendations for each of these CPG
products can be found by accessing EPA's Web site http://www.epa.gov/
epaoswer/non-hw/procure/products.htm and then clicking on the
appropriate product name.
Future designations. In making future designations, USDA will
continue to conduct market searches to identify manufacturers of
biobased products within designated items. USDA will then contact the
identified manufacturers to solicit samples of their products for
voluntary submission for biobased content testing and for the BEES
analytical tool. Based on these results, USDA will then propose new
items for designation for preferred procurement.
As stated in the preamble to the first six items designated for
preferred procurement (71 FR 13686, March 16, 2006), USDA plans to
identify approximately 10 items in each future rulemaking. USDA has
developed a preliminary list of items for future designation. This list
is available on the BioPreferred Web site. While this list presents an
initial prioritization of items for designation, USDA cannot identify
with any certainty which items will be presented in each of the future
rulemakings. Items may be added or dropped and the information
necessary to designate an item may take more time to obtain than an
item lower on the prioritization list.
Exemptions. In an earlier item designation rule (71 FR 13686), USDA
created exemptions from the preferred procurement program's
requirements for procurements involving combat or combat-related
missions and for
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spacecraft systems and launch support equipment. Since publication of
that final rule in the Federal Register, and in response to comments
from the Department of Defense (DoD) and NASA (see General Comments,
below), USDA has decided to create ``blanket'' exemptions for all items
used in products or systems designed or procured for combat or combat-
related missions and for spacecraft systems and launch support
equipment, which will apply to all items designated for the procurement
preference. Accordingly, in order to avoid repetition, this final rule
removes all the exemption references contained in individual item
designations and adds the identical language, as a blanket exemption,
to the Guidelines, in subpart A.
III. Summary of Changes
As the result of comments received on the proposed rule (see
Section IV), USDA made changes to the rule, which are summarized below.
Items combined. The proposed ``metalworking fluids'' item has been
combined with the ``cutting, drilling, and tapping oils'' item that was
proposed for designation on October 11, 2006 (71 FR 59862). The
combined item is now known as ``metalworking fluids'' and includes
three subcategories: straight oils; high performance soluble, semi-
synthetic, and synthetic metalworking fluids; and general purpose
soluble, semi-synthetic, and synthetic metalworking fluids. The
``metalworking fluids'' item is now included in the Round 4 final
rulemaking replacing the proposed ``cutting, drilling, and tapping
oils'' item.
Item names. The names for two of the remaining nine items were
revised. ``Insulating foam for wall construction'' is now ``plastic
insulating foam for residential and commercial construction.''
``Biodegradable containers'' is now ``disposable containers.''
Item definitions. The definitions for six of the remaining nine
items were modified to varying degrees. These six items are: Adhesive
and mastic removers; plastic insulating foam for residential and
commercial construction; hand cleaners and sanitizers; composite
panels; disposable containers; and fertilizers. Some definitions were
modified and/or added in order to address the addition of subcategories
(as discussed in the following paragraph).
Subcategories. Subcategories were created for three items to
reflect the different use applications where information was available.
Hand cleaners and sanitizers were subcategorized into (1) hand cleaners
and (2) hand sanitizers. Composite panels were subcategorized into (1)
plastic lumber composite panels, (2) acoustical composite panels, (3)
interior panels, (4) structural interior panels, and (5) structural
wall panels. Fluid-filled transformers were subcategorized into (1)
synthetic ester-based fluid-filled transformers and (2) vegetable oil-
based fluid-filled transformers.
Minimum biobased contents. Several of the proposed minimum biobased
contents for the designated items have changed for the final rule in
response to public comments and in consideration of available product
performance information. As a result of the comments received regarding
the proposed minimum biobased contents and the availability of
additional biobased content tests for several items, USDA re-evaluated
the proposed minimum biobased contents of all of the items.
Items for which the minimum biobased content was changed from the
proposed level are presented here and the rationale for the changes is
discussed in the section of this preamble presenting the item-specific
comments and responses.
For plastic insulating foam, the proposed minimum biobased content
of 8 percent was changed to 7 percent.
For the proposed hand cleaner item the proposed minimum biobased
content of 18 percent was changed to 64 percent for the hand cleaners
subcategory and 73 percent for the hand sanitizers subcategory.
For the proposed composite panels item the proposed minimum
biobased content of 26 percent was changed for each of the newly
established subcategories. In this final rule, minimum biobased
contents were set for each subcategory, as follows: Plastic lumber
composite panels--23 percent, acoustical composite panels--37 percent,
interior panels--55 percent, structural interior panels--89 percent,
and structural wall panels--94 percent.
For the proposed fluid-filled transformers item the proposed
minimum biobased content of 66 percent was retained for the synthetic
ester-based subcategory and the minimum biobased content for the
vegetable oil-based subcategory was set at 95 percent.
For the proposed biodegradable containers item (now disposable
containers), the proposed minimum biobased content of 96 percent was
changed to 72 percent.
For sorbents, the proposed minimum biobased content of 52 percent
was changed to 89 percent.
For graffiti and grease removers, the proposed minimum biobased
content of 21 percent was changed to 34 percent.
Preference compliance date. For the synthetic ester-based fluid-
filled transformers subcategory, the preference compliance date is
deferred until USDA identifies two or more manufacturers in this
subcategory. When it identifies two or more manufacturers in this
subcategory, USDA will publish a document in the Federal Register
announcing that Federal agencies will have one year from the date of
publication of that announcement to give procurement preference to
biobased synthetic ester-based fluid-filled transformers.
Overlap with EPA CPG products. For composite panels, potential
overlap with EPA CPG products was added to the final rule. Then, for
all items that may overlap with EPA CPG products (plastic insulating
foam for residential and commercial construction; composite panels;
disposable containers; sorbents; and fertilizer), a note was added to
facilitate finding information on the EPA CPG products.
Biodegradability. For disposable containers, a biodegradability
requirement was added.
Exemptions. Exemptions from the preferred procurement requirements
were added for all items, including their subcategories, used in
certain applications within DoD and NASA. For DoD, exemptions were
provided for ``products or systems designed or procured for combat or
combat-related missions.'' For NASA, exemptions were provided for
``spacecraft systems and launch support equipment.'' These exemptions
were added in the Guidelines for the procurement program (subpart A)
rather than under each item designation. At proposal, this exemption
was proposed only for the fluid filled transformer item. Additional
discussion of this decision is presented in the responses to comments
later in this Preamble.
IV. Discussion of Comments
USDA solicited comments on the proposed rule for 60 days ending on
October 16, 2006. USDA received comments from 29 commenters by that
date. The comments were from individual manufacturers, trade
organizations, private groups, and Federal agencies.
The comments contained in this Federal Register (FR) notice address
general and specific comments related to Round 2 items. In addition to
the
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information provided in the responses to public comments presented in
this preamble, USDA has prepared a technical support document titled
``Technical Support for Final Rule--Round 2 Designated Items,'' which
contains documentation of USDA's efforts to research and respond to
public comments. The technical support document is available on the
BioPreferred Web site. The technical support document can be located by
clicking on the Proposed and Final Regulations link on the left side of
the BioPreferred Web site's home page (http://www.biopreferred.gov).
Click on Supporting Documentation under Round 2 Designation under Final
Rules. This will bring you to the link to the technical support
document.
Several of the commenters expressed appreciation for USDA's effort
in designating items for preferred procurement. While these comments
are not presented within this preamble, USDA thanks the commenters for
such comments.
Following the comments and responses, USDA discusses the amendments
being made to various sections of 7 CFR part 2902 regarding reference
to the Web site and the provision of additional information on products
that may overlap with products designated for preferred procurement
under EPA's CPG program.
General Comments
Reporting of Biobased Purchases
Comment: One commenter suggested that USDA consider the method that
is least burdensome to Federal agencies when the agencies are required,
per Executive Order 13101, to estimate their purchases of products
placed on the USDA Biobased Products List and report on their estimated
purchases of such products to the Secretary of Agriculture.
Response: Under FSRIA, the Office of Federal Procurement Policy
(OFPP) reports to Congress biennially about Federal agency progress in
implementing the section 9002 purchasing requirements. Under E.O.
13423, the Federal Environmental Executive reports to the President
biennially about Federal agency progress in implementing the purchasing
requirements of the E.O., including the purchase of biobased products.
OFPP and the Office of the Federal Environmental Executive (OFEE)
jointly send a data questionnaire to the agencies to gather information
for these reports. As a member of the inter-agency Reporting Workgroup
that makes recommendations to OFPP and OFEE about reporting mechanisms,
USDA will work with the other members to recommend the least burdensome
mechanisms for tracking and reporting on purchases of the designated
biobased items.
Warranties
Comment: Two commenters expressed concern about a biobased
product's effects on warranties. One commenter stated that USDA should
consider creating a fact sheet about warranty myths and realities,
including the type of questions buyers should ask Original Equipment
Manufacturers (OEMs) and contractors to make sure that the warranty
issue is real and not just an excuse to avoid purchasing a biobased
product.
The second commenter recommended that USDA fully address the effect
of biobased product usage on equipment warranties (i.e., such use as
might void equipment warranties) prior to final item designation.
Response: USDA shares the commenters' concerns about the potential
effect of biobased products on warranties. As noted in the response to
a similar comment on the first designated item rule (see 71 FR 13702),
USDA is working with manufacturers on the issue of maintenance
warranties as time and resources allow. USDA is contacting
manufacturers, industry associations, and service professionals to
request information about warranty issues. About 200 different contacts
have been made, but the results have been inconclusive. Many of the
contacts have been reluctant to discuss warranty issues related to
either their products or to biobased components. Additional information
on the results of USDA's information gathering efforts are available on
the BioPreferred Web site.
At this time, USDA does not have sufficient information to
determine whether or not the manufacturers of biobased products will
state that the use of these products will void maintenance warranties.
This does not mean that the use of such products will void warranties,
only that USDA does not currently have such information. As additional
information becomes available on warranties, USDA will make such
information available on the BioPreferred Web site.
Because it is difficult for USDA to fully address the warranty
concern for each product within each item designated for preferred
procurement, USDA continues to encourage manufacturers of biobased
products to test their products against all relevant standards,
including those that would affect warranties, and to work with OEMs to
ensure that the biobased products will not void maintenance warranties
when used. Whenever manufacturers of biobased products find that
existing performance standards for maintenance warranties are not
relevant or appropriate for biobased products, USDA is willing to
assist them in working with the appropriate OEMs to develop tests that
are relevant and appropriate for the end uses in which biobased
products are intended. If, in spite of these efforts, there is
insufficient information regarding the performance of a biobased
product and its effect on equipment maintenance warranties, USDA notes
that the procurement agent would not be required to buy such a product.
Industry and Agency Meeting/Forum
Comment: One commenter suggested that USDA consider sponsoring an
industry and government forum or meeting to discuss program
implementation issues. Topics identified by the commenter included how
best to identify and communicate performance standard information and
warranty issues associated with biobased products and original
equipment manufacturers.
Response: USDA agrees with the commenter that a forum-type meeting
to address implementation issues, including those identified by the
commenter, has merit and will consider hosting such a forum as time and
resources allow.
Supporting Documentation--Performance Standards
Comment: Two commenters stated that the background information for
the proposed designated items did not distinguish between test methods
and performance standards. One commenter stated that the entry in the
column ``Standard Title'' under Performance Standards (as found in the
Supporting Documentation on the BioPreferred Web site) does not appear
to have much to do with performance. The commenter pointed, as an
example, to the OSHA Hazard Communication Standard as not providing
information as to whether the biobased adhesive or grease remover will
work as intended. The second commenter stated that most of the
``performance standards'' listed by USDA are not really performance
standards but are rather ``test methods.'' This commenter noted that
while some test methods listed are relevant to meeting performance
standards for some applications, others are not. The second commenter
recommended that test methods be differentiated from performance
standards.
[[Page 27933]]
The second commenter also stated that end users are well aware of
these performance standards because the operating manuals for their
equipment will list the standards and that end-users will want to know
from a manufacturer if its product meets that performance standard. For
products that do not have recognized performance standards, such as
glass cleaners, the commenter stated that users may have to try a
sample to determine if the product meets their needs. The commenter
also stated that in other cases, such as carpets or insulation,
specifications for purchase will be set by designers, architects, and/
or engineers based on a specific project's needs, and manufacturers
would have to show the buyers that they can meet the specification. For
these reasons, the commenter recommended that, rather than providing a
list of test methods, USDA should offer manufacturers the opportunity
to provide as much performance data as possible on the BioPreferred Web
site when they list their products. By doing so, the commenter
continued, information will be provided to potential buyers and users
so that they can compare the performance data with the particular
performance requirements they need for the product.
Response: USDA agrees with the commenters that many of the
standards listed under ``Standard Title'' in the background information
are test methods and not performance standards. USDA further agrees
that such distinctions should be made in the background document. USDA
believes that it is necessary to continue to report both test methods
and performance standards because it is very important that consistent
test methods are used when measuring the performance of a product. USDA
will, therefore, update the background information on the BioPreferred
Web site to reflect the distinction between test methods and
performance standards. Further, as additional information on
performance standards is obtained, USDA will update the BioPreferred
Web site to include such information. The results of the effort to
distinguish between test methods and performance standards for the
designated items in this final rule can be found in Chapter 1.0 of the
document ``Technical Support for Final Rule--Round 2 Designated
Items,'' which is available on the BioPreferred Web site.
USDA also agrees that manufacturers need to provide as much
information as possible on the performance of their products,
especially as measured against recognized performance standards. USDA
is working with manufacturers to make this information available by
posting on the BioPreferred Web site links to the manufacturer's Web
site for additional information on biobased product performance.
Reduced Greenhouse Gases
Comment: Three commenters recommended that USDA continue to
emphasize the potential of biobased products to reduce greenhouse gas
emissions as part of the preferred procurement program.
Response: USDA agrees with the commenters that the potential for
biobased products to reduce greenhouse gas emissions is an important
attribute of which purchasers and others need to be aware. USDA will
continue to identify this potential in preambles and in the background
information on the BioPreferred Web site. USDA welcomes the commenters,
and others, to provide USDA with ``cradle-to-grave'' studies that
demonstrate this potential attribute. USDA would then consider putting
such results on the BioPreferred Web site.
Biobased Materials--Prequalify
Comment: Three commenters recommended that USDA develop a program
for prequalifying the biobased material that will form the basis of
biobased products. The commenters point out that biobased products are
made from biobased materials. According to the commenters, testing and
qualifying biobased materials will greatly accelerate the designation
process for preferred procurement--if a product is made from a
prequalifed biobased material, it is then a simple matter for the
manufacturer of the bioproduct to provide information to USDA on its
biobased composition and, if verification of manufacturer supplied
compositional information is needed, the ASTM biobased content test can
always be conducted as needed.
The commenters also suggested making prequalified biobased
materials part of the ``U.S.D.A. Certified'' labeling program. When
part of the labeling program, manufacturers would be able, according to
the commenter, to contact biomaterial suppliers for information on the
performance and other characteristics to determine the most appropriate
biomaterials for their particular application. According to the
commenters, this would expedite the development of biobased products
consistent with the Congressional intent of FSRIA.
Response: USDA agrees that there is merit in the concept of
prequalifying biobased materials that are used to manufacture biobased
products for preferred procurement. However, as noted in a response to
public comments on the first six items designated for preferred
procurement (71 FR 13702), section 9002 of FSRIA requires USDA to
designated ``products'' for preferred procurement. Section 9001 of
FSRIA defines ``biobased products'' as ``a product determined by the
Secretary to be a commercial or industrial product (other than food or
feed) that is composed, in whole or in significant part, of biological
products or renewable domestic agricultural materials * * * or forestry
materials.'' Based on this definition, USDA does not believe it has the
authority to consider ``biobased material used in the manufacture of
biobased products'' to be ``products.'' USDA is, however, gathering
information on biobased intermediate feedstocks and developing a list
of these materials. USDA will provide this information on the
BioPreferred Web site. USDA also notes that NIST currently includes
soybeans, corn, wheat, rice, cotton, canola, potatoes, and wool as
feedstocks when conducting the BEES life cycle analysis for biobased
products.
USDA has considered the commenter's recommendation to make
prequalified biobased materials part of the ``U.S.D.A. Certified''
labeling program in developing the proposed rule for that program.
Recycled vs. Biobased Products
Comment: Three commenters agreed with USDA that additional
information should be sought first from manufacturers prior to
procurement decisions where recycled content and biobased materials
products are both being considered for the same application. Two of the
commenters went on to recommend that USDA's Preferential Procurement
Guidelines for Biobased Products be upgraded to include the proposal in
this rulemaking for handling the ``overlap'' between the recycled
content and biobased content programs.
Response: While USDA appreciates the commenters' suggestion on
revising the Guidelines to reflect the overlap potential between
biobased products and products with recycled content, USDA will
continue to discuss such overlap within each of the designated item
rulemakings on an item-by-item basis.
Mature Markets
Comment: Three commenters urged USDA to not exclude natural fiber
and other biobased products with mature markets in 1972. The commenters
felt
[[Page 27934]]
that by doing so petroleum plastic blends (such as in leaf collection
bags) would get an unfair advantage over entirely natural fiber
biobased products (e.g., a Kraft paper leaf collection bag made from
100 percent plant matter).
Response: USDA extensively addressed the issue of mature markets in
the final rule for the Guidelines for Designating Biobased Products for
Federal Procurement (70 FR 1792). In that notice, USDA explained the
rationale for excluding products that had mature markets in 1972 from
the preferred procurement program--``The intent of section 9002, as
described in the conference report accompanying FSRIA, is to stimulate
the production of new biobased products and to energize emerging
markets for those products. Given that, USDA finds that it is entirely
appropriate for the guidelines to exclude products having mature
markets from the program.'' (see 70 FR 1802). This was finalized in
paragraph 2902.5(c)(2). USDA reiterated its position in the final rule
for the first six items designated for preferred procurement and
explained further on its reasons for excluding mature market products
(see 71 FR 13701).
For the reasons stated in these two FR notices, the USDA will
continue to exclude mature market products as they are identified
within items designated for preferred procurement.
In addition, in its response to comments on the first six items
proposed for designation for preferred procurement, USDA stated: ``As
USDA designates additional items for preferred procurement, USDA will
make determinations of whether mature markets existed in 1972 and, if
so, identify those materials that do not qualify as biobased material.
Unless a material is specifically identified as a material not
qualifying as a biobased feedstock, such as cotton fiber has been for
bedding, bed linens, and towels, the material may be used in any
designated item and will be considered a qualifying biobased
feedstock.'' (see 71 FR 13702). None of the 20 items proposed for
preferred procurement in the two proposed rules were identified as
having mature markets for which preferred procurement would not be
given. Therefore, the specific example of Kraft paper leaf collection
bags made from 100 percent plant matter provided by the commenters
would qualify for preferred procurement under this program.
Sustainability Guidelines for Biopolymers
Comment: One commenter noted that biobased products are not
automatically better for the environment than the items they replace,
depending upon the way the feedstock is grown, how the product is
manufactured, and how the product is handled at the end of its life.
The commenter further noted that a group of non-government
organizations are working with companies interested in manufacturing
and using biobased products to develop sustainability guidelines for
biopolymers and urged the federal government to engage in this process
and consider how it can in future rulemakings encourage the biopolymer
industry to move toward truly sustainable products.
Response: USDA agrees with the commenter that biobased products are
not necessarily better for the environment than the items that they
replace. This emphasizes the need for life-cycle analyses (LCAs), which
is the type of information generated under the BEES analysis. USDA
welcomes additional information on biobased products, including aspects
concerning sustainability, and urges the commenter and the non-
governmental organizations to provide the results of their
sustainability guidelines to USDA and other Federal agencies. USDA will
then consider posting validated information on the BioPreferred Web
site as additional information available to Federal purchasing
agencies.
Life-Cycle Analysis (LCA)
Comment: One commenter commended USDA for considering LCAs and the
use of the BEES as a tool for LCA and urged USDA to be cautious in its
endorsement of Green Seal, stating that some Green Seal standards are
several years old and were not developed using a true consensus based
approach.
Response: USDA appreciates the commenter's recognition of the use
of BEES as a tool for LCA. With regard to Green Seal standards, it is
USDA's intent to provide information on all standards that are being
used for products within items being proposed for designation. The
identification of such standards, however, does not represent an
endorsement on the part of USDA of any standard, including any Green
Seal standard. Because the programs provide information that many
prospective purchasers of biobased products may find useful, however,
USDA will continue to identify and post information concerning these
programs on the BioPreferred Web site.
For the designated items in this final rule, USDA identified two
relevant Green Seal standards. These are GS-34, Cleaning/Degreasing
Agents, and GS-41, Hand Cleaners and Hand Soaps Used for Industrial and
Institutional Cleaners. These two GS standards are relevant,
respectively, to graffiti and grease removers and to hand cleaners and
sanitizers. These standards can be accessed through the Green Seal Web
site at http://www.greenseal.org/certification/standards.cfm
Leadership in Energy and Environmental Design (LEED)
Comment: One commenter requested that USDA remove references to the
LEED green building rating system in the final rule because, according
to the commenter, (1) the LEED system was not developed using an LCA,
(2) the organization that developed it (US Green Building Council)
recognizes that the rapidly renewable credit is flawed and is not
supportable, based on an LCA, and (3) there are other green building
rating systems (such as Green Globes, which is being examined by
several U.S. Federal agencies) that already incorporate aspects of
life-cycle assessment. However, if USDA retains the reference, the
commenter recommended that USDA indicate the lack of an LCA approach in
LEED, and that USGBC has proposed to its membership that the rapidly
renewable credit be removed.
The commenter further suggested that USDA discuss and incorporate
Green Globes into the rule, based on the fact that it already
incorporates aspects of LCA.
Response: USDA appreciates the information provided by the
commenter on the LEED. USDA's identification of the LEED rating system
does not represent an endorsement of LEED, but simply acknowledges its
existence and use. USDA will consider further clarification of LEED if
and when it is referenced in future rulemakings for the BioPreferred
Program, as well as considering mentioning Green Globes, where
appropriate.
Exemptions
Comment: One commenter requested that the rule reflect exemptions
for all items used in products and systems designed or procured for
combat or combat-related missions and that this exemption be extended
to all services and products contracted for combat or combat-related
missions. The commenter pointed out that USDA has stated that it is
inappropriate to apply the preferred procurement requirement unless the
DoD has documented that such products can meet the performance
requirements for such equipment and are available in sufficient supply
to meet domestic and overseas deployment
[[Page 27935]]
needs. According to the commenter, their experiences to date have
reinforced that it is not practical at this time to conduct the testing
and evaluation necessary for such performance documentation for all
products used in combat.
Response: USDA has discussed, at length, with DoD the need for
exempting from preferred procurement items whose products are used in
combat or combat-related situations. USDA has also had similar
discussions with NASA regarding products used in space and critical
mission areas. These discussions have included whether there is a need
for exemptions and, if so, whether exemptions should be on an item-by-
item basis or whether a ``blanket'' exemption should be implemented for
these two agencies. As a result of these discussions, USDA is exempting
from preferred procurement all items used in products or systems
designed or procured for combat or combat-related missions and for
spacecraft systems and launch support equipment. The exemption is
stated in the Guidelines (subpart A) rather than under each item
designation. USDA believes it is inappropriate to apply the biobased
purchasing requirement to DoD tactical equipment and NASA mission-
critical equipment at this time. However, USDA reserves the right to
withdraw such exemptions, on an item-by-item basis, as biobased
products are demonstrated to meet all of the performance requirements
of these applications.
Comment: One commenter stated that the proposed exemptions for
critical applications are unnecessary given the provisions of the
Guidelines, noting that no product, biobased or not, should be used in
any critical application if it does not meet performance requirements.
The commenter is concerned that proposing an exemption that limits the
use of biobased products to ``more conventional applications'' implies
that biobased products are inferior in their performance
characteristics to the incumbent product. According to the commenter,
not only is this not the case, but it sends the wrong message regarding
the potential benefits of and uses for biobased products.
Response: USDA agrees with the commenter that providing exemptions
could imply that biobased products are inferior to non-biobased
products. USDA can only emphasize that these exemptions are not
intended to convey such meaning. USDA points out, however, that the
statute does allow agencies the ability to not purchase a biobased
product if it does not meet applicable performance standards. Because
so many biobased products are in their infancy, more effort is required
on the part of their manufacturers to demonstrate that the biobased
products perform as well as their non-biobased counterparts, whether in
conventional or non-conventional applications.
USDA also agrees that all Federal agencies have the same ``off
ramps'' available to them in determining whether or not to purchase
biobased products within a designated item. USDA has received repeated
requests from both DoD and NASA for exemptions. DoD is particularly
concerned about the use of biobased products in combat or combat-
related situations and NASA about the use of any biobased product in
critical mission areas. USDA has reached agreement with these agencies
to provide ``blanket'' exemptions for both NASA and DoD. Providing this
blanket exemption will allow these agencies the flexibility to choose
how they utilize their resources in evaluating various biobased
products and determining which products meet their critical
requirements.
USDA recognizes that such blanket exemptions could discourage
manufacturers from developing biobased products for these two
``markets.'' However, if manufacturers of biobased products can
demonstrate to the satisfaction of these two agencies that biobased
products can meet all of their concerns, USDA would reconsider such
exemptions on an item-by-item basis.
Item Designations
Comment: Two commenters requested that USDA not designate items for
preferred procurement where the products within the item contain
nanoparticles because of the many outstanding public and environmental
health issues surrounding the use of nanotechnology. According to the
commenters, there are no manufacturing standards, labeling regulations,
or safety guidelines for nanoparticle use and the effect of
nanoparticles on health and the environment are not yet understood.
Response: At this time, the statute for designating biobased
products for preferred procurement does not address the issue of
products made with nanoparticles. Congress would need to change the
statute in order for USDA to consider it within the BioPreferred
program. Therefore, USDA does not address the issue in this rulemaking.
USDA points out that EPA is conducting several major activities
with respect to nanotechnology including, but not limited to,
initiating the development of a voluntary pilot program for the
evaluation of nanomaterials and reviewing nanomaterial new chemical
submissions in the Office of Pollution Prevention and Toxics. For
additional information on the work EPA is pursuing with regard to
nanomaterials, access the Web site http://www.epa.gov/oppt/nano/.
Environmental and Health information
Comment: One commenter stated that providing agencies with tables
summarizing BEES analyses does not satisfy the statutory requirement
that USDA provide agencies with information on the public health and
environmental benefits of biobased products. According to the
commenter, the summary tables included in the preamble to the proposed
products designation rule do not provide useful information to
agencies, because the information is not provided in the context of
comparisons with non-biobased products. The commenter, therefore,
recommended that USDA provide narrative information and comparative
reference points on the environmental and public health benefits of the
designated products by placing this information in the technical
background documents or in case studies on the BioPreferred Web site.
The commenter then provided examples of information that could help
agencies make a ``best value'' determination.
Another commenter provided a list of some of the benefits
associated with using soy in industrial products.
Response: The BEES analysis provides a factual review of
environmental and health effects of products. The results of the BEES
analysis allow the comparison of similar products that have undergone
the analysis. For example, one can compare the relative environmental
and health effects between two biobased disposable containers. In
addition, the BEES analysis provides information on the carbon cycle,
which is being acknowledged as an increasingly important environmental
effect. Thus, the BEES analysis provides important and relevant
information on the environmental and health effects of biobased
products.
USDA agrees with the commenter that providing additional
information on manufacturers' claims regarding the public health and
environmental effects of their biobased products on the BioPreferred
Web site is useful, and has begun posting such information. As more
information on the public health and environmental effects of biobased
products is obtained, USDA will continue to post such information. If
the
[[Page 27936]]
information is anecdotal, it will be so indicated.
USDA also agrees that quantitative, science-based, comparative
reference points on the environmental and public health benefits of the
designated products would be useful. USDA, therefore, encourages
procurement officials to request this information from manufacturers of
biobased products and from manufactures of nonbiobased products to
facilitate the comparison of products. Until then, BEES results for
both biobased and traditional products, covering a handful of proposed
and designated items, are available through the free BEES 4.0 tool
published by NIST in May 2007 (http://www.bfrl.nist.gov/oae/bees.html).
USDA thanks the other commenter for its information on using soy in
industrial products and will post such information, as appropriate, on
the BioPreferred Web site.
Purchasing Analysis
Comment: One commenter stated that biobased products should be
fully tested to determine if they meet performance specifications
before requiring Federal agency purchase. According to the commenter,
there are many products in the marketplace that do not work as
advertised. Because there are numerous industry and other recognized
standard-setting groups that are responsible for setting standards for
products used in various applications, the commenter felt that it would
be prudent for Federal agencies to purchase biobased products that have
been determined by an outside organization to meet minimal performance
standards.
Two commenters stated that USDA needs to make available information
on the availability, economic and technical feasibility, environmental
and public health benefits, and life-cycle costs for each of the
designated items and the name of each of the product's manufacturer in
order to enable Federal agencies to determine whether they are buying a
product that will perform as intended at a reasonable cost and to
prevent an incorrect assessment of a product's attributes, which may
led to unintended consequences.
One of the commenters recognized that to provide complete
information is a challenge given that a biobased product market is
still in its infancy. However, the commenter believes that it is ill-
advised to proceed with designating products for which ``information on
the availability, relative price, performance, and environmental and
public health benefits of individual products within each of these 10
items is not presented'' (71 FR 47568).
Response: In designating items for preferred procurement, USDA is
responsible for designating those items which are or can be produced
with biobased products and to provide, in part, information on their
performance. Further, USDA is responsible for considering the
technological feasibility of using products within such items. Finally,
the statute allows a Federal agency not to purchase a product if, in
part, it fails to meet the reasonable performance standards of the
procuring agency. USDA believes that its process for designating items
meets the intent and requirements of the authorizing statute and
results in items that generally meet performance standards applicable
to products within those items.
USDA does not believe it is reasonable, nor statutorily required,
to conduct full testing of every product within every item (or even the
full testing of a single product within every item) in order to list an
item for preferred procurement. To grant the commenter's request that
biobased products be fully tested would result in an essentially
insurmountable obstacle to implementing the program. USDA has improved
the process for making available information on products within items
proposed and promulgated for designation. USDA is continually working
to upgrade the amount and quality of such information, which can be
found on the BioPreferred Web site.
As stated in the final Federal Register notice for the first set of
designated items, USDA reached an agreement with manufacturers not to
publish their names in the Federal Register when designating items.
This agreement was reached to encourage manufacturers to submit
products for testing to support the designation of an item. Once an
item has been designated, the manufacturers of products within the
designated item may elect to post their names and other contact
information on the BioPreferred Web site.
USDA has linked the BioPreferred Web site to Defense
Standardization Program and GSA-related standards lists used as
guidance when procuring products, which can be accessed through the
``Selling to the Federal Government'' link on the BioPreferred Web
site. To access the DoD list, go to the BioPreferred Web site and click
on the ``Selling to Federal Government'' tab and look for the DoD
Specifications link. To access the GSA-related standards list, click on
the GSA Schedule Suppliers link under ``Selling to the Federal
Government.'' Once at the GSA Web site, search for ``Global Supply
Standards'' and then follow the appropriate links. Instructions on
accessing these lists from the BioPreferred Web site will also be
included in all future Federal Register notices for USDA's designated
item rules. Further, USDA also will invite and actively encourage
manufacturers of qualifying products within a designated item to post,
on USDA's password-protected Web site, performance standards by which a
qualifying product's performance has been evaluated.
Minimum Biobased Content
Four commenters felt that USDA was proposing minimum biobased
contents that were too low for many of the products. These, and other,
commenters also provided specific comments on the proposed minimum
biobased contents for specific items. Those specific comments are
addressed later in the preamble under Item Specific Comments. Here,
USDA is responding to the comments that more generally address the
procedure USDA uses in proposing minimum biobased contents.
Approach Used
Comment: Several commenters were concerned about the approach USDA
used to determine minimum biobased contents. One commenter recommended
that, rather than setting the threshold level below the lowest
percentage observed in the lowest end product in the survey, USDA
reward the top half or top two thirds of the respondents, at least
where the spread is more than 20 percentage points. Two other
commenters recommended that USDA consider a minimum threshold of 50
percent biobased content given that products with biobased contents
above 50 percent are available in all categories.
Response: In response to these public comments and ongoing
discussions with other Federal agencies, and because several additional
biobased content test results were obtained after proposal, USDA re-
evaluated the proposed minimum biobased contents for each of the
proposed items. In re-evaluating the minimum biobased contents, USDA
considered factors including the number of, and the distribution of,
the test data points as well as the product manufacturer's claims
related to performance, biodegradability, and range of applicability.
In those cases where all of the products' biobased contents were
within a narrow range and no data were available to distinguish
significant performance differences among the products, USDA set the
minimum biobased content at the level that would allow preferred
procurement for all of
[[Page 27937]]
the products for which data were available.
For items where the products' biobased contents showed a wider
range and included one or more significant breaks in the range, USDA
reviewed the product information to determine if there were performance
or applicability differences among the products that could be used for
creating subcategories based on the groups of products that have
similar biobased contents. For example, if the biobased contents of
half of the products within an item were in the 30 to 50 percent range
and the other half were in the 80 to 95 percent range, USDA considered
whether the product information supported the creation of two
subcategories. Information that was considered to be supportive of
subcategorization were claims of product features such as ``special
applications,'' ``high temperature applications,'' or ``single-use
versus multiple-use.'' In those cases where the biobased content and
other product information supported subcategorization, USDA has created
subcategories in this final rule.
In other cases, USDA has considered subcategorization for an item
based upon initial performance information, but USDA does not currently
have sufficient data to justify creating subcategories. Where that is
the case, USDA has generally set the minimum biobased content based on
the group of products with the higher biobased contents. For these
items, USDA will continue to gather data on products within the item
and will create subcategories in a future rulemaking if sufficient data
are obtained.
For some items, there was a significant range in the reported
biobased contents but the data points were evenly spread over the
entire range. In those cases, if there were no data to distinguish the
features of any grouping or subset of the products, USDA has generally
set the minimum biobased content based on the product with the lowest
biobased content in order to allow procuring agencies the widest
selection of products from which to select those that best meet their
needs. As additional product performance information becomes available
and as additional products within these items become available with
higher biobased contents, USDA will consider increasing the minimum
biobased content or creating subcategories where performance
characteristics or application use justify subcategorizing.
As a result of the re-evaluation, many of the proposed minimum
biobased contents have been revised for the final rule. These revisions
will be presented and discussed in the item specific sections later in
this preamble. For two items, USDA reviewed the biobased content data
but did not find sufficient justification through specific public
comments, performance information, or additional biobased content data
points for revising the proposed minimum biobased content level. For
the adhesive and mastic removers item, 12 biobased content test results
were available (44, 61, 73, 79, 81, 83, 83, 84, 85, 89, 89, 95, and
99). There was a significant break in the data points between the
product with 44 percent biobased content and the product with the next
higher value of 61 percent. USDA could find no justification, based on
the products' performance information, to either subcategorize this
item or to set the minimum biobased content at a level based on the 44
percent biobased content product. Information available for the
remaining 11 products did not support the creation of subcategories or
provide any rationale for setting the minimum biobased content at any
specific point with the range. Also, the proposed minimum biobased
content for this item was 58 percent and no public comments or
additional data were received to support changing the proposed level.
As a result, the proposed minimum biobased content of 58 percent was
retained for the final rule.
For the fertilizers item, the proposed minimum biobased content was
71 percent. There is a significant break in the tested biobased content
levels, with three products at or below 26 percent and 10 products at
or above 74 percent. USDA has retained the proposed 71 percent minimum
biobased content for the final rule because no justification was found
to subcategorize the item, no public comments or additional data were
received, and USDA knows of no unique performance claims that are
offered by the three products with biobased contents below this level.
USDA also notes that as additional biobased content data become
available for designated items, the minimum biobased content will be
re-evaluated periodically and revised as appropriate, based on all
available data.
One commenter is concerned, in part, about proposing a minimum
biobased content at a level lower than the lowest tested biobased
content. This does occur, but it occurs because of the test method used
to determine a product's biobased content. The test method has a
``margin of error'' associated with it. This margin of error is a plus
or minus three percentage points. For example, if Product A has a
tested biobased content of 75 percent, its actually biobased content
could be from 72 to 78 percent. Thus, it is statistically appropriate
to reduce the tested biobased content 3 percentage points in order to
ensure that the product on which the item's minimum biobased content
was based still be qualified if re-tested.
Comment: Two commenters stated that, if the lower biobased content
products cannot prove they offer better performance properties or meet
certain application requirements, USDA should recommend higher biobased
content products to stimulate product innovations that contain higher
biobased levels. The commenters then stated that this holds
particularly true for: Hand cleaners and sanitizers, composite panels,
graffiti and grease removers, metalworking fluids, glass cleaners, food
grade greases, and biodegradable cutlery. Given the lack of information
on exceptional performance properties of the lower biobased content
products in these categories, the commenters recommended establishing a
minimum biobased content at 50 percent for these products.
Response: As discussed in the previous response, USDA has re-
evaluated the proposed minimum biobased contents for all of the
proposed items and has revised the minimum biobased contents for
several items. In its re-evaluation, USDA considered product
performance information to justify the inclusion of products at lower
levels of biobased content in addition to considering the range,
groupings, and breaks in the biobased content test data array.
With regard to the items specifically identified by the commenter,
USDA has created subcategories for three of the items (hand cleaners
and sanitizers, composite panels, and metalworking fluids \4\), which
has resulted in establishing higher biobased contents for some of the
newly created subcategories. In addition, based on the re-evaluation of
the data, the minimum biobased contents were also raised for graffiti
and grease removers in this final rulemaking and for the disposable
cutlery and glass cleaners items in the Round 3 final rulemaking. USDA
does not believe, however, that setting the minimum biobased contents
for items at a predetermined level (such as 50 percent) is appropriate
without consideration of performance and applicability, as well as
other factors, on an item-by-item basis. Please see the Item Specific
Comments section of the preamble for discussion on all of these
[[Page 27938]]
items and their minimum biobased content.
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Effect of Lower vs. Higher Biobased Contents
Comment: Several commenters expressed concern about the effect of
``lower rather than higher'' biobased contents. Two commenters believe
that setting the biobased content too low for many of the 20 designated
items in Rounds 2 and 3 will undermine motivation to produce products
with higher levels of biobased content. Similarly, a third commenter
stated that it believes higher biobased contents would encourage
development by the private sector of higher biobased content products,
which in turn would have a multiplier effect on biobased input use even
larger than the government purchases themselves.
Response: For the reasons stated in response to other comments in
this FR notice, USDA believes the procedure it uses meets the goals of
the statute and opens the door for more biobased products to be
purchased by Federal agencies. In response to comments, USDA re-
evaluated the proposed minimum biobased content for all items in this
regulation. This re-evaluation resulted in a revised minimum biobased
content for several items based upon product performance information
and the range, groupings, and breaks of biobased content data.
Designating biobased products for preferred procurement will
increase the demand for such products and will encourage more
manufacturers to develop biobased products. As items are designated for
preferred procurement, it is then the Federal agencies' responsibility
to purchase those biobased products with the highest biobased contents
that meet their performance specifications. Therefore, to sell more of
their biobased products under the preferred procurement program,
manufacturers will be motivated to develop products with higher
biobased contents than their competitors.
USDA agrees that setting higher minimum biobased content
requirements would provide a higher target for manufacturers and may
result in manufacturers developing higher biobased content products.
However, USDA believes that to do so without regard to the current
status of development of biobased products would delay the purchase of
many biobased products. USDA believes its responsibility is to
implement a preferred procurement program on the basis of products
currently available in the marketplace and then to depend upon the
statutory requirement for purchasing agencies to buy those qualifying
products with the highest biobased contents available that meet their
performance requirements at a reasonable cost. In setting the minimum
biobased content, USDA also seeks to avoid situations where the minimum
biobased content is set at such a high level that it can currently be
met by only one manufacturer's product(s), thus creating a ``single
provider'' situation which would delay implementation of the program
for these products.
USDA believes the approach it is taking in setting minimum biobased
contents is appropriate. In instances where performance requirements
vary significantly for products within an item and where sufficient
data are available, USDA has created subcategories with different
minimum biobased content requirements within a single designated item.
Discussions of these changes are included in the section of this
preamble that presents comments and response related to specific
designated items.
Meeting the Goals of the Statute
Comment: Two commenters stated that the goals of the preferred
procurement program (increasing demand for biobased products; spurring
rural economic development through value-added agricultural products;
and enhancing the nation's energy security by substituting biobased
products for products derived from imported oil and natural gas) would
be better met by substantially increasing the minimum biobased content
level for many of the 20 items proposed for designation in the two
Federal Register notices. A third commenter referred to section 9002(e)
of FSRIA as the basis for USDA setting minimum biobased contents at the
highest level practicable.
Response: USDA believes there are various ways to achieve the goals
of the BioPreferred Program, including the commenters' suggestion of
``substantially increasing the minimum biobased content level'' for
many of the items. Because many biobased products are in their infancy,
however, USDA believes that the best way to make inroads in their
purchase by Federal agencies and to increase market interest in the
production of biobased products, including those manufacturers who may
otherwise not be interested, is to set minimum biobased contents that
reflect the array of biobased content data and product performance
characteristics to meet the needs of the Federal procurement community.
For this final rule, USDA re-evaluated each of the item's minimum
biobased contents considering the biobased content data and performance
characteristics and subcategorized and revised several items' minimum
biobased contents, as appropriate. The minimum biobased contents
established by this rule allow the purchasing agencies to select
biobased products with higher biobased contents in conformance with
paragraph (c) of section 9002, which states that procuring agencies
shall ``give preference to such items composed of the highest
percentage of biobased products practicable * * *.'' that meet the
performance, price, and availability requirements of the statute. USDA
will continue to provide information on the full range of biobased
contents found among products within designated items, which will
assist procuring agencies in purchasing those products that have the
highest biobased content.
Information
Comment: Two commenters suggested that USDA make available more
information on the biobased content for each product tested, rather
than providing a range of biobased contents. The commenters stated, as
an example, if the biobased content of ten of the 30 biobased
fertilizers ranged from 74 to 100 percent and if nine of these tested
at 100 percent, USDA should consider setting the minimum content close
to 100 percent rather then near the lowest biobased content tested
product.
Response: USDA posts on the BioPreferred Web site all of the
biobased content data received. This information can be accessed by
going to the BioPreferred Web site (http://www.biopreferred.gov) and
then clicking on the ``Proposed and Final Regulations'' link and then
the supporting documentation link for the applicable round of
designations. USDA's goal is to provide enough specific information on
biobased contents in preambles so that reviewers will have sufficient
data to adequately comment on a proposed minimum biobased content. If
readers feel that they need more detailed information, they can access
all of the data as indicated above.
Subcategorization
Comment: One commenter stated that USDA should consider the
precedence in EPA's recycled content products program for setting
several content levels based on different applications and apply that
principle to some of the items being proposed for designation for which
USDA's data indicate that multiple minimum biobased contents are
appropriate.
Response: USDA agrees with the commenter that each designated item
[[Page 27939]]
should be examined to determine whether or not it is reasonable to
create subcategories within an item. As discussed in the Background
section of this preamble, USDA intends to create subcategories in those
items where there are groups of products within the item that meet
different markets, uses, and/or performance specifications. For some
items, however, USDA may not have sufficient information at the time of
proposal to create subcategories within an item. In such instances,
USDA may either designate the item without creating subcategories
(i.e., defer the creation of subcategories) or designate one
subcategory and defer designation of other subcategories within the
item until additional information is obtained on products within these
other subcategories.
Where USDA has sufficient information on products within an item to
justify creating subcategories, USDA will do so. With regard to the 20
items proposed for designation under Rounds 2 and 3, USDA has re-
evaluated individual items when requested by the commenters and has
created subcategories for six items (hand cleaners and sanitizers;
composite panels; fluid-filled transformers; metalworking fluids; \5\
greases; and carpet and upholstery cleaners).
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Overlap With EPA's Comprehensive Procurement Guideline (CPG)
Comment: One commenter, in considering the potential for overlap
between biobased products and recycled content products, noted the
decision-making process and the information to be provided to assist in
making the purchase decision and concluded that there may be less
overlap between CPG items and designated biobased items than there
appears to be at first glance.
Response: USDA agrees with the commenter that there may be the
appearance of an overlap in many cases where, after all of the required
performance characteristics of the products are evaluated, an actual
overlap does not exist. Federal agencies should evaluate the
performance needs of the products when deciding whether there is an
actual overlap between the preferred procurement programs.
For the items within this rulemaking, USDA has identified products
within insulating foam, composite panels, disposable containers,
sorbents, and fertilizer as potentially overlapping with EPA-designated
recovered content products. Where their products compete directly with
EPA-designated recovered content products, the Federal agency must
purchase the recovered content product.
In some cases, however, there may be factors that would give
purchase preference to the biobased product. For example, a disposable
container may be required to be biodegradable. If the EPA-designated
recovered content product is not biodegradable, preference would be
given to the biobased container, subject to cost, availability, and
performance. Similarly, a biobased sorbent may be given preference over
an EPA-designated recycled content sorbent if the biobased content
product addresses a Federal agency's certain environmental or health
performance requirements that the EPA-designated recovered content
product would not meet.
Finally, there may be instances where products within these items
may be able to meet both sets of procurement preferences. For example,
almost all of the biobased sorbents are produced from waste streams of
paper, corn processing, or fabric processing, which could be considered
recycled. Composite panels made with embedded fibers may be made with
recycled plastic materials. For these and other such products, there
may be no conflict between these two programs as the product may
satisfy both.
BEES Analytical Tool
Comment: One commenter stated that the BEES scores may be difficult
for many users to grasp and suggested that USDA consider additional or
alternative approaches (e.g., graphical representation) for presenting
the information. The commenter also suggested that users may find the
actual impact values easier to understand than the scaled values used
for scoring (e.g., grams of CO2 equivalents per functional
unit of product (global warming), grams of N equivalents per functional
unit (eutrophication), etc.). The commenter believes that some users
may also find the actual impact values useful in compiling
environmental impact data for reporting under OMB scorecards, GPRA
results, EMS reports, etc. The commenter provided an example table of
how such information could be presented.
Response: USDA agrees with the commenter that the BEES impact
values are useful. The BEES impact values for the designated items in
this final rule can be found in Appendix A of the document ``Technical
Support for Final Rule--Round 2 Designated Items,'' which is available
on the BioPreferred Web site. USDA will provide the BEES impact values
in all future proposed rulemakings for designated items.
With regard to alternative presentations of the data, USDA has
discussed with the commenter various methods of supplementing the
tabular display with a graphical representation of BEES environmental
performance score results. USDA will add a graphical presentation of
these BEES results in subsequent proposed rulemakings. A graphical
presentation of the BEES environmental performance scores for the
designated items in this final rule can be found in Appendix B of the
document ``Technical Support for Final Rule--Round 2 Designated
Items,'' which is available on the BioPreferred Web site.
Compostability
Comment: One commenter requested that USDA emphasize the
compostability of products within item designations for biodegradable
films, containers, and cutlery in order to better qualify with the
Federal Trade Commission's (FTC) Guides on Environmental Labeling. The
commenter believes that consumers may mistakenly think that
biodegradable products should be landfilled rather than recovered and
recycled via composting. The commenter stated that by labeling these
items as compostable, USDA is providing direction on the proper
disposal and recovery for disposable biobased products.
Response: Although USDA is not requiring films or cutlery to be
biodegradable in order to receive preferred procurement, USDA agrees
with the commenter that biodegradable products within these (and other)
items need to be composted rather than landfilled in order for the
products to biodegrade. USDA points out that these products need to be
composted in commercial composting facilities in order to be exposed to
the proper temperature and moisture requirements for composting.
Composting these products in a ``backyard'' compost pile will not
necessarily result in the complete biodegradation of the product.
Finally, all container products identified have been indicated by their
manufacturers as meeting compostability requirements.
Terminology
Comment: One commenter recommended that USDA clarify the use of the
terms ``biobased,'' ``biodegradable,'' and ``compostability'' within
the biobased preferred procurement program. According to the commenter,
these terms are at times used interchangeably, creating a
[[Page 27940]]
confusing picture of what the program is intended to cover. The
commenter also inquired as to why some of the items proposed for
preferred procurement were designated as ``biodegradable'' and others
were not.
Response: USDA agrees that there can be confusion with regard to
the three terms mentioned by the commenter. A ``biobased'' product is a
product that is composed, in whole or in significant part, of
biological products or renewable domestic agricultural materials or
forestry materials. A biobased product may or may not be biodegradable
and/or compostable. As noted earlier in the preamble,
``biodegradability,'' in simple terms, measures the ability of
microorganisms present in the disposal environment to completely
consume the biobased carbon product within a reasonable time frame and
in the specified environment, with composting being one such
environment under which biodegradability occurs. ``Compostable''
generally means a product is capable of biological decomposition under
controlled aerobic conditions, such as found in a compost pile or
compost bin, by microorganisms or soil invertebrates. As noted in a
previous response to a comment on compostability, however, some
designated products may not fully degrade (i.e., biodegrade) in a
``backyard'' compost pile.
Of the twenty items proposed for designation for preferred
procurement under Rounds 2 and 3, three items--films, containers, and
cutlery--were designated as ``biodegradable.'' In the final rule, USDA
has revised these item descriptions to eliminate the term
``biodegradable'' from the item being designated and has instead made
biodegradability, where appropriate, a requirement for a biobased
product to receive preferred procurement. To illustrate, USDA proposed
``biodegradable containers'' as an item for preferred procurement. This
would have meant that only biodegradable containers currently being
purchased would be considered for replacement by biobased biodegradable
containers under the preferred procurement program. This is not what
USDA intended. The item that should have been proposed was ``disposable
containers'' so that all disposable containers would be considered for
replacement under the preferred procurement program with biobased
biodegradable containers.
This same situation also existed for the other two items--
biodegradable films and biodegradable cutlery. For those two items, the
item designation should have been for nondurable films and disposal
cutlery, respectively. USDA has modified the item designations as
indicated and has included a biodegradable criterion only for the
biobased versions of containers. As explained in a separate Federal
Register notice for Round 3 designated items, USDA is not making
biodegradability a requirement for films or for cutlery.
USDA notes that not all biobased containers are biodegradable or
are not known whether or not they are biodegradable because they have
not yet been tested for biodegradability. All of the container products
listed on the BioPreferred Web site, however, have been verified by
their manufacturer as being biodegradable. Further, USDA will only post
on the BioPreferred Web site information on biobased container products
that are biodegradable.
Biodegradability Requirements
Comment: One commenter stated that the biodegradability
requirements for the three items (cutlery, films, and containers)
should be identical, and should (1) meet ASTM D6400 ``Specification for
Compostable Plastics'', (2) meet European Norm 13432, or (3) be
approved by the BPI. The commenter provided suggested wording.
Response: Notwithstanding the fact that USDA is not requiring films
to be biodegradable (as explained in a separate Federal Register notice
for Round 3 designated items), USDA agrees with the commenter that the
requirements for all three items should have been the same, including
referring to ASTM D6400 for cutlery rather than ASTM D5338. Because
ASTM D6400 may not be applicable to all biobased products to
demonstrate biodegradability, manufacturers may claim biodegradability
using other acceptable methods. In addition, if a product is disposed
of in a marine environment, the applicable ASTM method is ASTM D7081.
General Comments
Comment: One commenter requested that USDA clarify the relationship
between biobased products and recycled content products to assist in
the purchase decision. The commenter made the following three
recommendations:
1. On page 47567 of the FR notice, bottom of left column, the
commenter recommended inserting the following sentences before the
sentence beginning with ``Where a biobased item * * *,'': ``Section
6002 of RCRA requires a procuring agency procuring an item designated
by EPA generally to procure such items composed of the highest
percentage of recovered materials content practicable. However, a
procuring agency may decide not to procure such an item based on a
determination that the item fails to meet the reasonable performance
standards or specifications of the procuring agency. An item with
recovered materials content may not meet reasonable performance
standards or specifications, for example, if the use of the item with
recovered materials content would jeopardize the intended end use of
the item.''
2. On page 47567 of the FR notice, the bottom of left column reads:
``Where a biobased item is used for the same purposes and to meet the
same requirements as an EPA-designated recovered content product, the
Federal agency must purchase the recovered content product.'' The
commenter requested that USDA clarify the type of requirements and
whose they are. For example, the commenter suggested that the words
``Federal agency performance'' (or something similar) could be inserted
before ``requirements.''
3. On page 47567 of the FR notice, at the top of middle column, the
commenter recommended inserting ``a Federal agency's'' before
``certain'' and inserting ``performance'' before ``requirements'' to
ensure that the reader understands which and whose requirements USDA is
referring to.
Response: USDA agrees that the recommended revisions add clarity to
the discussion of the relationship between the two preferred
procurement programs. These suggestions have been incorporated into the
preamble of this final rule and will be incorporated into future
rulemaking packages.
Comment: One commenter suggested that the first sentence in the
preamble under ``Overlap with EPA Comprehensive Procurement Guideline
program for recovered content products'' be changed to read ``Some of
the products that are bio-based items designated for preferred
procurement may also be items EPA has designated under the
Environmental * * *.''
Response: USDA agrees that this editorial change provides
additional clarity to the sentence. This suggested change has been
incorporated into the preamble of this final rule and will be
incorporated into future rulemaking packages.
Comment: One commenter recommended that USDA consider an item
designation for ``engineered wood products,'' pointing out that there
are many other biobased products in addition to composite panels.
[[Page 27941]]
Response: USDA appreciates the comment, and understands that
composite panels are but one of a larger category of engineered wood
products. USDA is already considering specific engineered wood products
for future designation for preferred products.
Comment: One commenter recommended that USDA re-evaluate the BEES
weighting standards because it is concerned that applying weighting
factors to the proposed designated products consistently can lead to
counter-intuitive conclusions and believes that, in some situations, a
differentiation of weighting factors needs to be considered. The
commenter was also concerned about how the BEES weighting factors were
selected, as they seem to be the same for all products. Finally, the
commenter is concerned about the utility of the BEES analysis results,
which seem to be unaffected by such a broad range of unit prices (e.g.,
$17.64 and $132 for fertilizers; $89.06 and $983 for glass cleaners).
The commenter then recommended that more information about the
supporting analysis be disclosed before items are designated for
procurement.
Response: The BEES analytical tool, including its factors and their
weightings, was developed by a scientific board and, as such, it is
beyond USDA's ability to modify the tool. It is true that the BEES
weighting factors are the same for all products. USDA does not agree,
however, that differentiation of weighting factors is desirable.
Weighting factors indicate the relative ``importance'' of the BEES
impact categories (e.g., global warming) to the Nation, which should
not be confused with the relative ``performance'' of specific products
with respect to those impact categories. Product performance is
captured by the life-cycle data underlying each product's BEES results,
and will vary with differences in raw material feedstocks and
cultivation practices and in life-cycle energy and water use. A single
product's poor performance with respect to global warming, which will
worsen its BEES global warming score, does not necessarily imply that
global warming should be more important to the Nation as a result.
The broad range of unit prices for some items, pointed out by the
commenter, simply indicates that biobased alternatives for some can be
produced using different biobased feedstocks and manufacturing
processes, leading to different unit prices. The fact that the two
examples noted by the commenter show a wide range in unit prices is, in
the opinion of the USDA, exactly the type of useful information the
BEES provides. It would be extremely difficult to disclose more
information about the sample products without revealing specific
manufacturers' names and proprietary information. USDA points out that
the BEES analytical tool provides information and that it is up to the
purchasing agency to decide how to use that information. For more
information on the BEES analytical tool, users should access the BEES
Web site at http://www.bfrl.nist.gov/oae/software/bees.html.
Labeling Program
Comment: One commenter recommended that USDA either reserve the
label for higher-content products or require manufacturers to specify
the biobased content of the product on the label. According to the
commenter, this will encourage the purchase of products with higher
biobased contents, which would be consistent with Congress' intent. The
commenter was especially concerned about composite panels.
Response: USDA thanks the commenter for its comment. USDA has
considered this comment in developing the proposed rule for the
voluntary labeling program.
Item Specific Comments
Adhesive and Mastic Removers
Comment: One commenter recommended that adhesive removers be
grouped with graffiti and grease removers based on formulation and
functionality. The commenter stated that products designed to remove
asbestos, carpet and tile mastics can be formulated differently from
products designed to remove glue, tape, gums and other adhesive
materials. Further, products designed to remove adhesive can also be
formulated to remove greases and tars, graffiti paints, magic permanent
marker ink, and crayon. To reflect various formulations in the
marketplace, the commenter suggested that the designated item could be
graffiti, adhesive and grease removers with the following revised
definition: Industrial solvent products formulated to remove
automotive, industrial, or kitchen soils and oils, including grease,
paint, and other coatings, from hard surfaces or to remove adhesive
materials, including glue, tape, and gum, from various surface types.
Response: USDA appreciates the commenter's suggestion. After
reviewing the product information upon which this item was based, USDA
believes that the products are formulated to remove a range of both
adhesives and mastics. It is true that these, or similar, products may
also perform the function of a grease or graffiti remover. USDA has
already established a ``graffiti and grease removers'' item, and the
manufacturers of products that are capable of performing multiple
functions may market their products under either, or both, designated
items as long as the products meet the required minimum biobased
contents for the items. Because the products USDA evaluated as adhesive
and mastic removers are marketed as such, USDA believes it is
appropriate to maintain the item name as proposed. The definition was
not changed as the result of this comment, but it has been slightly
modified in two ways. First, the definition was changed to read
``solvent products'' rather than ``industrial cleaning solvent
products'' in order to reflect the broader nature of products than can
be included in this item. Second, and as discussed in the response to
the following comment, the word ``ceramic'' was removed from the
definition.
Comment: One commenter recommended that this designated item be
revised to focus just on mastic removers (see previous comment) and
recommended the following definition for mastic removers: Industrial
cleaning solvent products formulated for use in removing asbestos,
carpet, and tile mastics. The commenter also recommended that the
qualifier ``ceramic'' tile be dropped in the definition of mastic
remover because mastics are used to lay down tiles made of a variety of
materials.
Response: As noted in the previous response, USDA is retaining this
item designation to include both adhesive and mastic removers. However,
USDA agrees with the commenter that the word ``ceramic'' should be
dropped from the definition as it is unnecessarily limiting. Therefore,
USDA has removed the word ``ceramic'' from the definition.
Plastic Insulating Foam for Residential and Commercial Construction
(Formerly Insulating Foam for Wall Construction)
Comment: One commenter proposed the following definition for this
item: Foam insulating products designed to provide a sealed thermal
barrier for residential or commercial building construction
applications, including walls, ceilings, attics and crawl spaces. The
commenter recommended this definition because biobased spray foam can
and is used in more than just walls, including floors and ceilings.
Response: USDA agrees that the various applications referenced by
the commenter should be included in the item designation. The
definition of this
[[Page 27942]]
item was intended to be broad so that products such as those identified
by the commenter would be included. The definition of the item was also
intended to reflect the products that were evaluated for the item. Upon
review of the products that were evaluated, USDA has determined that
the item definition needs to be revised to specifically apply to
plastic insulating spray foam products. This revision aligns the
definition more appropriately to the products that were evaluated. At
proposal, one rigid panel product with 65 percent biobased content was
considered to be a product in this item. However, because information
was available for only a single rigid panel product, USDA has decided
to limit the current designation to spray foam products and to attempt
to gather sufficient data to designate rigid foam insulating panels as
a subcategory of this item at a later date. Therefore, the one rigid
foam product was removed from the data set for this item.
In addition, USDA has determined that the name of this designated
item needed to be revised. First, the proposed item's name gives the
impression of a much more narrow range of products (i.e., wall
construction) than appropriate. Second, the item's name should help the
user understand that products within this item are plastic insulating
foam products. Therefore, USDA has changed the name of this designated
item in the final rule from ``Insulating Foam for Wall Construction''
to ``Plastic Insulating Foam for Residential and Commercial
Construction.''
Comment: One commenter recommended that the minimum biobased
content be raised from 8 percent to 10 percent. According to the
commenter, their first efforts at creating a biobased foam came in
above 10 percent and the commenter feels anyone who is truly interested
in manufacturing biobased foam insulations should be able to reach the
10 percent mark.
Response: The biobased content of the product that set the proposed
minimum biobased content for this item was 11 percent, higher than that
reported by the commenter. Because of the margin of error in the test
method, which is plus/minus three percentage points, USDA proposed a
minimum biobased content of 8 percent (11 percent minus 3 percentage
points). However, since proposal USDA has received two additional
biobased content test results for this item. These two tested samples
contained 10 percent and 13 percent biobased material. As discussed in
the previous response, USDA has also dropped from consideration the one
rigid foam product whose biobased content was 65 percent. The biobased
contents of the 5 tested products within this item are now 10, 11, 11,
13, and 29 percent. Because 4 of the 5 data points are within a 3
percentage point range, USDA considers these products to be
representative of the biobased products for which we have biobased
content information. While the remaining product offers a significant
increase in biobased content from the other products (29 percent versus
about 10 percent), USDA decided not to set the minimum biobased content
based on this single product. Therefore, the product with the 10
percent biobased content was determined to be the product upon which
the minimum biobased content based. Subtracting the three percentage
points to allow for testing variability results in a minimum biobased
content of 7 percent for this item. USDA will continue to gather data
on this item and, if sufficient data are obtained to justify
subcategorization or a revision in the minimum biobased content, such
change will be made in a future rulemaking.
Comment: One commenter believes that there is no overlap or
conflict between biobased spray foam insulation and EPA's CPG guidance
for foam-in-place insulation. The commenter stated that they had
searched EPA's on-line CPG supplier database and did not find any
listings for foam-in-place insulation with a recycled content. The
commenter then conducted a broader general Web-based search, which also
did not reveal any companies that indicated they are making spray foam
insulation that contains a recycled or recovered material. Therefore,
the commenter concluded that if there are no commercially available
spray foam products that meet the CPG definition, then in reality there
will be no overlap or conflict with biobased spray foam insulation.
Response: USDA has conducted additional research into whether there
were any plastic spray-in-place insulating foams that were being
manufactured with recycled materials. USDA contacted 13 insulation
manufacturers and trade associations regarding spray-in-place
insulation foams. None of the contacts identified a plastic spray-in-
place insulating foam product with recycled content. USDA did identify
spray-in-place products with recycled cellulose content. To the extent
that such recycled content products and biobased spray-in-place
products can perform the same job, there may be an overlap. Overall,
however, if a purchasing agent requires a plastic spray-in-place
insulating foam, there should be no overlap between biobased spray-in-
placed products and CPG products.
While there is unlikely to be an overlap with regard to spray-in-
place products, there is still a potential overlap between products
within this designated item and products within the CPG's building
insulation products group because products within this designated item
include preformed products such as foam board. Polyisocyanurate
(polyiso) materials, which are used to make insulating foam boards,
almost always contain recycled content (see Appendix D in the document
Technical Support for Final Rule--Round 2 Designated Items, which can
be obtained from the BioPreferred Web site). Thus, while there may be
no overlap with plastic spray-in-place insulating foam products, there
is the potential for overlap between biobased foam board products and
similar CPG products.
In conclusion, USDA points out that potential overlap can occur
between biobased products and CPG products when they are used for the
same purpose and when both can meet the required performance
specifications. The key consideration in determining if there is an
overlap between a biobased product and a CPG product is whether a
purchaser can select either product for a specific job. USDA does not
expect this to occur, on the basis of currently available products, for
spray-in-place insulation products, but it could occur for preformed
insulation products, such as foam board, which may be designated at a
later date.
Comment: One commenter asked why it was necessary to conduct both
E84-05 and E84-05e1 for insulating foam. According to the commenter,
they have never seen anyone test 05e1 and were wondering if it can not
be required or what the reasoning behind the extra requirement is.
Response: It is not necessary to test an insulating foam using test
methods E84-05 and E84-05e1. The lists presented in the preamble for
each of the designated items are compilations of test methods and
performance standards that manufacturers have reported and are not
lists of standards against which products within an item must be
tested. The rule does not require an insulating foam to be tested
against one or more particular standards, let alone against both
standards identified by the commenter. It is up to the manufacturer of
the product to determine the appropriate standard(s) against which to
test their products. If a standard must be used to qualify a product
for preferred
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procurement, it will be identified in the rule and not in the preamble.
To avoid confusion and to better present standards in future
proposals, USDA is refining the presentation of the ASTM standards to
present only the standard number (in this case, E84) and not the year
in which it was adopted (in this case, -05 and 05-e1).
Comment: One commenter questioned the use of a square foot as the
unit of measure for the BEES analysis. According to the commenter, foam
insulation is measured in board feet, which is 1-foot by 1-foot at a 1-
inch depth. The commenter pointed out that this is important because
$1.10 a square foot is hard to measure without knowing the depth of
this insulation. For example, the commenter's foam installed runs about
40 cents a board foot, so at 3 inches deep your costs are $1.20 for
every square inch at 3 inch depth.
Response: USDA agrees with the commenter that the functional unit
for this item, as presented in the proposal, was incorrect. The
functional unit for this item should have been reported as ``one-square
foot that is 3.5 inches deep.'' USDA has updated this information on
the BioPreferred Web site.
Hand Cleaners and Sanitizers
Comment: One commenter recommended adding skin surface removal
standards to the rulemaking for hand cleaners and sanitizers, noting
that the three performance standards (ATCC 11229, ATCC 6358, and ATCC
6539) identified measuring the sanitizing action of disinfectants and
do not address removal, which is what hand cleaners are designed to do.
Response: USDA has searched the list of performance standards
posted by the National Science Foundation, the EPA, the Food and Drug
Administration, and the National Institute of Health to investigate
whether any of these organizations have performance standards for hand
cleaners. The search of these organizations' sites did not identify any
performance standards for hand cleaners.
USDA also contacted the commenter to determine if the commenter has
any information on specifications for hand cleaners. The commenter
provided USDA information on food safety, which included hand washing
requirements. The commenter also provided a link to hand hygiene in
health care settings. This information is available on the BioPreferred
Web site.
USDA would appreciate any additional information on hand cleaning
performance standards that the commenter, or others, could provide. Any
information received by USDA will be made available on the BioPreferred
Web site.
Comment: One commenter stated that some of the hand cleaner
products in the technical information did not seem accurate to the
proposed definition, pointing to one product described as a ``whole
body shampoo'' for skin and hair. The commenter recommended that the
category be restricted to hand cleaners and sanitizers and that the
definition be refined based on their input.
Response: USDA agrees that products within the technical documents
and those used to define an item need to be consistent with the
definition of the designated item. USDA evaluated the product described
by the commenter and decided, because the product could be used as a
hand cleaner, to leave the information about this product on the
BioPreferred Web site with the other hand cleaners and sanitizers
products. USDA's decision is based on the idea that as long as a
product is marketed within a designated item, it should not matter if
the product is also capable of performing in another designated item.
The fact that this cleaning product can also be used as a shampoo
should not eliminate it from being considered as a hand cleaner if it
can perform that function and if it meets the minimum biobased content
required of a hand cleaner. USDA notes that this particular product was
not used in either developing the minimum biobased content or for the
BEES analysis.
Comment: Two commenters recommended creating subcategories for hand
cleaners. Both commenters suggested at minimum recognizing hand
cleaners that are designed to remove soil, grease, etc., and those that
are designed to kill microorganisms (antimicrobial). One of the
commenters suggested following FDA formulation specifications to help
develop subcategories. The other commenter suggested addressing hand
cleaners and sanitizers in the same manner as was done for greases by
providing a general category definition and then listing and defining
subcategories as follows:
Hand Cleaners and Sanitizers--Personal care products formulated for
use in removing a variety of different soils, greases, and similar
substances, or bacteria from human hands with or without the use of
water.
Hand Cleaners--Personal care products formulated for use in
removing a variety of different soils, greases, and similar substances
from human hands with or without the use of water.
Hand Sanitizers--Personal care products formulated for use in
removing bacteria from human hands with or without the use of water.
Hand Cleaners and Sanitizers--Personal care products formulated for
use in removing a variety of different soils, greases and bacteria from
human hands with or without the use of water.
This commenter also suggested that, if USDA wants to retain a
single item designation for hand cleaners and sanitizers, the
definition be modified to read: Hand Cleaners and Sanitizers--Personal
care products formulated for use in removing a variety of different
soils, greases, and similar substances, and/or bacteria from human
hands with or without the use of water.
Response: USDA agrees with the commenters that hand cleaners and
sanitizers should be subcategorized because these two types of products
meet very different performance specifications; that is, the sanitizing
aspect requires those products to meet a performance level not required
of hand cleaners. In the final rule, USDA is subcategorizing this
designated item into two subcategories--(1) hand cleaners and (2) hand
sanitizers, which includes cleaners that are formulated to be both a
hand cleaner and sanitizer. USDA does not believe that a third separate
subcategory for cleaners formulated to be both a hand cleaner and
sanitizer is needed. A product that meets the minimum biobased content
level and the sanitizing requirements to qualify as a hand sanitizer
will also meet the minimum biobased content for a hand cleaner, which
is lower than for a hand sanitizer.
USDA separated the products within this item into each of the two
subcategories and then identified the biobased contents for the
products within each subcategory. For hand cleaners, the biobased
contents of the 21 tested hand cleaners are 21, 23, 33, 42, 42, 44, 45,
67, 70, 78, 80, 82, 83, 84, 84, 85, 86, 92, 95, 96, and 100 percent.
Because there is a significant break between the 45 percent product and
the 67 percent product, USDA reviewed the available product information
to determine if there was any justification for creating two
subcategories within this item. USDA's review of the information
available for the products within these two groups did not identify any
performance claims or other features that would justify further
subcategorization. Because there are a significant number of products
within the group with biobased contents above 67 percent, and because
USDA could not identify any unique performance features within products
in the other
[[Page 27944]]
group, the minimum biobased content has been set based on the product
with 67 percent biobased content. Reducing the 67 percent by 3
percentage points to account for testing variability results in a
minimum biobased content of 64 for this subcategory. In addition, the
biobased contents of available products will be posted on the
BioPreferred Web site, which will allow purchasing agencies the
opportunity to review the biobased contents of available products and
select those with higher biobased contents.
For hand sanitizers (and hand cleaners and sanitizers), the
biobased contents of the 14 tested hand sanitizers are 3, 24, 76, 76,
80, 80, 88, 89, 90, 91, 94, 95, 95, and 96 percent. Within this data
set, there is a significant break between the 24 percent product and
the 76 percent products. USDA investigated the products below this
break in the data but could not identify any performance claims or
other unique features that justified creating a subcategory or setting
the minimum biobased content on either of the two products below the 76
percent level. USDA is, therefore, setting the minimum biobased content
for the hand sanitizer subcategory at 73 percent, based on the product
with a tested biobased content of 76 percent.
Additional details on the subcategorization and establishment of
their minimum biobased contents for products within this item can be
found in Chapter 2 of the document ``Technical Support for Final Rule--
Round 2 Designated Items,'' which is available on the BioPreferred Web
site.
Finally, USDA has generally adopted the commenter's suggested
definitions, with the exception of hand sanitizers, where USDA has
combined the commenter's suggested definition for hand sanitizers with
the suggested definition of hand cleaners and sanitizers.
Comment: One commenter recommended that the minimum biobased
content for hand cleaners be set closer to 67 percent, based on the
data in the background information, rather than at the proposed 18
percent. The commenter stated that, if the differences in content
levels reflect differences in use or consistency (e.g., gel vs.
liquid), then USDA should provide separate content levels for the
various uses or consistencies.
Response: As noted in the previous response, USDA is breaking this
item into two subcategories--hand cleaners and hand sanitizers. Based
on the data available for both subcategories, USDA is setting the
minimum biobased content for hand cleaners at 64 percent and for hand
sanitizers at 73 percent.
Comment: One commenter recommended that, in the absence of
extensive testing to determine the efficacy of hand cleaner and
sanitizer products in their use in the health care industry, USDA
exempt the health care industry from the preferred procurement
requirement for hand cleaners and sanitizers. The commenter stated that
doing so will ensure that health care professionals will be able to
obtain products that meet patient safety needs. The commenter pointed
out that EPA is responsible for determining whether or not a product
can be considered a disinfectant and asked whether this had been
considered in the development of requirements to procure biobased hand
cleaners and sanitizers.
Response: The commenter is seeking a categorical exemption from the
preferred procurement program for these products when used in
healthcare facilities because there is an absence of testing to
demonstrate the efficacy of these products in a healthcare setting.
USDA does not believe that a categorical exemption for these products
is warranted for the reasons discussed in the following paragraphs.
USDA has met with various Federal agencies during the development
of the designation rules and, as discussed earlier in this preamble,
has worked with DoD and NASA to develop an exemption for all items when
used in products or systems designed or procured for combat or combat-
related missions and for spacecraft systems and launch support
equipment. However, an exemption for the hand cleaners and sanitizers
designated item has not been requested by other Federal agencies that
use these products in healthcare settings (such as the VA hospitals).
While USDA values and considers the opinion of individual commenters in
the rulemaking process, the concerns raised by this commenter do not
provide sufficient support, in USDA's opinion, to justify an exemption
for this item when other significant users of products within the item
have not requested an exemption.
The statutory requirements of FSRIA require USDA to designate items
for preferred procurement and to make available to the procurement
agencies information on the designated items, including information on
the performance characteristics of products offered within a designated
item. It is still the responsibility of the procurement agent to
determine whether a biobased product, or any other product, meets the
performance requirements of the procuring agency for which the product
is being bought and its intended use.
The statute requires procuring agencies to give preference to
biobased products in designated items, but does not require the agency
to purchase biobased products if one of three conditions exist, one of
which addresses the performance, or lack thereof, of the biobased
product. Specifically, the statute allows a procuring agency not to buy
a biobased product within a designated item if the biobased product
fails to meet the performance standards set forth in the applicable
specifications or fails to meet the reasonable performance standards of
the procuring agencies (see section 9002(c)(2)(B)). Because the statute
already provides the relief sought by the commenters, there is no need
to include such exemptions in the rule.
Providing a categorical exemption could have the effect of
discouraging manufacturers from developing biobased products within a
designated item. USDA believes this would have an unnecessary dampening
effect on potential markets for acceptable biobased products in the
future.
Finally, USDA urges manufacturers to note the concerns raised by
this commenter and recognize that extra effort on the part of
manufacturers may be necessary to provide procurement agents with
evidence that the manufacturer's products meet the agency's
requirements. This may require manufacturers to test their products
against all applicable standards and requirements for the markets
(e.g., healthcare facilities) in which they wish to market their
products. In addition, because procuring agencies are not required to
purchase biobased products if they fail any one of the criteria that
allow an agency to not purchase a biobased product within a designated
item, USDA is actively working to identify and publicize relevant
performance standards so that manufacturers can understand how to make
their products more desirable. To make information on the performance
characteristics of biobased products more accessible to the procuring
agencies, USDA is working with manufacturers to post product
performance information on the BioPreferred Web site or to provide a
link to the manufacturer's Web page where such information can readily
be obtained. While manufacturers have the responsibility to test their
products against applicable agency performance requirements and
specifications, in order to comply with section 2902.4 of the
Guidelines, procuring agencies will have to reexamine their performance
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requirements and specifications to ensure that they are not biased
against biobased products, that they are still necessary and relevant,
and that they are not redundant.
With regard to the commenter's question as to whether the Agency
had considered EPA's responsibility for determining whether a product
can be considered a disinfectant, USDA contacted EPA and was informed
that EPA does not regulate hand sanitizers. While EPA regulates a wide
range of antimicrobial products, it does not regulate products used
directly on humans or animals. Topical antimicrobial products are
regulated b