[Federal Register: May 14, 2008 (Volume 73, Number 94)]
[Rules and Regulations]
[Page 27977-27995]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my08-19]
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Part V
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-AA32
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 eight sections to designate items, including subcategories,
within which biobased products will be afforded Federal procurement
preference, as provided for under section 9002 of the Farm Security and
Rural Investment Act of 2002. USDA also is establishing minimum
biobased content for each of these items and subcategories.
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 October 11, 2006, a proposed rule in the Federal Register
(FR) for the purpose of designating a total of 10 items for the
preferred procurement of biobased products by Federal agencies
(referred hereafter in this FR notice as the ``preferred procurement
program''). This proposed rule can be found at 71 FR 59862. This
rulemaking is referred to in this preamble as Round 4 (RIN 0503-AA32).
The Round 4 proposed rule proposed designating the following ten
items, including their subcategories, for the preferred procurement
program: Bathroom and spa cleaners; \1\ clothing products; \2\ concrete
and asphalt release fluids; general purpose de-icers; \3\ durable
plastic films; \4\ firearm lubricants; floor strippers; laundry
products, including pretreatment/spot removers and general purpose
laundry products as subcategories; metalworking fluids--straight oils;
\5\ and wood and concrete sealers.
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\1\ At proposal this item was named ``bath and tile cleaners.''
Based on public comments received, and as explained in section IV of
this preamble, USDA has renamed this item as ``bathroom and spa
cleaners.''
\2\ Based on public comments received, and as explained in
section IV of this preamble, this proposed item has been withdrawn
from the final rule.
\3\ At proposal this item was named ``de-icers.'' Based on
public comments received, and as explained in this preamble, USDA
has renamed this item as ``general purpose de-icers.''
\4\ Based on public comments received, and as explained in
section IV of this preamble, this proposed item is now a subcategory
under the designated item ``films,'' which is included in the Round
3 final rulemaking.
\5\ At proposal this item was named ``cutting, drilling, and
tapping oils.'' Based on public comments received, and as explained
in section IV of this preamble, USDA has renamed this item as
``metalworking fluids'' and has included three subcategories.
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Today's final rule designates the following eight items, including
subcategories, within which biobased products will be afforded Federal
procurement preference: Bathroom and spa cleaners; concrete and asphalt
release fluids; general purpose de-icers; firearm lubricants; floor
strippers; laundry products, including pretreatment/spot removers and
general purpose laundry products as subcategories; metalworking fluids,
including straight oils, general purpose soluble, semi-synthetic, and
synthetic oils, and high performance soluble, semi-synthetic, and
synthetic oils as subcategories; and wood and concrete sealers,
including penetrating liquid sealers and membrane concrete sealers as
subcategories. USDA has determined that each of the items, including
the subcategories within them, being designated under today's
rulemaking 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 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 designated item ``hand cleaners and
sanitizers,'' some products are required to meet performance
specifications for
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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 designated
item ``hand cleaners and sanitizers,'' USDA determined that it was
reasonable to create a ``hand cleaner'' subcategory and a ``hand
sanitizer'' subcategory. Sanitizing specifications would be applicable
to the later 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--laundry products, metalworking fluids, and wood and
concrete sealers. For laundry products, the subcategories are: (1)
Pretreatment/spot removers and (2) general purpose laundry products.
For metalworking fluids, the subcategories are: (1) Straight oils, (2)
general purpose soluble, semi-synthetic, and synthetic oils, and (3)
high performance soluble, semi-synthetic, and synthetic oils. For wood
and concrete sealers, the subcategories are: (1) Penetrating liquid
sealers and (2) membrane concrete sealers.
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, USDA must rely on biobased product manufacturers to
voluntarily submit product information and, in some cases, USDA has
been able to obtain biobased content data for only a single product
within a designated item. As USDA obtains additional data on the
biobased contents for products within these eight 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, none of the minimum biobased
contents 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.
Preference compliance date. Because USDA has identified only one
manufacturer of products within the high performance soluble, semi-
synthetic, and synthetic oils 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 metalworking fluids in the high performance soluble, semi-
synthetic, and synthetic oils subcategory.
Future Designations. In making future designations, USDA will
continue to conduct market searches to identify manufacturers of
biobased products within 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 earlier item designation rules, USDA created
exemptions from the preferred procurement program's requirements for
procurements involving combat or combat-related missions and for
spacecraft systems and launch support equipment. Since publication of
those final rules in the Federal Register, and in response to comments
from the Department of Defense (DoD) (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, which will apply to all items designated for the procurement
preference. These ``blanket'' exemptions can be found in subpart A of
part 2902. Because these blanket exemptions are included in subpart A
of part 2902, it is unnecessary to repeat them in the individual item
designations. Accordingly, in order to avoid repetition, this final
rule removes all the exemption references contained in individual item
designations.
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.
Item withdrawn. The proposed ``clothing products'' item has been
withdrawn from the group of items being designated for preferred
procurement in today's final rulemaking. USDA has determined that
sufficient data are not available to support the designation of this
item at this time. At proposal, USDA had information on clothing
products made of polylactic acid (PLA), one type of
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biobased synthetic fiber. USDA is also aware that other types of
biobased synthetic fibers could be used for clothing products but does
not have sufficient information to include these products in the
evaluation of this item. Because there is potentially a wide variation
in the biobased contents, performance, and life cycle costs between
clothing products made of PLA and those made of other biobased
synthetic fibers, USDA believes that the designation of this item
should be delayed until additional products can be obtained and
analyzed.
Item names. The names for four of the proposed items were revised.
``Bath and tile cleaners'' is now ``bathroom and spa cleaners.'' ``De-
icers'' is now ``general purpose de-icers.'' ``Durable plastic films''
was renamed ``durable films'' and is now a subcategory under the
designated item ``films,'' which is included in the Round 3 final
rulemaking. ``Cutting, drilling and tapping oils'' was renamed
``metalworking fluids--straight oils'' and is now a subcategory under
the designated item ``metalworking fluids'' in today's final
rulemaking.
Item definitions. Except for ``concrete and asphalt release
fluids'' and ``floor strippers,'' the definitions for the other items
were modified to varying degrees. The definitions for metalworking
fluids and wood and concrete sealers were modified in order to address
the addition of subcategories (as discussed in the following
paragraph).
Subcategories. In addition to finalizing the proposed subcategories
under the ``laundry products'' item, subcategories were created for two
items. Metalworking fluids was subcategorized into (1) straight oils,
(2) general purpose soluble, semi-synthetic, and synthetic oils and (3)
high performance soluble, semi-synthetic, and synthetic oils. Wood and
concrete sealers was subcategorized into (1) penetrating liquid sealers
and (2) membrane concrete sealers.
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 general purpose de-icers, the minimum biobased content was
changed from 97 percent to 93 percent.
For floor strippers, the minimum biobased content was changed from
79 percent to 78 percent.
For laundry products, the minimum biobased content of the
pretreatment/spot removers subcategory was changed from 8 percent to 46
percent.
For metalworking fluids, the minimum biobased content for the high
performance soluble, semi-synthetic, and synthetic oils subcategory was
set at 40 percent and the minimum biobased content for the general
purpose soluble, semi-synthetic, and synthetic oils subcategory was set
at 57 percent. For the straight oils subcategory, the minimum biobased
content was set at 66 percent.
For wood and concrete sealers, the proposed minimum biobased
content of 79 percent was retained for the penetrating liquid sealers
subcategory and the minimum biobased content for the membrane concrete
sealers subcategory was set at 11 percent.
Preference compliance date. For the high performance soluble, semi-
synthetic, and synthetic metalworking fluids subcategory, the
preference compliance date is deferred until USDA identifies two or
more manufacturers in the 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 high performance soluble, semi-synthetic, and synthetic
metalworking fluids.
IV. Discussion of Comments
USDA solicited comments on the proposed rule for 60 days ending on
December 11, 2006. USDA received comments from 11 commenters by that
date. The comments were from individual manufacturers, trade
organizations, and Federal agencies.
The comments contained in this Federal Register notice address
general comments related to the preferred procurement program under the
BioPreferred Program and specific comments related to Round 4 items. In
addition to the 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 4
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 4 Designation under Final Rules. This will bring you to the
link to the technical support document.
The technical support document includes, but is not limited to: (1)
Information on whether the standards presented in the preamble to the
proposed rule are test methods, performance standards, or ``other''
(e.g., a certification by a trade association or council, a
classification system) (Chapter 1.0), (2) BEES impact values for each
item (Appendix A), and (3) a tabular and graphical presentation of the
BEES environmental performance scores for each item (Appendix B). This
information is being presented in the technical support document as the
result of general comments received on the proposed rules for Rounds 2
and 3. The technical support document for Round 4 includes additional
information as identified in the remainder of this preamble.
General Comments
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.
Minimum Biobased Content
Comment: Several commenters have expressed concern 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
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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 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 three items, USDA reviewed the biobased content data
but did not find sufficient justification for revising the proposed
minimum biobased content level. For bathroom and spa cleaners item, 8
biobased content test results were available (16, 77, 78, 82, 83, 98,
99, and 100 percent). With the exception of the 16 percent product,
this is a fairly narrow range of data points with a noticeable break
between the 83 percent and the 98 percent products. USDA investigated
the 16 percent product but could find no basis for creating a
subcategory or for considering setting the minimum biobased content
based on this product. At proposal, USDA found that the products with
77 and 83 percent biobased content met Green Chemical Specifications
that the remaining products do not claim to meet. In order to include
these products in the preferred procurement program, USDA proposed
setting the minimum biobased content at 74 percent, based on the
product with a biobased content of 77 percent. No public comments or
additional data were received to support changing the proposed level.
As a result, the proposed minimum biobased content of 74 percent was
retained for the final rule.
For the concrete and asphalt release fluids item, USDA reviewed the
biobased content data (90, 91, 92, 93, 94, 94, 96, 96, and 98 percent)
and found that because the range of the data points is so narrow and
does not include any breaks, there is no justification for revising the
proposed 87 percent minimum biobased content.
For the firearm lubricants item, USDA proposed a minimum biobased
content of 49 percent. Three biobased content data points (52, 53, 95)
are available. USDA considered subcategorizing this item into two
subcategories (general purpose and cold weather) but decided that not
enough data were available to justify the subcategorization. The
manufacturer of one of the three products claims that the product is
formulated for use in cold weather applications, but the other products
are also described as unique performance products. Because of the
uncertainty regarding product performance claims, USDA has decided to
set the minimum biobased content of the item at 49 percent, as
proposed, and to continue to gather information that will be used in
considering subcategorization in a future rulemaking.
Terminology
Comment: One commenter stated that the biobased products
procurement program, as proposed, may create a confusing picture of
what the program is intended to cover because the terms ``biobased,''
``biodegradable,'' and ``compostable'' are used at times
interchangeably. The commenter asked whether Federal purchasing agents
understand the term ``biobased'' and that a biobased product is not
necessarily biodegradable. The commenter pointed out that
compostability most often only occurs when a product that is designed
to be compostable is properly managed in a composting facility.
According to the commenter, there are very limited numbers of
commercial composting facilities in the U.S. The commenter also asked
why some of the biobased items are designated as ``biodegradable'' and
others are 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. In simple terms, ``biodegradable'' generally means
a product is capable of decomposing into simple compounds under natural
conditions (either aerobic or anaerobic) by microorganisms.
``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.
Therefore, all biodegradable products would be compostable, but not all
compostable products are biodegradable.
As discussed earlier in this preamble, USDA believes that the
relationship between performance and biodegradability of an item must
be considered before biodegradability is included as a prerequisite for
a designated item to receive preferred
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procurement under the BioPreferred Program. In the case of items where
USDA judges performance to be the key decision-making factor for
purchasers, USDA will not require biodegradability as a prerequisite
for receiving preferred procurement. In the case of items where USDA
judges disposal to be as important as performance, USDA will require
biodegradability as a prerequisite for receiving preferred procurement.
This is why some items will be required to be biodegradable and others
will not in order to receive preferred procurement under the
BioPreferred Program. Although USDA is not requiring products in any of
the items and subcategories being designated in today's rulemaking to
be biodegradable, USDA intends to promote biobased products that are
also biodegradable as part of the BioPreferred Program.
Prequalification of Biobased Materials
Comment: Two 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
prequalified 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
designate ``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.
Overlap With EPA's Comprehensive Procurement Guideline (CPG)
Comment: Two commenters recommended that USDA's Guidelines
Designating Biobased Products for Federal Procurement 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. USDA believes that the discussion
on overlap is more meaningful when presented in individual notices for
designated items where such overlap exists or may exist.
Environmental and Health Information
Comment: Two 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 encourages 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.
Purchase of Biobased Products by Federal Agencies
Comment: One commenter recommended that information on the
following products be provided in the final rule for the benefit of
Federal agency purchasers implementing both this round of biobased
products and earlier biobased product designations: BioRenewables Glass
Cleaner, NSN 7930-00-NIB-0331 (2 liter) and 7930-00-NIB-0330 (gallon);
BioRenewables Restroom Cleaner, NSN 7930-00-NIB-0437; BioRenewables
Graffiti Remover SAC, NSN 7930-00-NIB-0433 (quart) and 7930-00-NIB-0434
(gallon); BioRenewables Waterless Hand Cleaner, NSN 8520-00-NIB-0093;
BioRenewables Waterless Plus Hand Cleaner, NSN 8520-00-NIB-0094;
TriBase Multi Purpose Cleaner, NSN 7930-00-NIB-0329; Lite'n Foamy
Sunflower Fresh foaming hand, hair, and body wash.
Response: USDA will include these products, offered through the
National Industries for the Blind, in the product information provided
on the BioPreferred Web site. Also note that the National Stock Numbers
(NSN) provided by the commenter have changed since the comment was
submitted. The revised NSN for the products are as follows:
BioRenewables Glass Cleaner, NSN 7930-01-555-2898 (32 oz) and 7930-01-
555-3384 (gallon); BioRenewables Restroom Cleaner, NSN 7930-01-555-2900
(32 oz); BioRenewables Graffiti Remover SAC, NSN 7930-01-555-3382 (32
oz) and 7930-01-555-2899 (gallon); TriBase Multi Purpose Cleaner, NSN
7930-01-555-2901 (gallon); Lite'n Foamy Sunflower Fresh foaming hand,
hair, and body wash, NSN 8520-01-555-2903.
Comment: One commenter urged USDA to clarify in the final rule that
it is not requiring procuring agencies to limit their choices to
biobased products that fall under the items for designation in this
proposed rule in order to avoid the unintended consequence of severely
limiting product selection and material selection options. The
commenter pointed out that a product should be reasonably available,
meet USDA's requirements for performance for the
[[Page 27983]]
application intended and be available at a reasonable price.
Response: USDA agrees with the commenter that Federal agencies are
not limited to considering biobased products when making purchasing
decisions under the BioPreferred Program for biobased products. Even
though biobased products are given preferred procurement, purchasing
agencies can buy other competing products when biobased products are
not readily available, are not available at a reasonable cost, or do
not meet Agency performance standards. USDA believes that this is
clearly stated for the current rulemaking and will continue to make it
clear in future rulemakings as well.
Information Accuracy
Comment: One commenter, noting that USDA stated that its attempts
to gather data were ``largely unsuccessful,'' urged USDA to re-examine
and improve upon its prior efforts to gather complete, technically
sound information on products within designated items and to use that
information to further refine the program in the future.
Response: USDA uses the phrase ``largely unsuccessful'' in the
context of its efforts to obtain information on the amount of products
within designated items that Federal agencies are using (for example,
see section IV.A, Executive Order 12866 in this preamble) and not on
the information associated with the products within each item.
Information on the usage of products would assist USDA to make
estimates of the potential economic impact of the rule.
USDA has in place a procedure to gather technical information on
products within each item it proposed for designation. As USDA proposes
additional items for designation, it seeks to improve this process with
each successive rulemaking to ensure the information it has is
technically sound. One area in which USDA is using the improved
information is in the development of subcategories within items. There
will always be some uncertainty in the data obtained, but USDA will
continue to propose items for designation for preferred procurement
with the data it has in hand. USDA encourages the provision of
additional information on products within items prior to their being
designated for preferred procurement. The items being considered for
preferred procurement can be found on the BioPreferred Web site.
Publicly Available Information
Comment: One commenter suggested that the data that form the basis
for USDA's decisions and their source be available to the public. The
commenter noted, as one example, that USDA intends to post public
comments on the ``positive environmental and human health attributes''
of products on its Web site, and make the comments available to Federal
procurement agencies to ``* * * assist them in making `best value'
purchasing decisions.''
Response: Since the first round of six items were designated for
preferred procurement, USDA has provided significantly more data on
each item being proposed for preferred procurement on the BioPreferred
Web site. At the BioPreferred Web site, technical information is
provided on products within the items. The BioPreferred Web site can be
accessed by the public at http://www.biopreferred.gov.
USDA is concerned that the commenter might believe that USDA is
using comments received on the ``positive'' attributes of biobased
products as a basis for designating an item for preferred procurement,
while ignoring potential ``negative'' attributes. This is not the case.
The availability of information on the environmental and health
attributes and life costs of items is part of the basis for proposing
an item for preferred procurement. USDA is using the BEES analysis,
which is ``neutral'' in regards to whether an environmental impact of a
biobased product is ``positive'' or ``negative,'' to provide some of
this information.
Finally, the statute authorizing the preferred procurement program
for biobased products requires USDA to, in part, provide information on
``environmental and health benefits'' of such materials and items.
Thus, USDA has a statutory obligation to make such information on the
positive environmental and human health attributes available.
One way USDA is implementing this requirement is by posting public
comments on the positive environmental and human health attributes of
products on the BioPreferred Web site. Given the infancy of most
biobased product markets, this type of information is often not
generally known and providing access to such information, provided it
is documented, is important to the success of the BioPreferred Program.
If such information is anecdotal, it will be so indicated.
Recycling
Comment: Several commenters were concerned about the effect of
biobased products on existing recycling operations.
One commenter requested that USDA evaluate and address the effect
that biobased polymers used for durable films will have on current
recycling streams and markets. According to the commenter, to the best
of their knowledge, no technology exists to screen out biobased
products during the recycling process.
Another commenter voiced concern over the introduction of biobased
plastics, such as PLA, into the recycling stream because such products
cannot be mixed with conventional plastics, such as PET, because the
materials are not compatible for recycling processes. The commenter
noted that PLA itself can be recycled, but that the recycling industry
infrastructure is not currently configured to implement segregation
collection and recycling of PLA plastics and there are no well-
established manufacture buy-back type programs to incentivize and
facilitate local or regional composting and recycling to turn PLA back
into PLA.
The third commenter noted that the impacts of interest for the
presence of biopolymers are on (1) the reclamation process and (2) on
the appearance and functionality of the recycled PET and HDPE plastic
products. The commenter then provided technical detail on the
characteristics of biobased polymers and PET and HDPE to illustrate the
reasons why such recycling incompatibility exists. This commenter then
made the following conclusions: (1) Biopolymers are unlikely to justify
an independent recycling business any time soon; (2) Biopolymers could
be a technical nuisance to HDPE reclaimers, creating a yield loss with
some economic cost; (3) Biopolymers could be a technical problem for
PET reclaimers, creating degraded PET product quality and serious
economic cost; (4) Biopolymers may be an opportunity for current
reclaimers if the value exceeds costs and the presence does not disrupt
current operations. Until critical mass is achieved, biopolymers will
likely represent some level of cost and technical challenges to
reclaimers and must pay their own way in collection, sorting, and
processing. The third commenter stated that biopolymers should target
product applications not currently included for recycling. Some
biopolymers are targeted for packaging applications that are not
typically recycled, such as food storage containers, bowls, and blister
packaging.
[[Page 27984]]
These packages may become included with bales of bottles destined for
recycling. Some parties have advocated the use of biopolymers for
packaging applications such as juice and other beverage containers that
are frequently recycled. As such, the impact of the USDA program on
existing recycling streams and programs needs to be considered.
Response: The purpose of the BioPreferred Program is to encourage
the purchase of biobased products, including products that are commonly
recycled. However, like the commenter, USDA is concerned that such
products are disposed of in an environmentally responsible manner. USDA
has consulted with EPA and with representatives of the Association of
Post-Consumer Plastic Recyclers (APCPR) to discuss this issue. APCPR
explained that their primary concern with attempts to place PLA or
other biobased plastics in existing recycling streams related to the
negative impacts that these biobased plastics have on the recycling of
PET. They pointed out that over seven billion pounds of PET are used
annually in the country and that the recycling of PET has been adopted
on a large-scale basis. There are two primary concerns related to the
introduction of biobased plastics into the PET recycling stream. First,
the presence of biobased plastics even in very small amounts (less than
1 percent) causes the resulting recycled plastic to lose the clarity
which is demanded in the largest market for these products (``soda''
and water bottles). Even a slight haze in the final product is
unacceptable to the bottling industry. The second concern relates to
the actual recycling technology. PET is separated from HDPE and other
petroleum-based plastics by floatation, PET floats in water and the
others do not. Most biobased plastics also float, however, making the
separation of PET from biobased plastics using floatation technology
impossible. Thus, if there are biobased plastics in the recycling
stream they remain with the PET stream. Following separation, the PET
is shredded and then placed in dryers to remove the moisture. Because
biobased plastics melt at a temperature that is much lower than the
melting temperature of PET, the biobased plastics tend to melt in the
PET dryers. Recyclers have indicated that the presence of even 0.1
percent of biobased plastics in the shredded stream can cause the
dryers to ``gum up'' and results in the rejection of the contaminated
PET.
APCPR pointed out that an optical-type technology for separating
biobased plastics from PET is available, but that it is very expensive.
Because there is currently such a small amount of biobased plastics
available for recycling, there is no economic incentive for recyclers
to purchase the equipment necessary to separate it from PET. APCPR
further explained that for the recycling of biobased plastics to become
economically viable there needs to be both a readily available supply
of used material and a significant market for the recovered plastic,
neither of which exists today.
APCPR also pointed out that biobased polymers used for other
applications, such as ``clam shell'' containers and other therma-form
products, do not present a problem for the recycling of those products.
They also noted that composting in commercial composting operations is
a viable alternative to the recycling of biobased polymers.
USDA encourages procuring agents and those involved in recycling to
provide education material to potential purchasers and users on
environmentally preferred disposal of such products. The APCPR Web site
(http://www.plasticsrecycling.org) presents technical information on
plastics recycling and procuring agents are urged to visit the site for
more information. In addition, USDA will post relevant information in
this regard on the BioPreferred Web site to assist manufacturers,
purchasers, and users become aware of the potential impacts of biobased
plastics on recycling and on the preferred disposable methods for such
products.
Comment: One commenter stated that to be successfully recycled a
significant critical mass must be reached and that many resins,
including various biopolymers, are not and are not likely soon to be
present in sufficient quantities to justify free-standing recycling.
The commenter believes that each resin must be self-supporting and not
rely on subsidy from other resins for successful recycling. According
to the commenter, although PVC is normally removed from the PET recycle
stream as a matter of course, considerable development would be needed
to make this possibility a working reality for other polymer bottles.
If the ``other'' polymer, be it a biopolymer or petroleum-derived
polymer, is not removed, then the impacts of potential contamination
must be considered. Like many variants in the recycling stream, the
effects of inclusion of ``other'' resins starts as a nuisance, rises to
a problem with higher levels of occurrence, and finally becomes an
opportunity when critical mass is achieved.
Response: As discussed in the response to the previous comment,
USDA recognizes the challenges presented to the plastic resin recycling
industry by the increased use of biopolymers. USDA will post relevant
information on the BioPreferred Web site to assist manufacturers,
purchasers, and users become aware of the potential impacts and the
preferred disposable methods for biopolymer-based products.
Comment: One commenter made several recommendations on how USDA
should address recycling in the purchase of biobased packaging
materials.
First, the commenter recommended that USDA stress that it is not
requiring procuring agencies to limit their choices to biopolymer-based
packaging that is incompatible with current reclamation. The commenter
believes that to do so is consistent with other guidance USDA provides
with regard to other ``green'' programs.
Second, the commenter also recommended that, beyond the life cycle
of the product itself, USDA ask agencies to consider the impact of the
introduction of a new or non-traditional polymer for a specific
application on existing recycling streams. The commenter believes that
containers being recycled are as valuable to sustainability as
containers being made of renewable material.
Third, for the reason stated above, the commenter further asked
that USDA establish sustainable solid waste management (i.e.,
recycling) as one of the product performance standards for procuring
agencies to request information on and consider. The commenter
considers that the definition of sustainable solid waste management
must include the economic ability of items to be processed for
recycling and sold profitably. Similarly, an item that meets
sustainable solid waste management criteria must not significantly
degrade the ongoing, successful recycling of other items. In closing,
the commenter stated that packaging material should be selected if it
meets the functional and aesthetic requirements for the intended
application, is commercially available and competitively priced, and
does not disrupt existing, sustainable solid waste management programs.
Response: While USDA is concerned with all aspects of the
BioPreferred Program, its statutory authority does not extend to
include regulating the disposal, recovery, or recycling of biobased
products. USDA encourages Federal procuring agencies to consider the
impact that proper disposal of biobased products may have when they
[[Page 27985]]
are making decisions on the purchase of such products. As discussed in
the previous responses, USDA will attempt to provide information on the
disposal of biobased products to procuring agencies via its
BioPreferred Web site.
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
Department of Defense (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 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. The commenter therefore recommended that the
rule continue to reflect or include exemptions for all items used in
products and systems designed or procured for combat or combat-related
missions in sections 2902.37, 2902.39, 2902.40, and 2902.42. Sections
2902.36, 2902.38, 2902.41, 2902.43, 2902.44, and 2902.45 may at some
future time be found to require a combat exemption for a specialized
use we have not been able to determine at this time. The commenter
suggested that the goals of the biobased preference program are better
served if the focus in DoD is on product used for more conventional
purposes (similar to commercially available items), rather than
extending the requirements to combat uses. The commenter stated that
DoD is being very proactive in encouraging the use of bio-based
products through both policy and research and development investments
related to combat uses, however DoD is not in a position to support
USDA selection of materials at this time.
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. This discussion has included
whether there is a need for an exemption and, if so, whether an
exemption should be on an item-by-item basis or whether a ``blanket''
exemption should be implemented. After such discussions, USDA is
exempting from preferred procurement all items used in products or
systems designed or procured for combat or combat-related missions. 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 tactical 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 DoD in tactical situations.
Comment: Two commenters 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. The
commenters note that they are aware of applications in the clothing
(military uniforms and other clothing) and de-icers (airport runways)
where the introduction of a biobased ingredient into these products
could result in not only equal performance but potentially enhanced
performance. The commenters state that performance testing is currently
in progress to support the intended uses for these products.
Recognizing that the biobased products industry is in its infancy, the
commenters believe that proposing exemptions for critical performance
applications because there is a current lack of performance testing
data to support some of these applications is both unnecessary, as
discussed above, and counter to the intent of the Farm Bill of using
federal procurement to pull biobased products into the marketplace.
Response: USDA agrees with the commenters 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.
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.
Biobased Content Testing
Comment: One commenter recommended that the ASTM active standard
06866-06 (standard test methods for determining the biobased content of
natural range materials using radiocarbon and isotope ratio mass
spectrometry analysis) replace the historical D6866-04.
Response: USDA agrees that the most recent and active ASTM standard
needs to be used. In order to minimize the need to update the
regulation, USDA has decided to simply refer to the base ASTM
designation (in this case, ASTM 6866) and drop the year designation (in
this case, the -04) and instead specify in the final rule that the
``current version'' of ASTM D6866 be used for determining biobased
content.
Incidental Funding
Comment: One commenter noted that under a separate rulemaking USDA
clarified that the procurement guidelines do not apply to purchases of
designated items that are unrelated to or incidental to Federal
funding. The commenter stated that ``incidental to federal funding''
should be defined or clarified. According to the commenter, because the
Energy Policy Act of 2005 extended the biobased procurement preference
program applicability to contractors of the federal government, the
question of what constitutes an
[[Page 27986]]
incidental purchase becomes important and could benefit from additional
clarification, either through regulations or guidance, to ensure
federal agencies take a consistent approach. This area seems inherently
open to a range of interpretation. For example, one could logically
conclude that in a contract that requires submission of a report in
paper format, the paper and the recycled material content of the paper
would be incidental to the purpose of the contract (i.e., the reporting
effort). However, the Federal Acquisition Regulations (FAR) actually
contains a specific contract clause, 52.204-4, to ``encourage''
contractors to submit paper documents, such as offers, letters, or
reports, printed or copied double-sided on 30 percent post-consumer
recycled content paper. The commenter then provided other examples,
which were identified to them by the Office of the Federal
Environmental Executive.
In conclusion, the commenter recommended that USDA provide some
additional regulatory language indicating when procurement is
considered incidental to federal funding. The commenter offered the
following example. Unless a material procurement meets all three of the
following tests it would be considered incidental to the purpose of the
contract: (1) The biobased material item is ultimately delivered to the
federal government, or is consumed on the government facility as part
of performing the contract; (2) The biobased material is not a
subcomponent of a commercially available manufactured item (for
example, the hydraulic fluid provided in a piece of equipment) unless
the industry provides for procuring the item with a biobased component
option; and (3) The presence or absence of the biobased material can
reasonably be determined from technical data sheets or other available
product information.
Response: The definition of ``procuring agency'' in FSRIA section
9001, as amended by the Energy Policy Act of 2005, makes it clear that
the requirements of section 9002 apply to ``indirect purchases'' (i.e.,
purchases by contractors). However, the requirements to purchase
biobased products do not apply to such purchases if they are unrelated
to or incidental to the purpose of the Federal contract. For example,
when a construction contractor purchases hydraulic fluid for
maintenance service of construction equipment being used in the
performance of a Federal building construction contract, that purchase
is incidental to the purpose of the construction contract. The
hydraulic fluid purchase would not be subject to the requirements of
section 9002 or the guidelines, even though some of the monies received
under the contract might be used to finance the purchase. USDA issued
an Interim Final Rule on July 27, 2006 (71 FR 42572) amending the
Guidelines at 7 CFR part 2902 to clarify that incidental purchases are
excepted. Agencies may, however, encourage contractors to investigate
biobased products in order to further develop markets for these
products.
Need for Program
Comment: One commenter questioned the need for ``another mandatory
preference program.'' According to the commenter, the proposed rule is
``diametrically opposed'' to the Federal Acquisition Reform Act, which
is supposed to simplify the Government acquisition process. The
commenter concludes that ``unless the manufacturers and vendors of the
items listed in the proposed rule can price them competitively (since
unreasonable price is an exception to the rule), no [contracting
officer] worth their weight will give the program a second look.''
Response: USDA respectfully disagrees with the commenter's
assessment of the need and possible outcome of the BioPreferred
Program. The Congressional intent in establishing the statutory
requirements of section 9002 were clearly spelled out in section 9002
and the subsequent Guidelines. The BioPreferred Program is not intended
to make Federal procurement more complicated, only to ensure that
procuring agencies give preference to biobased products that meet the
cost, performance, and availability criteria. USDA is confident that
manufacturers of biobased products will strive to develop and market
products that meet these criteria, including cost competitive biobased
products.
Qualifying Products and Country of Origin
Comment: One commenter expressed concern about the inability to
verify that feedstocks (e.g., palm or palm kernel oil or tallows) used
in surfactants originate from domestic sources or from designated
countries. According to the commenter, the major sources of palm and
palm kernel oil are Malaysia and the Philippines, neither of which is
on the FAR list of designated countries and, to their knowledge, there
is no production of palm or palm kernel oil in the U.S. or designated
countries. Therefore, USDA should not assume feedstocks for biobased
products are produced in the U.S. or in FAR-designated countries. The
commenter, in referring to the inability of the ASTM D6866 to determine
the country of origin of feedstock, stated that feedstock manufacturers
will need to certify that the biobased material is produced in the U.S.
or in FAR designated countries, and thus is a ``qualifying feedstock,''
and USDA will have to develop a monitoring process to ensure the
accuracy of this self-certification.
Response: The commenter is correct in stating that manufacturers
will need to self-certify that the biobased material in their
qualifying products is produced in the U.S. or in FAR-designated
countries. Manufacturers will be required to self-certify that their
products meet the minimum biobased content for the designated item
under which their product falls and that the product is produced from
qualifying feedstock. USDA plans to develop an audit program to monitor
compliance with both self-certifications.
Benefits of Rule Not Realized
Comment: One commenter stated that because most surfactants are
produced using feedstocks that are not grown in the U.S. or in FAR-
designated countries and because substitution of petrochemical-based
surfactants such as LAS for biobased surfactants does not necessarily
result in lower energy requirements, the proposed rule will neither
provide the benefits of increasing domestic production of biobased
products nor enhance U.S. energy security.
Response: USDA is aware that not all biobased products within every
designated item will yield across-the-board gains in meeting the goals
of the BioPreferred Program. The manufacture and use of some biobased
products may result in significant reductions in the use of petroleum-
derived feedstocks, thus resulting in an ``energy'' savings. The
products addressed by the commenter may not yield these savings.
However, USDA believes that the designation of items for preferred
procurement will provide an incentive for manufacturers to research and
develop biobased products that will qualify for the procurement
preference. As the markets for additional biobased products develop,
there will be added motivation for producers of feedstock materials
(such as surfactants) to develop qualifying materials.
Item Specific Comments
Bathroom and Spa Cleaners (Formerly Bath and Tile Cleaners)
Comment: One commenter, in referring to the proposal statement
concerning the need for Federal
[[Page 27987]]
agencies to compare the cradle-to-grave impacts of the manufacture,
use, and disposal of biobased and non-biobased products, pointed out
that cradle-to-grave assessments of petrochemical- and oleochemical-
based (biobased) surfactants (cleaning agents) used in this item have
been conducted using life-cycle inventory and risk assessment
methodologies (Pittinger et al., 1993). The commenter also referred to
other, more extensive studies conducted in Europe. The commenter
pointed out that these assessments found no consistent advantage for
biobased versus non-biobased feedstock sources because all surfactants
consume energy and raw materials in production and transportation and
all release environmental emissions. The commenter then stated that
risk assessments found no advantage to oleochemical feedstocks because
these risk assessments demonstrate low environmental and health risk
for the major surfactants and no major differences in the structures of
the surfactants that can be produced with either oleochemical or
petrochemical feedstocks, and thus no difference in biodegradation,
ecotoxicity, or environmental safety.
A second commenter expressed concern that the applicable life-cycle
studies which demonstrate no clear advantage for cleaning product
ingredients derived from renewable resources were not referenced and
recommended that these studies be considered for inclusion.
Response: As discussed in the response to the previous comment,
USDA recognizes that the benefits of various biobased products are not
the same. USDA has adopted the BEES life-cycle analysis as a means of
providing purchasing agencies with information on the potential
benefits and impacts of products within designated items. USDA will
also post on the BioPreferred Web site any additional life-cycle
studies that are identified. However, USDA has a statutory requirement
to designate items for preferred procurement even though the life-cycle
benefits of certain feedstock materials (such as surfactants) may be
neutral or even less positive for some aspects of the analysis compared
to petroleum-based products.
Comment: One commenter recommended that the following two standards
developed by ASTM International be included in the ruling--D5343-061,
Guide for Evaluating Cleaning Performance of Ceramic Tile Cleaners and
D4488-951, Guide for Testing Cleaning Performance of Products Intended
for Use on Resilient Flooring and Washable Walls.
Response: USDA will add these two ASTM standards to the list of
performance standards identified on the BioPreferred Web site as
applicable to the bath and tile cleaners designated item.
Comment: One commenter was concerned that USDA had overlooked many
bath and tile cleaners and referred to a California Air Resources Board
(CARB) survey which identified 338 tile cleaners sold in California.
The commenter was very concerned that USDA's data collection methods
are deficient and recommended that USDA conduct a very thorough
evaluation of tile cleaners before finalizing the designation of
biobased products. The commenter also stated that the BEES and biobased
contents obtained may not be representative of all products on the
market, representing instead only a small subset of products. The
commenter recommended that the rulemaking demonstrate that the products
evaluated are representative of the market for these products.
Response: USDA appreciates the information concerning the CARB
study, which covered both biobased and non-biobased products. Because
one of the purposes of the BioPreferred Program is to identify biobased
products for potential preferred procurement, USDA's product
investigation efforts did not seek out non-biobased products. USDA
identified 16 manufacturers of biobased products within this item, with
29 biobased products being marketed. The range of biobased contents
among the eight tested products is from 16 percent to 100 percent.
While USDA has in place a rigorous procedure for identifying
products that are biobased, USDA recognizes that its procedure will not
uncover all possible biobased products. Based on available data, USDA
cannot determine if the samples that were voluntarily submitted by
manufacturers are representative of all biobased products within this
item. Regardless, USDA believes that it is reasonable to set minimum
biobased contents based on the information it does have. If the
commenter or others have additional information on the biobased content
of other biobased products within this item, USDA encourages the
commenter and others to submit that information to USDA. USDA will
evaluate the additional information in relationship to the minimum
biobased content for this designated item.
For this and all other items, USDA welcomes assistance in
identifying manufacturers and their biobased products for the
BioPreferred Program. A list of such items can be found on the
BioPreferred Web site.
Comment: One commenter was concerned that not all of the products
identified in the background information were appropriate to the
definition of bath and tile cleaners and recommended that the category
be clearly defined and restricted to bath and tile cleaners only.
Products identified by the commenter were one described as a
``(product) that eliminates the need to add chemicals to hot tub and
spa water'' and four described as toilet bowl cleaners.
Response: USDA acknowledges that some of the products listed in
this item may not appear to be traditional ``bath and tile cleaners,''
as the category was described at proposal. After re-examining the
products associated with this item, USDA believes that this group of
products is better described as ``bathroom and spa cleaners.'' By
defining this group of products as ``bathroom and spa cleaners,'' the
four toilet bowl products identified by the commenter are more
recognizably included in this item. With regard to the product referred
to by the commenter as one that ``eliminates the need to add chemicals
to hot tub and spa water,'' USDA notes that this product is intended to
prevent residue buildup, a function of the eliminated chemicals. It is
USDA's view that products that reduce the amount of cleaning required
(e.g., by preventing buildup of residue) are properly included in this
item.
On a general note, USDA points out that the manufacturers of the
various products evaluated for each item decide where and how their
products are marketed. Thus, if a manufacturer chooses to submit a
product under a given item during the designation process for that
item, USDA generally accepts that the manufacturer markets that product
under that item. Ultimately, it is the responsibility of the purchasers
to decide whether a given product will meet their needs.
Comment: One commenter recommended that this item be subdivided
into at least two subcategories. According to the commenter, the
formulation, concentration, product form, and other attributes of any
product will be dependent on intended use and should be categorized as
such. Therefore, the commenter recommended that ``General Purpose''
cleaners not be considered under this proposed rule because of their
use in many cleaning scenarios.
Response: In considering the commenter's request to subcategorize
[[Page 27988]]
this item, USDA points out that this item (renamed ``bathroom and spa
cleaners'' as discussed in the previous response) covers a wide variety
of surfaces to be cleaned. Many products that fall within this item are
designed to clean a wide variety of surfaces, while others are designed
to clean more specific types of surfaces (e.g., fiberglass shower
stalls). In addition, the range of biobased contents for all of the
tested products (with the exception of the one product with a tested
biobased content of 16 percent) is from 77 to 100 percent. USDA sees
little benefit to subcategorizing this item when the proposed minimum
biobased content of 74 percent (77 percent minus the 3 percentage
points to account for test method variability) will allow all but one
of the tested products to participate in the preferred procurement
program. Therefore, USDA has decided not to subcategorize the item at
this time. As additional information on products within this item is
obtained, USDA will revisit the commenter's suggestion to subcategorize
this item.
Clothing Products
Comment: Two commenters supported the proposed minimum biobased
content of 6 percent for this item, stating that this minimum biobased
content will help stimulate the continued development of biobased
clothing products, which is still in a development stage as evidenced
by the identification of only 3 manufacturers and 5 individual biobased
products within this item. Both commenters suggested that obtaining
more data for clothing products will help USDA to subcategorize this
item and to set minimum biobased contents on a subcategory level.
Response: USDA thanks the commenters for their comments and their
interest in the BioPreferred Program. As discussed earlier, USDA has
decided to withdraw the clothing products item from this rulemaking.
USDA will continue to gather data on biobased clothing products as more
products are developed. When USDA obtains adequate data to support the
designation of clothing products, to evaluate the need for
subcategories with the item, and to establish the appropriate minimum
biobased content for the item, another proposal notice will be
published.
General Purpose De-Icers (Formerly De-Icers)
Comment: One commenter stated that USDA's proposal to set the
minimum biobased content for de-icer products is not appropriate at
this time. The commenter noted that USDA defined de-icers as ``agents
that aid in the removal of snow and ice.'' According to the commenter,
because of their different applications, higher performance de-icers
are formulated to meet very specific performance requirements. These
formulations are often based on performance standards, not only to de-
ice, but also to meet other safety and equipment related needs. As
such, these higher performance de-icers are usually blends of
materials. The commenter concluded by stating that setting a minimum
biobased content at 97 percent (essentially a 100 percent biobased
product material) will exclude many applications for de-icers that
contain or will contain biobased materials and products.
Response: USDA has revised the name of this item to clearly
indicate that products that fall within this item are de-icers that are
used in ``general purpose applications'' and not in specialized
applications, such as the de-icing of airplanes and airport runways. To
make the current designated item clearer in its intended coverage, USDA
has added ``general purpose'' to the designated item name and
references general purpose applications in the definition.
USDA has also revised the minimum biobased content for this item
based on the receipt of additional biobased content data since
proposal. The biobased contents of the sampled products are now 76, 96,
100, 100, and 100 percent. There is a significant break in the data
between the 76 percent and the 96 percent products. USDA investigated
the 76 percent product but did not find any performance or
applicability claims that would justify creating a subcategory or
setting the minimum biobased content based on that product. USDA is,
therefore, setting the minimum biobased content for this item at 93
percent, rather than the 97 percent that was proposed. As noted earlier
in this preamble, as USDA obtains more information on the biobased
contents of other general purpose de-icer products, USDA will evaluate
whether or not to revise the minimum biobased content for general
purpose de-icers and, if appropriate, propose a change in the minimum
biobased content.
USDA agrees with the commenter that de-icers used to de-ice
airplanes and airport runways are specialized de-icers and should not
be grouped with general purpose de-icers. As noted above, USDA is
designating this item under today's rulemaking as ``general purpose de-
icers'' and is specifically excluding from this item at this time de-
icer products used to de-ice airplanes or airport runways. As suggested
by the commenter, USDA will consider creating at a later date one or
more subcategories within this item to address unique performance
applications as information on de-icer products designed for those
applications is available. If and when USDA designates specialized de-
icers for preferred procurement, USDA will revise this item as
necessary, which may require renaming the item and creating specific
categories to cover general purpose de-icers and one or more
subcategories, as needed, to cover specialized de-icers.
Lastly, USDA has revised the definition of de-icers to clarify that
the item is referring to chemical de-icers, which can include such
products as salts and fluids (e.g., alcohols). The item does not
include mechanical methods (e.g., scraping) or methods that involve the
application of heat (e.g., electric heating elements buried underneath
surfaces).
Durable Plastic Films
Comment: One commenter stated that the definition of durable
plastic films is vague and needs clarification.
Response: USDA reviewed the definition of the durable films item
and the products intended to fall within the item and those that fall
within non-durable films, an item proposed for designation for
preferred procurement under another rulemaking on August 17, 2006
(Round 3, 71 FR 47590). USDA has decided to combine these two proposed
items into one item named ``films'' with a subcategory for semi-durable
films and a subcategory for non-durable films. The films designated
item is included in the Round 3 final rulemaking. The key
differentiation between the non-durable films and the semi-durable
films subcategories is that the former are products that are designed
and intended for single use, while the latter are designed and intended
for reuse. USDA has added this ``re-use'' characteristic to the
definition of semi-durable film.
Finally, USDA has dropped ``plastic'' from the name of this item.
In the proposal notice for this item, this item was referred to as both
``durable films'' and ``durable plastic films.'' The intent was not to
limit this item to ``durable plastic films.'' Therefore, USDA has
dropped ``plastic'' from the name of this item.
Comment: One commenter stated that durable (plastic) films, which
overlaps with the EPA-designated recovered content product: Plastic
trash bags, is overly broad and needs more subcategories, similar to
EPA's CPG
[[Page 27989]]
program. The commenter stated that this was needed because the minimum
biobased content was set based on the testing of two products, but that
the appropriate biobased content must be taken into account to ensure
its performance and durability.
Two other commenters also stated that USDA needs to establish
subcategories first and then establish a minimum biobased content for
each of these subcategories. These two commenters were also concerned
about the establishment of a minimum biobased content based on only two
samples, which the commenters do not believe is representative of the
many applications of the products within this item. The commenters
stated that this category covers many applications and the selection of
specific polymers used to make these films is very dependent on
performance requirements for the specific application. The commenters
pointed out as an example that durable plastic films are used for
higher performance applications such as packaging for food and to
achieve these performance requirements, durable films are often made
from composites or layers of polymer films in order to meet the
required barrier properties, resulting in multi-ingredient, multi-
layered films. The commenters believe that setting a high minimum
biobased content such as 61 percent will exclude these higher
performance applications for the biobased polymers that will be used in
these applications and that the minimum biobased content for some of
these subcategories will be substantially lower than the one USDA is
proposing. Therefore, the commenters believe that USDA's proposal to
set the minimum biobased content for durable plastic films is not
appropriate at this time.
Further, one commenter stated that USDA should not be setting, at
this time, a minimum biobased content level for a product category as
complex and diverse as durable plastic films. The commenter stated that
USDA needs to establish appropriate subcategories for durable plastic
films and then establish minimum biobased contents for each of these
subcategories. The other option, according to this commenter, is to
significantly lower the minimum biobased content level so higher
performance films that contain biobased polymers can be considered for
preferential procurement.
Response: USDA appreciates the potential complexity of the various
products that this item covers, as described by the commenters, and, as
discussed in the previous response, has established two subcategories
within the films item.
Firearm Lubricants
Comment: One commenter recommended that USDA set two content levels
for this item, one for general purpose and one for cold weather
applications. The commenter stated that information in the preamble
indicated that these two products had different formulations. The
commenter also referred to the statute under which Federal agencies are
to purchase USDA-designated biobased products containing the highest
percentage of biobased products practicable. According to the
commenter, it follows that USDA should recommend minimum biobased
contents that are the highest practicable and, for this item, USDA
should therefore either recommend a higher minimum biobased content or
recommend multiple content levels based on differences in product usage
or other characteristics.
Response: USDA agrees with the commenter that this item is a likely
candidate for subcategorization. However, as discussed earlier in this
preamble, USDA does not have sufficient information related to product
formulation and performance to justify subcategorization at this time.
Also, because only one manufacturer of a product that is described as a
cold weather lubricant has been identified, the effective procurement
date for that subcategory, if sufficient data were available to justify
creating a subcategory, would be deferred until at least one additional
manufacturer is identified. USDA will continue to gather information
for this item and will create subcategories within the item in a future
rulemaking if sufficient justification can be obtained.
Laundry Products
Comment: One commenter, in referring to the proposal statement
concerning the need for Federal agencies to compare the cradle-to-grave
impacts of the manufacture, use, and disposal of biobased and non-
biobased products, pointed out that cradle-to-grave assessments of
petrochemical and oleochemical-based (biobased) surfactants (cleaning
agents) used in this item have been conducted using life-cycle
inventory and risk assessment methodologies (Pittinger et al., 1993).
The commenter also referred to other, more extensive studies conducted
in Europe. The commenter pointed out that these assessments found no
consistent advantage for biobased versus non-biobased feedstock sources
because all surfactants consume energy and raw materials in production
and transportation and all release environmental emissions. The
commenter then stated that risk assessments found no advantage to
oleochemical feedstocks because these risk assessments demonstrate low
environmental and health risk for the major surfactants and no major
differences in the structures of the surfactants that can be produced
with either oleochemical or petrochemical feedstocks, and thus no
difference in biodegradation, ecotoxicity, or environmental safety.
Response: This commenter's concerns have been addressed by USDA in
the section of this preamble that presents comments and responses
related to the designated item for bathroom and spa cleaners.
Comment: One commenter recommended that the statement referring to
the ``* * * skin-irritating residues and * * * toxic chemicals'' in the
definition of this item be omitted from the ruling, as this statement
has no bearing on the final ruling.
Response: USDA agrees with the commenter that the referenced
statement is not needed in the rulemaking language and has removed it
from the definition.
Comment: One commenter recommended the following ASTM guides be
included in the ruling: D2960-51, Guide for Controlled Laundering Test
Using Naturally Soiled Fabrics and Household Appliances; D5237-051,
Guide for Evaluating Fabric Softeners; and D5548-0051, Guide for
Evaluating Color Transfer or Color Loss of Dyed Fabrics in Laundering.
The commenter also recommended that the American Home Appliance
Manufacturers standards be included. According to the commenter, these
ASTM standards are designed, approved, and used by laundry product
manufacturers to evaluate product performance.
Response: USDA thanks the commenter for their input to the
designation process and will add the information provided by the
commenter to the list of test methods and performance standards for
laundry products on the BioPreferred Web site.
Comment: One commenter recommended that USDA subcategorize laundry
products by each of the product descriptions--(1) Laundry detergents,
(2) bleach, (3) starch, (4) stain remover, (5) fabric softeners, etc.
According to the commenter, the proposed subcategories of ``general
purpose'' products and ``pretreatment/spot removers'' do not accurately
reflect the differences in formulations, product form, and intended use
of the various laundry products. The commenter also
[[Page 27990]]
recommended that fabric softeners be divided into washer and dryer
products because of the differences in delivery system (liquid
penetration versus deposition through a heated tumbling dryer).
Response: USDA agrees with the commenter that this item should be
subcategorized and, based on current performance information, has
retained the two proposed subcategories in the final rule. Under this
rulemaking, USDA has created two subcategories: (1) Pretreatment/spot
removers and (2) general purpose laundry products. USDA anticipates
creating additional subcategories once sufficient information is
obtained. USDA encourages the provision of additional information on
other laundry products for which manufacturers believe additional
subcategories should be developed.
For the two subcategories being designated in this rulemaking, USDA
is setting the minimum biobased contents as follows:
For pretreatment/spot removers, USDA has 6 biobased content test
results (11, 19, 49, 54, 54, and 83 percent). There are two significant
breaks in the range of data, one between the 19 percent product and the
49 percent product and another between the 54 percent product and the
83 percent product. USDA found no product performance features to
justify setting the minimum biobased content on the products with 11
and 19 percent biobased content. USDA also chose not to set the minimum
biobased content on the one product with 83 percent biobased content
because doing so would significantly limit the available product
choices for federal procuring agencies. Because the majority of the
remaining products were clustered around the middle of the range, USDA
is setting the minimum biobased content for the pretreatment/spot
removers subcategory at 46 percent.
For general purpose laundry products, four products were tested.
Their biobased contents were 37, 39, 40, and 46 percent. USDA is
setting the minimum biobased content for general purpose laundry
products subcategory at 34 percent because the range of the data is
narrow and there are no breaks in the data that would indicate that
further subcategorization is justified.
As additional information is obtained, USDA will revisit this item
to determine whether the minimum biobased content for either
subcategory should be changed or if additional subcategories should be
developed.
Additional information can be found in Chapter 3.0 of the Technical
Support for Final Rule--Round 4 Designated Items, which can be found on
the BioPreferred Web site.
Comment: One commenter recommended that a more thorough industry
investigation be conducted prior to the publication of a final rule by
conducting more analyses on products not found in the initial
investigation. The commenter stated that they were concerned that
USDA's collection methods were deficient because so few of products
formed the basis of the proposed rule. The commenter referred to two
CARB surveys which identified 92 laundry detergents, 360 spot removers,
56 prewash products, 68 brighteners, 47 detergent boosters, and 21
fabric wash products for sale in the state of California alone. The
commenter was very concerned that USDA's data collection methods are
deficient and recommended that USDA conduct a very thorough evaluation
of laundry products. The commenter also stated that the BEES and
biobased contents obtained may not be representative of all products on
the market, as only five products were evaluated for biobased content
and one for BEES analysis. The commenter recommended that testing be
performed on at least one proposed category to accurately reflect the
market for these products.
Response: USDA appreciates the information concerning the CARB
study, which covered both biobased and non-biobased products. Because
one of the purposes of the BioPreferred Program is to identify biobased
products for potential preferred procurement, USDA's product
investigation efforts did not seek out non-biobased products. USDA
identified 17 different manufacturers of biobased products within this
item (including both subcategories), with 45 biobased products being
marketed.
While USDA has in place a rigorous procedure for identifying
products that are biobased, USDA recognizes that its procedure will not
uncover all possible biobased products. Even with the subcategorization
of this item in the final designation, USDA does not know whether or
not the biobased contents it has obtained are or are not representative
of all biobased products within this item. Regardless, USDA believes
that it is reasonable to set minimum biobased contents based on the
information it does have. If the commenter or others have additional
information on the biobased content of other biobased products within
this item, USDA encourages the commenter and others to submit that
information to USDA. USDA will evaluate the additional information in
relationship to the minimum biobased content for this designated item.
For this and all other items, USDA welcomes assistance in
identifying manufacturers and their biobased products for the
BioPreferred Program. A list of such items can be found on the
BioPreferred Web site.
Comment: One commenter was concerned that not all of the products
identified in the background information were appropriate to the
definition of laundry products and recommended that the category be
clearly defined and restricted to laundry products only. The commenter
identified one product whose product's description states, ``(product)
for all your soft household surfaces, closets and storage areas. It is
all natural with light but long-lasting fragrance for freshness on your
carpets, sofas, draperies, etc. It is excellent when used to freshen
drawers and closets.''
Response: USDA acknowledges that some of the products listed in
this item may not appear to be traditional ``laundry products.'' The
product referred to by the commenter is also described as a product
that ``can be used as a fabric freshener when ironing.'' This product
would not fall within the two subcategories being created under this
rulemaking. However, if USDA were to create a ``fabric freshener''
subcategory under Laundry Products, such an item would be appropriately
included.
On a general note, as mentioned earlier in this preamble, USDA
points out that the manufacturers of the various products evaluated for
each item decide where and how their products are marketed. Thus, if a
manufacturer chooses to submit a product under a given item during the
designation process for that item, USDA generally accepts that the
manufacturer markets that product under that item. Ultimately, it is
the responsibility of the purchasers to decide whether a given product
will meet their needs.
Metalworking Fluids (Formerly Cutting, Drilling, and Tapping Oils)
Comment: One commenter recommended that USDA set two content levels
for this item for various uses or viscosities. The commenter stated
that information in the preamble and in the background information
posted on the BioPreferred Web site indicated that the differences in
biobased content reflected differences in use or viscosity. The
commenter also referred to the statute under which Federal agencies are
to purchase USDA-designated biobased products
[[Page 27991]]
containing the highest percentage of biobased products practicable.
According to the commenter, it follows that USDA should recommend
minimum biobased contents that are the highest practicable and, for
this item, USDA should therefore either recommend a higher minimum
biobased content or recommend multiple content levels based on
differences in product usage or other characteristics.
One commenter stated that some products originally included in the
metalworking fluids item are sold ``neat,'' but are formulated to be
emulsifiable and are intended to be mixed with water prior to use. The
commenter, therefore, recommended that the definition be revised to use
the following language: ``This item applies only to neat oils, not to
water emulsions or products intended to be emulsified with water prior
to use.''
One commenter suggested that, based on the data in the background
information, the minimum biobased content for proposed metalworking
fluids item should be higher than the proposed 40 percent or that USDA
establish multiple content levels reflecting differences in product
use. Alternatively, the commenter suggested that USDA consider
recommending a range, similar to the ranges the EPA recommends for
recycled content products.
Response: As a result of these comments received on the proposed
cutting, drilling, and tapping oils item and the Round 2 proposed
metalworking fluids item, USDA has combined the two proposed items into
a single item with subcategories. The following paragraphs present
USDA's rationale for this change.
First, USDA notes that metalworking fluids are generally classified
into four types: Straight oils, soluble oils (also called emulsified
oils), semi-synthetic fluids, and synthetic fluids. (The source of
these classifications came from the Occupational Safety and Health
Administration's ``Metalworking Fluids: Safety and Health Best
Practices'' Manual. See Appendix C in the document Technical Support
for Final Rule--Round 4 Designated Items, which can be found on the
BioPreferred Web site.) Of these, only straight oils are designed not
to be diluted with water prior to use. To account for the four types of
metalworking fluids, USDA has divided them into two groups of products.
One group includes straight oils, which are used in metalworking
operations where lubrication rather than cooling is the primary
concern. Such metalworking operations include cutting, drilling, and
tapping. The other group of products includes soluble, semi-synthetic,
and synthetic oils that are formulated to be diluted with water prior
to use.
Second, USDA re-examined the products contained in each of the
proposed items. Almost all of the products within the proposed cutting,
drilling, and tapping oils item are straight oils designed to be used
to perform multiple metalworking operations, including cutting,
drilling, and/or tapping. (See Chapter 4.0 of the Technical Support for
Final Rule--Round 4 Designated Items, which can be found on the
BioPreferred Web site.) In other words, these straight oil metalworking
fluids are inherently multipurpose straight oils. Their particular
formulations are not directly related to their intended use. Therefore,
USDA does not believe it is reasonable to try to further subcategorize
these straight oil products based on various uses or formulation,
including viscosity, as suggested by the commenter.
USDA reviewed the products within the soluble, semi-synthetic, and
synthetic oils group of products and agrees with the commenter's
recommendation that these products be divided into two subcategories.
Based on the variations in types of metal (e.g., steel versus aluminum)
and processes (e.g., grinding versus cutting) that may be encountered
in operations that use these metalworking fluids, USDA has divided
soluble, semi-synthetic, and synthetic oils into two subcategories--
``high performance'' and ``general purpose.'' USDA believes that by
establishing these two subcategories of soluble, semi-synthetic, and
synthetic oils, qualifying biobased products will be available to cover
the range of procuring agencies' needs.
Third, USDA has set the minimum biobased contents for the three
subcategories of metalworking fluids as follows. For the straight oils
subcategory of metalworking fluids, USDA has biobased content data for
12 products, as follows: 69, 76, 76, 78, 87, 89, 94, 94, 96, 98, 100,
and 100 percent. Because the range of these values is fairly narrow and
because there are no obvious breaks in the data, USDA set the minimum
biobased content at 66 percent, based on the 69 percent biobased
product. For the general purpose soluble, semi-synthetic, and synthetic
oils subcategory of metalworking fluids, USDA has biobased content for
14 products, as follows: 60, 66, 67, 67, 76, 77, 77, 79, 80, 84, 90,
98, 98, and 100 percent. As with the straight oils subcategory, there
were no readily identifiable breaks in the data that would indicate a
need for further subcategorizing these products. Therefore, USDA has
set the minimum biobased content for this subcategory at 57 percent,
based on the 60 percent biobased product. For the high performance
soluble, semi-synthetic, and synthetic oils subcategory of metalworking
fluids, the minimum biobased content was set at 40 percent because both
of the tested products have biobased contents of 43 percent.
Wood and Concrete Sealers
Comment: One commenter stated that this item should be split into
two categories--one for wood sealers and one for concrete sealers--and
should use nomenclature, if possible, that conforms with that found in
40 CFR part 59, National VOC Emission Standards for Architectural
Coatings. According to the commenter, 40 CFR Part 59 defines
``waterproofing sealer and treatment'' separately from ``wood
preservative'' and also separately defines ``concrete protective
coating.'' The commenter provided the following definitions:
Concrete protective coating means a high-build coating,
formulated and recommended for application in a single coat over
concrete, plaster, or other cementitious surfaces. These coatings are
formulated to be primerless, one-coat systems that can be applied over
form oils and/or uncured concrete. These coatings prevent splitting of
concrete in freezing temperatures by providing long-term protection
from water and chloride ion intrusion.
Waterproofing sealer and treatment means a coating
formulated and recommended for application to a porous substrate for
the primary purpose of preventing the penetration of water. Wood
preservative means a coating formulated and recommended to protect
exposed wood from decay or insect attack, registered with the EPA under
the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136,
et seq.).
Typically, paint and sealing products are substrate-specific.
Designating two substrates under one item increases the potential for
confusion, complicates compliance with architectural coating VOC
regulations, and has no advantage over designating them separately.
When procuring architectural coatings, the commenter typically makes
reference to commercial item descriptions based on Master Painter
Institute (MPI) specifications. These specifications will typically
address products intended for application to concrete substrates
separately from products for application to wood. Biobased product
vendors should be encouraged to conform any paint or sealant products
to these specifications to facilitate purchasing. In
[[Page 27992]]
the commenter's experience, they would rarely apply a product to
concrete solely for water resistance. More typically, sealers are
applied that also provide resistance to oil and gasoline. The commenter
also stated that, based on their experience, they would rarely apply a
product to wood (e.g., to wood decking) that did not also confer slip
resistance. This implies that procurement of the sealing products--as
USDA is contemplating the definition--might not result in significant
amounts of federal purchasing activity.
Response: At proposal, USDA had biobased content data on products
designed for sealing wood, concrete, or both. Specifically, the
biobased content data showed wood sealers with tested biobased contents
of 82, 91, and 91 percent; a concrete sealer with a biobased content of
82 percent; and a wood and concrete sealer with a biobased content of
82 percent. Based on this data, USDA proposed a minimum biobased
content of 79 percent for the item.
The products tested at proposal for their biobased contents were
all formulated to work as penetrating liquids. Since proposal, USDA has
obtained biobased content test results for several products formulated
to work as membrane-type sealers and to be used for masonry substrates.
The biobased contents for these products are 14, 22, 23, and 62
percent. Given the apparent difference in biobased content between the
two formulations of sealers, USDA has developed two subcategories
within this item based on product formulation rather than on substrate.
These two subcategories are: (1) penetrating liquids and (2) membrane
concrete sealers.
For the penetrating liquids subcategory, the current biobased
content data points are 82, 82, 85, 88, and 91 percent. Because the
range of these data points is very narrow and because three of the four
data points are between 82 and 85 percent, USDA is setting a minimum
biobased content of 79 percent for the penetrating liquids subcategory
based on the 82 percent products.
For the membrane concrete sealers, the biobased content data points
are 14, 22, 23, and 62 percent. There is a significant break in the
data between the 23 percent product and the 62 percent product. USDA
investigated the 62 percent product but does not have sufficient
product performance information to support further subcategorization.
Because three of the four data points range from 14 percent to 23
percent, and no further subcategorization can be supported, the minimum
biobased content for the membrane concrete sealers subcategory is set
at 11 percent.
V. Regulatory Information
A. Executive Order 12866: Regulatory Planning and Review
This action has been determined significant for purposes of
Executive Order 12866 and, therefore, has been reviewed by the Office
of Management and Budget. We are not able to quantify the annual
economic effect associated with this final rule. As discussed in the
proposed rule, USDA made extensive efforts to obtain information on the
Federal agencies' usage within the eight designated items, including
their subcategories. These efforts were largely unsuccessful. Therefore
attempts to quantify the economic impact of this rule would require
estimation of the anticipated market penetration of biobased products
based upon many assumptions. In addition, because agencies have the
option of not purchasing designated items if costs are
``unreasonable,'' the product is not readily available, or the product
does not demonstrate necessary performance characteristics, certain
assumptions may not be valid. While facing these quantitative
challenges, USDA relied upon a qualitative assessment to determine the
impacts of this rulemaking. This assessment was based primarily on the
offsetting nature of the program (an increase in biobased products
purchased with a corresponding decrease in petroleum products
purchased). Consideration was also given to the fact that agencies may
choose not procure designated items due to unreasonable costs.
1. Summary of Impacts
This rulemaking is expected to have both positive and negative
impacts to individual businesses, including small businesses. USDA
anticipates that the biobased preferred procurement program will
provide additional opportunities for businesses and manufacturers to
begin supplying products under the designated biobased items to Federal
agencies and their contractors. However, other businesses and
manufacturers that supply only non-qualifying products and do not offer
biobased alternatives may experience a decrease in demand from Federal
agencies and their contractors. USDA is unable to determine the number
of businesses, including small businesses, that may be adversely
affected by this rule. The rule, however, will not affect existing
purchase orders, nor will it preclude businesses from modifying their
product lines to meet new requirements for designated biobased
products. Because the extent to which procuring agencies will find the
performance and costs of biobased products acceptable is unknown, it is
impossible to quantify the actual economic effect of the rule.
2. Benefits of the Rule
The designation of these eight items, including their
subcategories, provides the benefits outlined in the objectives of
section 9002: To increase domestic demand for many agricultural
commodities that can serve as feedstocks for production of biobased
products; to spur development of the industrial base through value-
added agricultural processing and manufacturing in rural communities;
to enhance the Nation's energy security by substituting biobased
products for products derived from imported oil and natural gas; and to
substitute products with a possibly more benign or beneficial
environmental impact, as compared to the use of fossil energy-based
products. On a national and regional level, this rule can result in
expanding and strengthening markets for biobased materials used in
these items.
3. Costs of the Rule
Like the benefits, the costs of this rule have not been quantified.
Two types of costs are involved: Costs to producers of products that
will compete with the preferred products and costs to Federal agencies
to provide procurement preference for the preferred products. Producers
of competing products may face a decrease in demand for their products
to the extent Federal agencies refrain from purchasing their products.
However, it is not known to what extent this may occur. Procurement
costs for Federal agencies may rise as they evaluate the availability
and relative cost of preferred products before making a purchase.
B. Regulatory Flexibility Act (RFA)
When an agency issues a final rule following a proposed rule, the
Regulatory Flexibility Act (RFA, 5 U.S.C. 601-612) requires the agency
to prepare a final regulatory flexibility analysis. 5 U.S.C. 604.
However, the requirement for a final regulatory flexibility analysis
does not apply if the head of the agency certifies that the rule will
not, if promulgated, have a significant economic impact on a
substantial number of small entities. 5 U.S.C. 605(b).
USDA evaluated the potential impacts of its designation of these
items to
[[Page 27993]]
determine whether its actions would have a significant impact on a
substantial number of small entities. Because the Federal Procurement
of Biobased Products under section 9002 of FSRIA applies only to
Federal agencies and their contractors, small governmental (city,
county, etc.) agencies are not affected. Thus, this rule will not have
a significant economic impact on small governmental jurisdictions. USDA
anticipates that this program will affect entities, both large and
small, that manufacture or sell biobased products. For example, the
designation of items for preferred procurement will provide additional
opportunities for businesses to manufacture and sell biobased products
to Federal agencies and their contractors. Similar opportunities will
be provided for entities that supply biobased materials to
manufacturers. Conversely, the preferred procurement program may
decrease opportunities for businesses that manufacture or sell non-
biobased products or provide components for the manufacturing of such
products. However, this rule will not affect existing purchase orders
and it will not preclude procuring agencies from continuing to purchase
non-biobased items under certain conditions relating to the
availability, performance, or cost of biobased items. This rule will
also not preclude businesses from modifying their product lines to meet
new specifications or solicitation requirements for these products
containing biobased materials. Thus, the economic impacts of this rule
are not expected to be significant.
The intent of section 9002 is largely to stimulate the production
of new biobased products and to energize emerging markets for those
products. Because the program is still in its infancy, however, it is
unknown how many businesses will ultimately be affected. While USDA has
no data on the number of small businesses that may choose to develop
and market products within the items and their subcategories designated
by this rulemaking, the number is expected to be small. Because
biobased products represent a small emerging market, only a small
percentage of all manufacturers, large or small, are expected to
develop and market biobased products. Thus, the number of small
businesses affected by this rulemaking is not expected to be
substantial.
After considering the economic impacts of this rule on small
entities, USDA certifies that this action will not have a significant
economic impact on a substantial number of small entities.
While not a factor relevant to determining whether the rule will
have a significant impact for RFA purposes, USDA has concluded that the
effect of the rule will be to provide positive opportunities to
businesses engaged in the manufacture of these biobased products.
Purchase and use of these biobased products by procuring agencies
increase demand for these products and result in private sector
development of new technologies, creating business and employment
opportunities that enhance local, regional, and national economies.
Technological innovation associated with the use of biobased materials
can translate into economic growth and increased industry
competitiveness worldwide, thereby, creating opportunities for small
entities.
C. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule has been reviewed in accordance with Executive Order
12630, Governmental Actions and Interference with Constitutionally
Protected Property Rights, and does not contain policies that would
have implications for these rights.
D. Executive Order 12988: Civil Justice Reform
This rule has been reviewed in accordance with Executive Order
12988, Civil Justice Reform. This rule does not preempt State or local
laws, is not intended to have retroactive effect, and does not involve
administrative appeals.
E. Executive Order 13132: Federalism
This rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment. Provisions of this
rule will not have a substantial direct effect on States or their
political subdivisions or on the distribution of power and
responsibilities among the various government levels.
F. Unfunded Mandates Reform Act of 1995
This rule contains no Federal mandates under the regulatory
provisions of Title II of the Unfunded Mandates Reform Act of 1995
(UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal governments,
or the private sector. Therefore, a statement under section 202 of UMRA
is not required.
G. Executive Order 12372: Intergovernmental Review of Federal Programs
For the reasons set forth in the Final Rule Related Notice for 7
CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is
excluded from the scope of the Executive Order 12372, which requires
intergovernmental consultation with State and local officials. This
program does not directly affect State and local governments.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Today's rule does not significantly or uniquely affect ``one or
more Indian tribes, * * * the relationship between the Federal
Government and Indian tribes, or * * * the distribution of power and
responsibilities between the Federal Government and Indian tribes.''
Thus, no further action is required under Executive Order 13175.
I. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 through 3520), the information collection under this rule is
currently approved under OMB control number 0503-0011.
J. Government Paperwork Elimination Act Compliance
The Office of Energy Policy and New Uses is committed to compliance
with the Government Paperwork Elimination Act (GPEA) (44 U.S.C. 3504
note), which requires Government agencies in general to provide the
public the option of submitting information or transacting business
electronically to the maximum extent possible. USDA is implementing an
electronic information system for posting information voluntarily
submitted by manufacturers or vendors on the products they intend to
offer for preferred procurement under each designated item. For
information pertinent to GPEA compliance related to this rule, please
contact Marvin Duncan at (202) 401-0461.
List of Subjects in 7 CFR Part 2902
Biobased products, Procurement.
0
For the reasons stated in the preamble, the Department of Agriculture
is amending 7 CFR chapter XXIX as follows:
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CHAPTER XXIX--OFFICE OF ENERGY POLICY AND NEW USES, DEPARTMENT OF
AGRICULTURE
PART 2902--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL
PROCUREMENT
0
1. The authority citation for part 2902 continues to read as follows:
Authority: 7 U.S.C. 8102.
0
2. Add Sec. Sec. 2902.35 through 2902.42 to subpart B to read as
follows:
Sec. 2902.35 Bathroom and spa cleaners.
(a) Definition. Products that are designed to clean and/or prevent
deposits on surfaces found in bathrooms and spas including, but not
necessarily limited to, bath tubs and spas, shower stalls, shower
doors, shower curtains, and bathroom walls, floors, doors, and counter
and sink tops. Products in this item may be designed to be applied to a
specific type of surface or to multiple surface types. They are
available both in concentrated and ready-to-use forms.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 74 percent, which
shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than May 14, 2009,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased bathroom and spa
cleaners. By that date, Federal agencies that have the responsibility
for drafting or reviewing specifications for items to be procured shall
ensure that the relevant specifications require the use of biobased
bathroom and spa cleaners.
Sec. 2902.36 Concrete and asphalt release fluids.
(a) Definition. Products that are designed to provide a lubricating
barrier between the composite surface materials (e.g., concrete or
asphalt) and the container (e.g., wood or metal forms, truck beds,
roller surfaces).
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 87 percent, which
shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than May 14, 2009,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased concrete and asphalt
release fluids. By that date, Federal agencies that have the
responsibility for drafting or reviewing specifications for items to be
procured shall ensure that the relevant specifications require the use
of biobased concrete and asphalt release fluids.
Sec. 2902.37 General purpose de-icers.
(a) Definition. Chemical products (e.g., salt, fluids) that are
designed to aid in the removal of snow and/or ice, and/or in the
prevention of the buildup of snow and/or ice, in general use
applications by lowering the freezing point of water. Specialized de-
icer products, such as those used to de-ice aircraft and airport
runways, are not included.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 93 percent, which
shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than May 14, 2009,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased general purpose de-
icers. By that date, Federal agencies that have the responsibility for
drafting or reviewing specifications for items to be procured shall
ensure that the relevant specifications require the use of biobased
general purpose de-icers.
Sec. 2902.38 Firearm lubricants.
(a) Definition. Lubricants that are designed for use in firearms to
reduce the friction and wear between the moving parts of a firearm, and
to keep the weapon clean and prevent the formation of deposits that
could cause the weapon to jam.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 49 percent, which
shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than May 14, 2009,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased firearm lubricants. By
that date, Federal agencies that have the responsibility for drafting
or reviewing specifications for items to be procured shall ensure that
the relevant specifications require the use of biobased firearm
lubricants.
Sec. 2902.39 Floor strippers.
(a) Definition. Products that are formulated to loosen waxes,
resins, or varnishes from floor surfaces. They can be in either liquid
or gel form, and may also be used with or without mechanical
assistance.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 78 percent, which
shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than May 14, 2009,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased floor strippers. By that
date, Federal agencies that have the responsibility for drafting or
reviewing specifications for items to be procured shall ensure that the
relevant specifications require the use of biobased floor strippers.
Sec. 2902.40 Laundry products.
(a) Definitions. (1) Products that are designed to clean,
condition, or otherwise affect the quality of the laundered material.
Such products include but are not limited to laundry detergents,
bleach, stain removers, and fabric softeners.
(2) Laundry products for which preferred procurement applies are:
(i) Pretreatment/spot removers. These are laundry products
specifically used to pretreat laundry to assist in the removal of spots
and stains during laundering.
(ii) General purpose laundry products. These are laundry products
used for regular cleaning activities.
(b) Minimum biobased content. The minimum biobased content shall be
based on the amount of qualifying biobased carbon in the product as a
percent of the weight (mass) of the total organic carbon in the
finished product. The applicable minimum biobased contents for the
preferred procurement product are:
(1) Pretreatment/spot removers--46 percent.
(2) General purpose laundry products--34 percent.
(c) Preference compliance date. No later than May 14, 2009,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased laundry products. By
that date, Federal agencies that have the responsibility for drafting
or reviewing specifications for items to be procured shall ensure that
the relevant specifications require the use of biobased laundry
products.
[[Page 27995]]
Sec. 2902.41 Metalworking fluids.
(a) Definition. (1) Fluids that are designed to provide cooling,
lubrication, corrosion prevention, and reduced wear on the contact
parts of machinery used for metalworking operations such as cutting,
drilling, grinding, machining, and tapping.
(2) Metalworking fluids for which preferred procurement applies
are:
(i) Straight oils. Metalworking fluids that are not diluted with
water prior to use and are generally used for metalworking processes
that require lubrication rather than cooling.
(ii) General purpose soluble, semi-synthetic, and synthetic oils.
Metalworking fluids formulated for use in a re-circulating fluid system
to provide cooling, lubrication, and corrosion prevention when applied
to metal feedstock during normal grinding and machining operations.
(iii) High performance soluble, semi-synthetic, and synthetic oils.
Metalworking fluids formulated for use in a re-circulating fluid system
to provide cooling, lubrication, and corrosion prevention when applied
to metal feedstock during grinding and machining operations involving
unusually high temperatures or corrosion potential.
(b) Minimum biobased content. The minimum biobased content shall be
based on the amount of qualifying biobased carbon in the product as a
percent of the weight (mass) of the total organic carbon in the
finished product. The applicable minimum biobased contents for the
preferred procurement product are:
(1) Straight oils--66 percent.
(2) General purpose soluble, semi-synthetic, and synthetic oils--57
percent.
(3) High performance soluble, semi-synthetic, and synthetic oils--
40 percent.
(c) Preference compliance date. (1) Straight oils. No later than
May 14, 2009, procuring agencies, in accordance with this part, will
give a procurement preference for qualifying biobased metalworking
fluids--straight oils. By that date, Federal agencies that have the
responsibility for drafting or reviewing specifications for items to be
procured shall ensure that the relevan