[Federal Register Volume 75, Number 27 (Wednesday, February 10, 2010)]
[Proposed Rules]
[Pages 6796-6812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2651]
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Part II
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; Proposed Rule
Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 /
Proposed Rules
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DEPARTMENT OF AGRICULTURE
Office of Energy Policy and New Uses
7 CFR Part 2902
RIN 0503-AA34
Designation of Biobased Items for Federal Procurement
AGENCY: Departmental Management, USDA.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to
amend the Guidelines for Designating Biobased Products for Federal
Procurement (Guidelines) to add nine sections that will designate the
following items within which biobased products would be afforded
Federal procurement preference: Disposable tableware; expanded
polystyrene foam recycling products; heat transfer fluids; ink removers
and cleaners; mulch and compost materials; multipurpose lubricants;
office paper; topical pain relief products; and turbine drip oils. USDA
is also proposing minimum biobased contents for each of these items.
DATES: USDA will accept public comments on this proposed rule until
April 12, 2010.
ADDRESSES: You may submit comments by any of the following methods. All
submissions received must include the agency name and Regulatory
Information Number (RIN). The RIN for this rulemaking is 0503-AA34.
Also, please identify submittals as pertaining to the ``Proposed
Designation of Items.''
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: [email protected]. Include RIN number 0503-
AA34 and ``Proposed Designation of Items'' on the subject line. Please
include your name and address in your message.
Mail/commercial/hand delivery: Mail or deliver your
comments to: Ron Buckhalt, USDA, Office of Procurement and Property
Management, Room 361, Reporters Building, 300 7th St., SW., Washington,
DC 20024.
Persons with disabilities who require alternative means
for communication for regulatory information (Braille, large print,
audiotape, etc.) should contact the USDA TARGET Center at (202) 720-
2600 (voice) and (202) 690-0942 (TTY).
FOR FURTHER INFORMATION CONTACT: Ron Buckhalt, USDA, Office of
Procurement and Property Management, Room 361, Reporters Building, 300
7th St., SW., Washington, DC 20024; e-mail: [email protected];
phone (202) 205-4008. Information regarding the preferred procurement
program (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 Today's Proposed Rule
IV. Designation of Items, Minimum Biobased Contents, and Time Frame
A. Background
B. Items Proposed for Designation
C. Minimum Biobased Contents
D. Compliance Date for Procurement Preference and Incorporation
Into Specifications
V. Where Can Agencies Get More Information on These USDA-Designated
Items?
VI. 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 13132: Federalism
E. Unfunded Mandates Reform Act of 1995
F. Executive Order 12372: Intergovernmental Review of Federal
Programs
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Paperwork Reduction Act
I. e-Government Act
I. Authority
The designation of these items is proposed under the authority of
section 9002 of the Farm Security and Rural Investment Act of 2002
(FSRIA), as amended by the Food, Conservation, and Energy Act of 2008
(FCEA), 7 U.S.C. 8102 (referred to in this document as ``section
9002'').
II. Background
Section 9002 provides for the preferred procurement of biobased
products by Federal procuring agencies and is referred to hereafter in
this Federal Register notice as the ``preferred procurement program.''
The definition of ``procuring agency'' in section 9002 includes both
Federal agencies and ``a person that is a party to a contract with any
Federal agency, with respect to work performed under such a contract.''
Thus, Federal contractors, as well as Federal agencies, are expressly
subject to the procurement preference provisions of section 9002, as
amended in section 9002 of the 2008 Farm Bill.
The term ``item'' is used in the designation process to mean a
generic grouping of specific products that perform a similar function,
such as the various brands of crankcase oils or interior paints. Once
USDA designates an item, procuring agencies are required generally to
purchase biobased products within these designated items where the
purchase price of the procurement item exceeds $10,000 or where the
quantity of such items or the functionally equivalent items purchased
over the preceding fiscal year equaled $10,000 or more. Procuring
agencies must procure biobased products within each designated item
unless they determine that products within a designated item are not
reasonably available within a reasonable period of time, fail to meet
the reasonable performance standards of the procuring agencies, or are
available only at an unreasonable price. As stated in 7 CFR Part 2902--
``Guidelines for Designating Biobased Products for Federal
Procurement'' (Guidelines), biobased products that are merely
incidental to Federal funding are excluded from the preferred
procurement program; that is, 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. In implementing the
preferred procurement program for biobased products, procuring agencies
should follow their procurement rules and Office of Federal Procurement
Policy guidance on buying non-biobased products when biobased products
exist and should document exceptions taken for price, performance, and
availability.
USDA recognizes that the performance needs for a given application
are important criteria in making procurement decisions. USDA is not
requiring procuring agencies to limit their choices to biobased
products that fall under the items for designation in this proposed
rule. Rather, the effect of the designation of the items is to require
procuring agencies to determine their performance needs, determine
whether there are qualified biobased products that fall under the
designated items that meet the reasonable performance standards for
those needs, and purchase such qualified biobased products to the
maximum extent practicable as required by section 9002 of the 2002 Farm
Bill.
Section 9002(a)(3)(B) requires USDA to provide information to
procuring agencies on the availability, relative price, performance,
and environmental and public health benefits of such items and to
recommend where appropriate the minimum level of biobased content to be
contained in the procured products.
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It is the responsibility of the manufacturers to ``self-certify''
that each product being offered as a biobased product for preferred
procurement contains qualifying feedstock. USDA will develop a
monitoring process for these self-certifications to ensure
manufacturers are using qualifying feedstocks. If misrepresentations
are found, USDA will remove the subject biobased product from the
preferred procurement program and put a notice of this action on the
BioPreferred Web site.
Subcategorization. Most of the items USDA is considering for
designation for preferred procurement cover a wide range of products.
For some items, there are subgroups of products within the item that
meet different requirements, uses and/or different performance
specifications. For example, within the item category ``hand cleaners
and sanitizers,'' products that are used in medical offices may be
required to meet performance specifications for sanitizing, while other
products that are intended for general purpose hand washing may not
need to meet these specifications. Where such subgroups exist, USDA
intends to create subcategories. Thus, for example, for the item ``hand
cleaners and sanitizers,'' USDA has determined it is reasonable to
create a ``hand cleaner'' subcategory and a ``hand sanitizer''
subcategory. Sanitizing specifications would be applicable to the
latter subcategory, but not the former. In sum, USDA looks at the
products within each item category to evaluate whether there are
subgroups of products within the item that meet different performance
specifications and, where USDA finds this type of difference, it
intends to create subcategories with the minimum biobased content based
on the tested products within the subcategory.
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 deicing products are required to meet, but it has
information on only one type of deicing 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. Once USDA has received
sufficient additional information to justify the designation of a
subcategory, the subcategory will be designated through the proposed
and final rulemaking process.
USDA is not proposing to subcategorize any of the items being
proposed for designation in today's action. However, public comments
and additional data are being requested for several of the items and
subcategories may be created in a future proposed rulemaking.
Minimum Biobased Contents. The minimum biobased contents being
proposed with today's rule are based on products for which USDA has
biobased content test data. Because the submission of product samples
for biobased content testing is on a strictly voluntary basis, USDA was
able to obtain samples only from those manufacturers who volunteer to
invest the resources required to submit the samples.
In addition to considering the biobased content test data for each
item, USDA also considers other factors including product performance
information. USDA evaluates this information to determine whether some
products that may have a lower biobased content also have unique
performance or applicability attributes that would justify setting the
minimum biobased content at a level that would include these products.
For example, a lubricant product that has a lower biobased content than
others within an item but is formulated to perform over a wider
temperature range than the other products may be more desirable to
Federal agencies. Thus, it would be beneficial to set the minimum
biobased content for the item at a level that would include the product
with superior performance features.
USDA also considers the overall range of the tested biobased
contents within an item, groupings of similar values, and breaks
(significant gaps between two groups of values) in the biobased content
test data array. For example, the biobased contents of five tested
products within an item being proposed for designation today are 5, 22,
31, 82, and 85 percent. Because this is a very wide range, and because
there is a significant gap in the data between the 31 percent biobased
product and the 82 percent biobased product, USDA reviewed the product
literature to determine whether subcategories could be created within
this item. USDA found that the available product information did not
justify subcategorization. Further, USDA did not find any performance
claims that would justify setting the minimum biobased content based on
the 5, 22, or 31 percent biobased content products. Thus, USDA is
proposing to set the minimum biobased content for this item based on
the product with a tested biobased content of 82 percent. USDA believes
that this evaluation process allows it to establish minimum biobased
contents based on a broad set of factors to assist the Federal
procurement community in its decisions to purchase biobased products.
USDA makes every effort to obtain biobased content test data on
multiple products within each item. For most designated items, USDA has
biobased content test data on more than one product within a designated
item. However, in some cases, USDA has been able to obtain biobased
content data for only a single product within a designated item because
only one manufacturer volunteered to supply a sample for testing. As
USDA obtains additional data on the biobased contents for products
within these designated items and their subcategories, USDA will
evaluate whether the minimum biobased content for a designated item
will be revised. Where future revisions of established minimum biobased
contents are justified, such revisions will be announced in a proposed
rulemaking with an opportunity for public comment prior to finalizing
the rulemaking.
USDA anticipates that the minimum biobased content of an item that
is based on a single product is more likely to change as additional
products within that designated item are identified and tested. In
today's proposed rule, the minimum biobased contents for one of the
designated items (``expandable polystyrene foam recycling products'')
is based on a single tested product. Given that only two biobased
products have been identified in this item, and only one manufacturer
supplied a sample for testing, USDA believes it is reasonable to set a
minimum biobased content for this item based on the single data point.
Where USDA receives additional biobased content test data for
products within any of these proposed items during the public comment
period, USDA will take that information into consideration when
establishing the minimum biobased content when the items are designated
in the final rulemaking.
Overlap with EPA's Comprehensive Procurement Guideline program for
recovered content products under the Resource Conservation and Recovery
Act (RCRA) Section 6002. Some of the products that are biobased items
designated for preferred procurement under the preferred procurement
program may also be items the Environmental Protection Agency (EPA) has
designated under the EPA's Comprehensive Procurement Guideline (CPG)
for products containing recovered
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materials. In situations where it believes there may be an overlap,
USDA is asking manufacturers of qualifying biobased products to make
additional product and performance information available to Federal
agencies conducting market research to assist them in determining
whether the biobased products in question are, or are not, the same
products for the same uses as the recovered content products.
Manufacturers are asked to provide information highlighting the
sustainable features of their biobased products and to indicate the
various suggested uses of their product and the performance standards
against which a particular product has been tested. In addition,
depending on the type of biobased product, manufacturers are being
asked to provide other types of information, such as whether the
product contains fossil energy-based components (including petroleum,
coal, and natural gas) and whether the product contains recovered
materials. Federal agencies also may ask manufacturers for information
on a product's biobased content and its profile against environmental
and health measures and life-cycle costs (the ASTM Standard D7075,
``Standard Practice for Evaluating and Reporting Environmental
Performance of Biobased Products,'' or the Building for Environmental
and Economic Sustainability (BEES) analysis for evaluating and
reporting on environmental performance of biobased products). Federal
agencies may then use this information to make purchasing decisions
based on the sustainability features of the products. Detailed
information on ASTM Standard D7075, and other ASTM standards, can be
found on ASTM's Web site at http://www.astm.org. Information on the
BEES analytical tool can be found on the Web site http://www.bfrl.nist.gov/oae/software/bees.html.
Section 6002 of RCRA requires a procuring agency procuring an item
designated by EPA generally to procure such an item composed of the
highest percentage of recovered materials content practicable. However,
a procuring agency may decide not to procure such an item based on a
determination that the item fails to meet the reasonable performance
standards or specifications of the procuring agency. An item with
recovered materials content may not meet reasonable performance
standards or specifications, for example, if the use of the item with
recovered materials content would jeopardize the intended end use of
the item.
Where a biobased item is used for the same purposes and to meet the
same Federal agency performance requirements as an EPA-designated
recovered content product, the Federal agency must purchase the
recovered content product. For example, if a biobased hydraulic fluid
is to be used as a fluid in hydraulic systems and because ``lubricating
oils containing re-refined oil'' has already been designated by EPA for
that purpose, then the Federal agency must purchase the EPA-designated
recovered content product, ``lubricating oils containing re-refined
oil.'' If, on the other hand, that biobased hydraulic fluid is to be
used to address a Federal agency's certain environmental or health
performance requirements that the EPA-designated recovered content
product would not meet, then the biobased product should be given
preference, subject to reasonable price, availability, and performance
considerations.
This proposed rule designates three items for preferred procurement
for which there may also be an EPA-designated recovered content
product. The first item is mulch and compost materials, which are also
EPA-designated recovered content products ``hydraulic mulch products''
and ``compost materials'' under the ``landscaping products'' category
of products. The second item is multipurpose lubricants, which,
depending on how they are used, may be an EPA-designated recovered
content product ``re-refined lubricating oils.'' The third item is
office paper, which is an EPA-designated recovered content product
under the ``paper and paper products'' category of products. EPA
provides recovered materials content recommendations for these
recovered content products in a Recovered Materials Advisory Notice
(RMAN I). The RMAN recommendations for these CPG products can be found
by accessing EPA's Web site http://www.epa.gov/epaoswer/non-hw/procure/products.htm and then clicking on the appropriate product name.
Federal Government Purchase of Sustainable Products. The Federal
government's sustainable purchasing program includes the following
three statutory preference programs for designated products: the
BioPreferred Program, the Environmental Protection Agency's
Comprehensive Procurement Guideline for products containing recovered
materials, and the Environmentally Preferable Purchasing program. The
Office of the Federal Environmental Executive (OFEE) and the Office of
Management and Budget (OMB) encourage agencies to implement these
components comprehensively when purchasing products and services.
Procuring agencies should note that not all biobased products are
``environmentally preferable.'' For example, unless cleaning products
contain no or reduced levels of metals and toxic and hazardous
constituents, they can be harmful to aquatic life, the environment,
and/or workers. Household cleaning products that are formulated to be
disinfectants are required, under the Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA), to be registered with EPA and must meet
specific labeling requirements warning of the potential risks
associated with misuse of such products. When purchasing
environmentally preferable cleaning products, many Federal agencies
specify that products must meet Green Seal standards for institutional
cleaning products or that the products have been reformulated in
accordance with recommendations from the U.S. EPA's Design for the
Environment (DfE) program. Both the Green Seal standards and the DfE
program identify chemicals of concern in cleaning products. These
include zinc and other metals, formaldehyde, ammonia, alkyl phenol
ethoxylates, ethylene glycol ethers, and volatile organic compounds. In
addition, both require that cleaning products have neutral or less
caustic pH.
In contrast, some biobased products may be more environmentally
preferable than some products that meet Green Seal standards for
institutional cleaning products or that have been reformulated in
accordance with EPA's DfE program. To fully compare products, one must
look at the ``cradle-to-grave'' impacts of the manufacture, use, and
disposal of products. Biobased products that will be available for
preferred procurement under this program have been assessed as to their
``cradle-to-grave'' impacts.
One consideration of a product's impact on the environment is
whether (and to what degree) it introduces new fossil carbon into the
atmosphere. Fossil carbon is derived from non-renewable sources
(typically fossil fuels such as coal and oil), whereas renewable
biomass carbon is derived from renewable sources (biomass). Qualifying
biobased products offer the user the opportunity to manage the carbon
cycle and reduce the introduction of new fossil carbon into the
atmosphere.
Manufacturers of qualifying biobased products under the preferred
procurement program will be able to provide, at the request of Federal
agencies, factual information on environmental and human health effects
of their products, including the results
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of the ASTM D7075, or the comparable BEES analysis which examines 12
different environmental parameters, including human health. Therefore,
USDA encourages Federal procurement agencies to consider that USDA has
already examined all available information on the environmental and
human health effects of biopreferred products, when making their
purchasing decisions.
Other Preferred Procurement Programs. Federal procurement officials
should also note that biobased products may be available for purchase
by Federal agencies through the AbilityOne Program (formerly known as
the Javits-Wagner-O'Day (JWOD) program). Under this program, members of
organizations including the National Industries for the Blind (NIB) and
the National Institute for the Severely Handicapped (NISH) offer
products and services for preferred procurement by Federal agencies. A
search of the AbilityOne Program's online catalog (http://www.abilityone.gov) indicated that four of the items being proposed
today (``disposable tableware,'' ``mulch and compost materials,''
``multipurpose lubricants,'' and ``office paper'') are available
through the AbilityOne Program. While none of the specific products
within these items are identified in the JWOD online catalog as being
biobased products, it is possible that biobased products are available
or will be available in the future. Also, because additional categories
of products are frequently added to the AbilityOne Program, it is
possible that biobased products within other items being proposed for
designation today may be available through the AbilityOne Program in
the future. Procurement of biobased products through the AbilityOne
Program would further the objectives of both the AbilityOne Program and
the preferred procurement program.
Outreach. To augment its own research, USDA consults with industry
and Federal stakeholders to the preferred procurement program during
the development of the rulemaking packages for the designation of
items. USDA consults with stakeholders to gather information used in
determining the order of item designation and in identifying:
Manufacturers producing and marketing products that fall within an item
proposed for designation; performance standards used by Federal
agencies evaluating products to be procured; and warranty information
used by manufacturers of end user equipment and other products with
regard to biobased products.
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. Based on these results, USDA
will then propose new items for designation for preferred procurement.
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 certainty which items will be presented in
each of the future rulemakings. In response to comments from other
Federal agencies, USDA intends to give increased priority to those
items that contain the highest biobased content. In addition, as the
program matures, manufacturers of biobased products within some
industry segments have become more responsive to USDA's requests for
technical information than those in other segments. Thus, items with
high biobased content and for which sufficient technical information
can be obtained quickly may be added or moved up on the prioritization
list. USDA intends to update the list of items for future designation
on the Biopreferred Web site every six months, or more often if
significant changes are made to the list.
III. Summary of Today's Proposed Rule
USDA is proposing to designate the following items for preferred
procurement: Disposable tableware; expanded polystyrene (EPS) foam
recycling products; heat transfer fluids; ink removers and cleaners;
mulch and compost materials; multipurpose lubricants; office paper;
topical pain relief products; and turbine drip oils. USDA is also
proposing minimum biobased content for each of these items (see Section
IV.C). Lastly, USDA is proposing a date by which Federal agencies must
incorporate designated items into their procurement specifications (see
Section IV.D).
In today's proposed rule, USDA is providing information on its
findings as to the availability, economic and technical feasibility,
environmental and public health benefits, and life-cycle costs for each
of the designated items. Information on the availability, relative
price, performance, and environmental and public health benefits of
individual products within each of these items is not presented in this
notice. Further, USDA has reached an understanding with manufacturers
not to publish their names in conjunction with specific product data
published in the Federal Register when designating items. This
understanding was reached to encourage manufacturers to submit products
for testing to support the designation of an item. Once an item has
been designated, USDA will encourage the manufacturers of products
within the designated item to voluntarily make their names and other
contact information available for the BioPreferred Web site.
Warranties. Some of the items being proposed for designation today
may affect original equipment manufacturers' (OEMs) warranties for
equipment in which the items are used. For example, the manufacturer of
a piece of equipment that requires lubrication typically includes a
list of recommended lubricants in the owner/operator's manual that
accompanies the equipment when purchased. If the purchaser of the
equipment uses a lubricant (including a biobased lubricant) that is not
among the lubricants recommended by the equipment manufacturer, the
manufacturer may cite that as a reason not to honor the warranty on the
equipment. At this time, USDA does not have information available as to
the extent that OEMs have included, or will include, biobased products
among their recommended lubricants (or other similar operating
components). This does not necessarily mean that use of biobased
products will void warranties, only that USDA does not currently have
such information. USDA is requesting comments and information on this
topic, but cannot be held responsible if damage were to occur. USDA
encourages manufacturers of biobased products to test their products
against all relevant standards, including those that affect warranties,
and to work with OEMs to ensure that biobased products are accepted and
recommended for use. Whenever manufacturers of biobased products find
that existing performance standards for warranties are not relevant or
appropriate for biobased products, USDA is willing to assist them in
working with the appropriate OEMs to develop tests that are relevant
and appropriate for the end uses in which biobased products are
intended. In addition to outreach to biobased product manufacturers and
Federal agencies, USDA will, as time and resources allow, work with
OEMs on addressing any effect the use of biobased products may have on
their warranties. If, in spite of these efforts, there is insufficient
information regarding the use of a biobased product
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and its effect of warranties, the procurement agent would not be
required to buy such a product. As information is available on
warranties, USDA will make such information available on the
BioPreferred Web site. Updates to the BioPreferred Web site will occur
whenever new information is submitted.
Additional Information. USDA is working with manufacturers and
vendors to make all relevant product and manufacturer contact
information available on the BioPreferred Web site before a procuring
agency asks for it, in order to make the preferred program more
efficient. Steps USDA has implemented, or will implement, include:
Making direct contact with submitting companies through e-mail and
phone conversations to encourage completion of product listing;
coordinating outreach efforts with intermediate material producers to
encourage participation of their customer base; conducting targeted
outreach with industry and commodity groups to educate stakeholders on
the importance of providing complete product information; participating
in industry conferences and meetings to educate companies on program
benefits and requirements; and communicating the potential for expanded
markets beyond the Federal government, to include State and local
governments, as well as the general public markets. Section V provides
instructions to agencies on how to obtain this information on products
within these items through the following Web site: http://www.biopreferred.gov.
Comments. USDA invites comment on the proposed designation of these
items, including the definition, proposed minimum biobased content, and
any of the relevant analyses performed during the selection of these
items. In addition, USDA invites comments and information in the
following areas:
1. Three items (``mulch and compost materials,'' ``multipurpose
lubricants,'' and ``office paper'') may overlap with products
designated under EPA's Comprehensive Procurement Guideline for products
containing recovered material. To help procuring agencies in making
their purchasing decisions between biobased products within the
proposed designated items that overlap with products containing
recovered material, USDA is requesting product-specific information on
unique performance attributes, environmental and human health effects,
disposal costs, and other attributes that would distinguish biobased
products from products containing recovered material as well as non-
biobased products.
2. We have attempted to identify relevant and appropriate
performance standards and other relevant measures of performance for
each of the proposed items. If you know of other such standards or
relevant measures of performance for any of the proposed items, USDA
requests that you submit information identifying such standards and
measures, including their name (and other identifying information as
necessary), identifying who is using the standard/measure, and
describing the circumstances under which the product is being used.
3. Many biobased products within the items being proposed for
designation will have positive environmental and human health
attributes. USDA is seeking comments on such attributes in order to
provide additional information on the BioPreferred Web site. This
information will then be available to Federal procuring agencies and
will assist them in making informed sustainable procurement decisions.
When possible, please provide appropriate documentation to support the
environmental and human health attributes you describe.
4. Some items (e.g., ``disposable tableware,'' ``heat transfer
fluids,'' and ``ink removers and cleaners'') have wide ranges of tested
biobased contents. For the reasons discussed later in this preamble,
USDA is proposing minimum biobased content levels that would allow many
of the tested products to be eligible for preferred procurement. USDA
welcomes comments on the appropriateness of the proposed minimum
biobased contents for these items and whether there are potential
subcategories within the items that should be considered.
5. As discussed above, the effect that the use of biobased products
may have on original equipment manufacturers' warranties is uncertain.
USDA requests comments and supporting information on any aspect of this
issue.
6. Today's proposed rule is expected to have both positive and
negative impacts on 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 proposed 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. Because USDA has been unable to
determine the number of businesses, including small businesses, that
may be adversely affected by today's proposed rule, USDA requests
comment on how many small entities may be affected by this rule and on
the nature and extent of that effect.
All comments should be submitted as directed in the ADDRESSES
section above.
To assist you in developing your comments, the background
information used in proposing these items for designation has been
assembled in a technical support document, ``Technical Support for
Proposed Rule--Round 6 Designated Items,'' which 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 right side
of the BioPreferred Web site's home page (http://www.biopreferred.gov).
At the next screen, click on the Supporting Documentation link under
Round 6 Designated Items under the Proposed Regulations section. This
will bring you to the link to the technical support document.
IV. Designation of Items, Minimum Biobased Contents, and Time Frame
A. Background
In order to designate items for preferred procurement, section 9002
requires USDA to consider: (1) The availability of items and (2) the
economic and technological feasibility of using the items, including
the life-cycle costs of the items.
In considering an item's availability, USDA uses several sources of
information. USDA performs Internet searches, contacts trade
associations (such as the Bio organization) and commodity groups,
searches the Thomas Register (a database, used as a resource for
finding companies and products manufactured in North America,
containing over 173,000 entries), and contacts manufacturers and
vendors to identify those manufacturers and vendors with biobased
products within items being considered for designation. USDA uses the
results of these same searches to determine if an item is generally
available.
In considering an item's economic and technological feasibility,
USDA examines evidence pointing to the general commercial use of an
item and its life-cycle cost and performance characteristics. This
information is obtained from the sources used to assess an item's
availability. Commercial use, in turn, is evidenced by any manufacturer
and vendor information
[[Page 6801]]
on the availability, relative prices, and performance of their products
as well as by evidence of an item being purchased by a procuring agency
or other entity, where available. In sum, USDA considers an item
economically and technologically feasible for purposes of designation
if products within that item are being offered and used in the
marketplace.
In considering the life-cycle costs of items proposed for
designation, USDA has obtained the necessary input information (on a
voluntary basis) from manufacturers of biobased products and has used
the BEES analytical tool to analyze individual products within each
proposed item. The BEES analytical tool measures the environmental
performance and the economic performance of a product. The
environmental performance scores, impact values, and economic
performance results for products within the Round 6 designated items
analyzed using the BEES analytical tool can be found in ``Technical
Support for Proposed Rule--Round 6 Designated Items,'' located on the
BioPreferred Web site (http://www.biopreferred.gov).
In addition to the BEES analytical tool, manufacturers wishing to
make similar life-cycle information available may choose to use the
ASTM Standard D7075 analysis. The ASTM Standard D7075 product analysis
includes information on environmental performance, human health
impacts, and economic performance. USDA is working with manufacturers
and vendors to make this information available on the BioPreferred Web
site in order to make the preferred procurement program more efficient.
As discussed earlier, USDA has also implemented, or will implement,
several other steps intended to educate the manufacturers and other
stakeholders on the benefits of this program and the need to make this
information, including manufacturer contact information, available on
the BioPreferred Web site in order to then make it available to
procurement officials. Additional information on specific products
within the items proposed for designation may also be obtained directly
from the manufacturers of the products. USDA has also provided a link
on the BioPreferred Web site to the Defense Standardization Program and
to the General Services Administration (GSA)-related standards lists
used as guidance when procuring products. These lists can be accessed
through the ``Selling to the Federal Government'' link on the
BioPreferred Web site.
USDA recognizes that information related to the functional
performance of biobased products is a primary factor in making the
decision to purchase these products. USDA is gathering information on
industry standard test methods and performance standards that
manufacturers are using to evaluate the functional performance of their
products. (Test methods are procedures used to provide information on a
certain attribute of a product. For example, a test method might
determine how many bacteria are killed. Performance standards identify
the level at which a product must perform in order for it to be
``acceptable'' to the entity that set the performance standard. For
example, a performance standard might require that a certain percentage
(e.g., 95 percent) of the bacteria must be killed through the use of
the product.) The primary source of information on these test methods
and performance standards are manufacturers of biobased products within
these items. Additional test methods and performance standards are also
identified during meetings of the Interagency council and during the
review process for each proposed rule. We have listed, under the
detailed discussion of each item proposed for designation (presented in
Section IV.B), the functional performance test methods, performance
standards, product certifications, and other measures of performance
associated with the functional aspects of products identified during
the development of this Federal Register notice for these items.
While this process identifies many of the relevant test methods and
standards, USDA recognizes that those identified herein do not
represent all of the methods and standards that may be applicable for a
designated item or for any individual product within the designated
item. As noted earlier in this preamble, USDA is requesting
identification of other relevant performance standards and measures of
performance. As the program becomes fully implemented, these and other
additional relevant performance standards will be available on the
BioPreferred Web site.
In gathering information relevant to the analyses discussed above
for this proposed rule, USDA has made extensive efforts to contact and
request information and product samples within the items proposed for
designation. For product information, USDA has attempted to contact
representatives of the manufacturers of biobased products identified by
the preferred procurement program. For product samples on which to
conduct biobased content tests and BEES analysis, USDA has attempted to
obtain samples and BEES input information for at least five different
suppliers of products within each item in today's proposed rule.
However, because the submission of information and samples is on a
strictly voluntary basis, USDA was able to obtain information and
samples only from those manufacturers who volunteer to invest the
resources required to gather and submit the information and samples.
The data presented are all the data that were submitted in response to
USDA requests for information from manufacturers of the products within
the items proposed for designation. While USDA would prefer to have
complete data on the full range of products within each item, the data
that were submitted support designation of the items in today's
proposed rule.
To propose an item for designation, USDA must have sufficient
information on a sufficient number of products within an item to be
able to assess its availability and its economic and technological
feasibility, including its life-cycle costs. For some items, there may
be numerous products available. For other items, there may be very few
products currently available. Given the infancy of the market for some
items, it is not unexpected that even single-product items will be
identified. Further, given that the intent of section 9002 is largely
to stimulate the production of new biobased products and to energize
emerging markets for those products, USDA has determined it is
appropriate to designate an item or subcategory for preferred
procurement even when there is only a single product with a single
supplier. However, USDA has also determined that in such situations it
is appropriate to defer the effective preferred procurement date until
such time that more than one supplier is identified in order to provide
choice to procuring agencies. Similarly, the documented availability,
benefits, and life-cycle costs of even a very small percentage of all
products that may exist within an item are also considered sufficient
to support designation.
B. Items Proposed for Designation
USDA uses a model (as summarized below) to identify and prioritize
items for designation. Through this model, USDA has identified over 100
items for potential designation under the preferred procurement
program. A list of these items and information on the model can be
accessed on the BioPreferred Web site at http://www.biopreferred.gov.
In general, items are developed and prioritized for designation by
evaluating
[[Page 6802]]
them against program criteria established by USDA and by gathering
information from other government agencies, private industry groups,
and manufacturers. These evaluations begin by looking at the cost,
performance, and availability of products within each item. USDA then
considers the following points:
Are there manufacturers interested in providing the
necessary test information on products within a particular item?
Are there a number of manufacturers producing biobased
products in this item?
Are there products available in this item?
What level of difficulty is expected when designating this
item?
Is there Federal demand for the product?
Are Federal procurement personnel looking for biobased
products?
Will an item create a high demand for biobased feed stock?
Does manufacturing of products within this item increase
potential for rural development?
After completing this evaluation, USDA prioritizes the list of
items for designation. USDA then gathers information on products within
the highest priority items and, as sufficient information becomes
available for a group of items, a new rulemaking package is developed
to designate the items within that group. USDA points out that the list
of items may change, with items being added or dropped, and that the
order in which items are proposed for designation is likely to change
because the information necessary to designate an item may take more
time to obtain than an item lower on the list.
In today's proposed rule, USDA is proposing to designate the
following items for the preferred procurement program: Disposable
tableware; EPS foam recycling products; heat transfer fluids; ink
removers and cleaners; mulch and compost materials; multipurpose
lubricants; office paper; topical pain relief products; and turbine
drip oils. USDA has determined that each of these items meets the
necessary statutory requirements--namely, that they are being produced
with biobased products and that their procurement by procuring agencies
will carry out the following objectives of section 9002:
To increase demand for biobased products, which would in
turn increase demand for agricultural commodities that can serve as
feedstocks for the production of 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.
Further, USDA has sufficient information on these items to
determine their availability and to conduct the requisite analyses to
determine their biobased content and their economic and technological
feasibility, including life-cycle costs.
Overlap with EPA's Comprehensive Procurement Guideline program for
recovered content products. In today's proposed rule, three items being
designated for preferred procurement may overlap with EPA-designated
recovered content products. The first item is ``mulch and compost
materials,'' which may overlap with the EPA-designated recovered
content products ``hydraulic mulch products'' and ``compost materials''
under the ``landscaping products'' category of products. The second
item is ``multipurpose lubricants,'' which, depending on how they are
used, may overlap with the EPA-designated recovered content product
``re-refined lubricating oils.'' The third item is ``office paper,''
which may overlap with the EPA-designated recovered content products
under the ``paper and paper products'' category of products.
For these items, USDA is requesting that information on qualifying
biobased products be made available by their manufacturers to assist
Federal agencies in determining if an overlap exists between the
biobased products and the applicable EPA-designated recovered content
products. USDA is requesting this information on overlap situations to
further help procuring agencies make informed decisions when faced with
purchasing a recovered content material product or a biobased product.
As this information is developed, USDA will make it available on the
BioPreferred Web site.
Exemptions. Products used in spacecraft systems and launch support
applications and military equipment used in combat and combat-related
applications are exempt from the biobased product procurement
preference, but agencies may purchase biobased products wherever
performance, availability and reasonable price indicates that such
purchases are justified.
Although each item in today's proposed rule would be exempt from
the procurement preference requirement when used in spacecraft systems
or launch support application or in military equipment used in combat
and combat-related applications, this exemption does not extend to
contractors performing work other than direct maintenance and support
of the spacecraft or launch support equipment or combat or combat-
related missions. For example, if a contractor is painting the interior
of a non-combat office building on a military base, the interior paint
the contractor purchases and uses in the office building should be a
biobased interior paint (provided it meets the specifications for the
designated item ``interior paints and coatings''). The exemption does
apply, however, if the product being purchased by the contractor is for
use in combat or combat-related missions or for use in space or launch
applications. After reviewing the regulatory requirement and their
contract, where a contractor has any question on the exemption, they
should contact the cognizant contracting officer.
USDA points out that it is not the intent of these exemptions to
imply that biobased products are inferior to non-biobased products. If
manufacturers of biobased products can meet the concerns of these two
agencies, USDA is willing to reconsider such exemptions on an item-by-
item basis. Any changes to the current exemptions would be announced in
a proposed rule amendment with an opportunity for public comment.
The proposed designated items are discussed in the following
sections.
1. Disposable Tableware (Minimum Biobased Content 72 Percent) \1\
---------------------------------------------------------------------------
\1\ Additional information on the determination of minimum
biobased contents is presented in Section IV.C of this preamble.
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Disposable tableware is one-time-use drink ware and dishware,
including cups, plates, bowls, and serving platters used for dining.
USDA identified 19 different manufacturers and suppliers of 65
biobased disposable tableware products. These 19 manufacturers and
suppliers do not necessarily include all manufacturers and suppliers of
biobased disposable tableware, merely those identified during USDA
information gathering activities. Relevant product information supplied
by these manufacturers and suppliers indicates that these products are
being used commercially. In addition, manufacturers and stakeholders
identified two performance standards and one product certification (as
shown below) used in evaluating products within this item. While there
may be additional performance standards, as
[[Page 6803]]
well as test methods, product certifications, and other measures of
performance applicable to products within this item, those identified
by manufacturers of product within this item are:
Performance Standards
ASTM D6400, ``Standard Specification for Compostable
Plastics;'' and
ASTM D6868, ``Standard Specification for Biodegradable
Plastics Used as Coatings on Paper and Other Compostable Substrates.''
Product Certifications and Other Measures
Biodegradable Products Institute certified compostable
plastic products will biodegrade and compost satisfactorily in actively
managed compost facilities.
USDA contacted procurement officials with various policy-making and
procuring agencies including GSA, several offices within the Defense
Logistics Agency, OFEE, USDA Departmental Administration, the National
Park Service, EPA, Oak Ridge National Laboratory, and OMB in an effort
to gather information on the purchases of disposable tableware and
products within the other eight items proposed for designation today.
Communications with these officials led to the conclusion that
obtaining credible current usage statistics and specific potential
markets within the Federal government for biobased products within the
nine proposed designated items is not possible at this time.
Most of the contacted officials reported that procurement data are
reported in higher level groupings of materials and supplies than the
proposed designated items. Using terms that best match the items in
today's proposed rule, USDA queried the GSA database for Federal
purchases of products within today's proposed items. The results
indicate purchases of products within items in today's proposed rule.
The results of this inquiry can be found in the technical support
document for this proposed rule. Also, the purchasing of such materials
as part of contracted services and with individual purchase cards used
to purchase products locally further obscures credible data on
purchases of specific products.
USDA also investigated the Web site FEDBIZOPPS.gov, a site which
lists Federal contract purchase opportunities greater than $25,000. The
information provided on this Web site, however, is for broad categories
of products rather than the specific types of products that are
included in today's proposed rule. Therefore, USDA has been unable to
obtain data on the amount of disposable tableware purchased by
procuring agencies. However, Federal agencies routinely procure such
products and contract for food preparation services involving the use
of such products. Thus, they have a need for disposable tableware and
for services that use disposable tableware. Designation of ``disposable
tableware'' will promote the use of biobased products, furthering the
objectives of this program.
An analysis of the environmental and human health benefits and the
life-cycle costs of biobased disposable tableware was performed for one
of the products using the BEES analytical tool. The results of that
analysis are presented in the TSD for the Round 6 items, which can be
found on the BioPreferred Web site.
2. Expanded Polystyrene (EPS) Foam Recycling Products (Minimum Biobased
Content 90 Percent)
These are products formulated to dissolve EPS foam (examples would
include foam coolers, hot drink cups, and flotation devices) to reduce
the volume of recycled or discarded EPS foam items. The products are
sprayed on the EPS foam, which is quickly dissolved into a concentrated
material that can then be recycled or landfilled. The primary uses of
these products are in recycling operations and construction/demolition
projects.
USDA identified two manufacturers and one supplier of two biobased
EPS foam recycling products. These manufacturers and supplier do not
necessarily include all manufacturers of biobased EPS foam recycling
products, merely those identified during USDA information gathering
activities. Information supplied by the manufacturers and supplier
indicates that these products are being used commercially. However,
manufacturers and stakeholders contacted by USDA did not identify any
applicable performance standards, test methods, or other industry
measures of performance against which these products have been tested.
USDA points out that the lack of identified performance standards is
not relevant to the designation of an item for preferred procurement
because it is not one of the criteria section 9002 requires USDA to
consider in order to designate an item for preferred procurement. If
and when performance standards, test methods, product certifications,
and other relevant measures of performance are identified for this
item, USDA will provide such information on the BioPreferred Web site.
USDA attempted to gather data on the potential market for biobased
products within the Federal government using the procedure described in
the section on ``disposable tableware.'' These attempts were largely
unsuccessful. USDA is aware that products used for recycling EPS foam
represent a developing application that will be working into the market
and that there are many potential applications where Federal facilities
could benefit from this technology. For example, at this time, there is
a project on the Lake of the Ozarks (Corps of Engineers) to recycle EPS
foam from boat docks to prevent the material from getting into the
power generation plants. Thus, USDA believes that designation of ``EPS
foam recycling products'' will promote the use of biobased products,
furthering the objectives of this program.
An analysis of the environmental and human health benefits and the
life-cycle costs of biobased EPS foam recycling products was performed
for one of the products using the BEES analytical tool. The results of
that analysis are presented in the TSD for the Round 6 items, which can
be found on the BioPreferred Web site.
3. Heat Transfer Fluids (Minimum Biobased Content 89 Percent)
Heat transfer fluids are products with high thermal capacities used
to facilitate the transfer of heat from one location to another,
including coolants or refrigerants for use in HVAC applications,
internal combustion engines, personal cooling devices, thermal energy
storage, or other heating or cooling closed-loops.
USDA identified five manufacturers and suppliers of six heat
transfer fluids. These five manufacturers and suppliers do not
necessarily include all manufacturers and suppliers of heat transfer
fluids, merely those identified during USDA information gathering
activities. Information supplied by these manufacturers and suppliers
indicates that these products are being used commercially. However,
manufacturers and stakeholders contacted by USDA did not identify any
performance standards, test methods, or applicable industry measures of
performance against which these products have been tested. As noted
earlier in this preamble, the lack of identified performance standards
is not relevant to the designation of an item for preferred procurement
because it is not one of the criteria section 9002 requires USDA to
consider in order to designate an item for preferred procurement. If
and when performance standards, test methods, and other relevant
measures of
[[Page 6804]]
performance are identified for this item, USDA will provide such
information on the BioPreferred Web site.
USDA attempted to gather data on the potential market for heat
transfer fluids within the Federal government as discussed in the
section on ``disposable tableware.'' These attempts were largely
unsuccessful. However, most Federal agencies routinely perform, or
procure services to perform, activities that use these products. Thus,
they have a need for heat transfer fluids and for services that require
the use of heat transfer fluids. Designation of ``heat transfer
fluids'' will promote the use of biobased products, furthering the
objectives of this program.
An analysis of the environmental and human health benefits and the
life-cycle costs of biobased heat transfer fluids was performed for two
of the products using the BEES analytical tool. The results of those
analyses are presented in the TSD for the Round 6 items, which can be
found on the BioPreferred Web site.
4. Ink Removers and Cleaners (Minimum Biobased Content 79 Percent)
Ink removers and cleaners are chemicals used for removing ink,
haze, glaze, and other residual ink contaminants from ink presses,
rollers, and other equipment used in the printing and textile
industries.
USDA identified nine manufacturers and suppliers of 15 biobased ink
removers and cleaners. These nine manufacturers and suppliers do not
necessarily include all manufacturers and suppliers of biobased ink
removers and cleaners, merely those identified during USDA information
gathering activities. Information supplied by these manufacturers and
suppliers indicates that these products are being used commercially.
However, manufacturers and stakeholders contacted by USDA did not
identify any applicable performance standards, test methods, or other
industry measures of performance against which these products have been
tested. As noted earlier in this preamble, the lack of identified
performance standards is not relevant to the designation of an item for
preferred procurement because it is not one of the criteria section
9002 requires USDA to consider in order to designate an item for
preferred procurement. If and when performance standards, test methods,
product certifications, and other relevant measures of performance are
identified for this item, USDA will provide such information on the
BioPreferred Web site.
USDA attempted to gather data on the potential market for biobased
products within the Federal government as discussed in the section on
``disposable tableware.'' These attempts were largely unsuccessful.
However, Federal agencies (e.g., Bureau of Engraving and Printing) have
ink presses and similar equipment that would be cleaned with such
products. In addition, such Federal agencies may contract for cleaning
services that would use such products. Thus, they have a need for ink
removers and cleaners and for services that require the use of ink
removers and cleaners. Designation of ``ink removers and cleaners''
will promote the use of biobased products, furthering the objectives of
this program.
An analysis of the environmental and human health benefits and the
life-cycle costs of biobased ink removers and cleaners was performed
for one of the products using the BEES analytical tool. The results of
that analysis are presented in the TSD for the Round 6 items, which can
be found on the BioPreferred Web site.
5. Mulch and Compost Materials (Minimum Biobased Content 95 Percent)
Mulch is a protective covering placed atop the soil, primarily to
keep down weeds and to improve the appearance of landscaping. Compost
is the aerobically decomposed remnants of organic materials used in
gardening and agriculture as a soil amendment, and commercially by the
landscaping and container nursery industries.
USDA identified 67 manufacturers and suppliers of 232 mulch and
compost materials. These 67 manufacturers and suppliers do not
necessarily include all manufacturers of mulch and compost materials,
merely those identified during USDA information gathering activities.
Information supplied by the manufacturers and suppliers indicates that
these products are being used commercially. In addition, manufacturers
and stakeholders identified three test methods (as shown below) used in
evaluating products within this item. While other test methods and
measures of performance, as well as performance standards, applicable
to products within this item may exist, the three test methods
identified by manufacturers of products within this item and by others
are:
Test Methods
ASTM International C16 Standard Test Method for Load
Testing Refractory Shapes at High Temperatures;
ASTM International D18 Standard Test Method for Sieve
Analysis of Fine and Coarse Aggregates; and
ASTM International D790 Standard Test Methods for Flexural
Properties of Unreinforced and Reinforced Plastics and Electrical
Insulating Materials.
USDA attempted to gather data on the potential market for mulch and
compost materials within the Federal government using the procedure
described in the section on ``disposable tableware.'' These attempts
were largely unsuccessful. However, many Federal agencies routinely
perform activities that use these products. In addition, many Federal
agencies contract for activities involving the use of such products.
Thus, they have a need for mulch and compost materials and for services
that use mulch. Designation of ``mulch and compost materials'' will
promote the use of biobased products, furthering the objectives of this
program.
An analysis of the environmental and human health benefits and the
life-cycle costs of biobased mulch and compost materials was performed
for one of the products using the BEES analytical tool. The results of
that analysis are presented in the TSD for the Round 6 items, which can
be found on the BioPreferred Web site.
6. Multipurpose Lubricants (Minimum Biobased Content 88 Percent)
Multipurpose lubricants are products designed to reduce friction or
rust in a variety of industrial settings. Products within this item are
typically in liquid form. Greases, which are lubricants composed of
oils thickened to a semisolid or solid consistency using soaps,
polymers or other solids, or other thickeners, are not included in this
item. In addition, as proposed, task-specific lubricants, such as chain
and cable lubricants and gear lubricants, would not be included in this
item.
Qualifying products within this item may overlap with the EPA-
designated recovered content product: ``Re-refined lubricating oils.''
USDA identified 16 manufacturers and suppliers of 27 biobased
multipurpose lubricant products. These 16 manufacturers and suppliers
do not necessarily include all manufacturers and suppliers of biobased
multipurpose lubricants, merely those identified during USDA
information gathering activities. Information supplied by these
manufacturers and suppliers indicates that these products are being
used commercially. In addition, manufacturers and stakeholders
identified several test methods and other measures of performance (as
[[Page 6805]]
shown below) used in evaluating products within this item. While other
test methods and other measures of performance, as well as product
certifications, and performance standards, applicable to products
within this item may exist, those test methods and other measures of
performance identified by manufacturers of products within this item
and by others are:
Test Methods
ASTM D1748, ``Standard Test Method for Rust Protection By
Metal Preservatives in the Humidity Cabinet;''
ASTM D2266, ``Standard Test Method for Wear Preventive
Characteristics of Lubricating Grease (Four Ball Method);''
ASTM D130, ``Standard Test Method for Corrosiveness to
Copper from Petroleum Products by Copper Strip Test;''
ASTM D482, ``Standard Test Method for Ash from Petroleum
Products;''
ASTM D5864, ``Standard Test Method for Determining Aerobic
Aquatic Biodegradation of Lubricants or Their Components;''
ASTM D665, ``Standard Test Method for Rust-Preventing
Characteristics of Inhibited Mineral Oil in the Presence of Water;''
ASTM D92, ``Standard Test Method for Flash and Fire Points
by Cleveland Open Cup Tester;''
ASTM D97, ``Standard Test Method for Pour Point of
Petroleum Products;''
ASTM D972, ``Standard Test Method for Evaporative Loss of
Lubricating Greases and Oils;'' and
Vickers I-286-S Tests for pump wear.
Product Certifications and Other Measures
API GL-1 Service Designation denotes lubricants intended
for manual transmissions operating under such mild conditions that
straight petroleum or refined petroleum oil may be used satisfactorily;
ISO 32 Calibration in analytical chemistry and use of
certified reference materials;
ISO 68 International Standards Organization Viscosity
Guide; and
Society of Automotive Engineers SAE 30 J300 Engine Oil
Viscosity Classification.
USDA attempted to gather data on the potential market for biobased
products within the Federal government as discussed in the section on
``disposable tableware.'' These attempts were largely unsuccessful.
However, many Federal agencies routinely perform, or procure contract
services to perform, activities that use machinery that requires
multipurpose lubricants. Thus, they have a need for multipurpose
lubricants. Designation of ``multipurpose lubricants'' will promote the
use of biobased products, furthering the objectives of this program.
An analysis of the environmental and human health benefits and the
life-cycle costs of biobased multipurpose lubricants was performed for
two of the products using the BEES analytical tool. The results of
those analyses are presented in the TSD for the Round 6 items, which
can be found on the BioPreferred Web site.
7. Office Paper (Minimum Biobased Content 95 Percent)
Office paper products are papers used in office printer and copier
applications, writing, and coated papers for publications.
USDA identified 13 manufacturers and suppliers of 20 different
biobased office papers. These 13 manufacturers and suppliers do not
necessarily include all manufacturers and suppliers of biobased office
paper, merely those identified during USDA information gathering
activities. Information supplied by these manufacturers and suppliers
indicates that these products are being used commercially. In addition,
manufacturers and stakeholders identified one performance standard (as
shown below) used in evaluating products within this item. While other
test methods and measures of performance, as well as performance
standards, applicable to products within this item may exist, the
performance standard identified by manufacturers of products within
this item and by others is:
Performance Standard
JCP A230 Printing Paper--High Yield Coated Opaque Offset
(Light Coating).
USDA attempted to gather data on the potential market for office
paper within the Federal government as discussed in the section on
``disposable tableware.'' These attempts were largely unsuccessful.
However, Federal agencies routinely perform activities that require the
use of office paper. In addition, many Federal agencies contract for
activities involving the use of such products. Thus, they have a need
for office paper and for services that require the use of such
products. Designation of ``office paper'' will promote the use of
biobased products, furthering the objectives of this program.
An analysis of the environmental and human health benefits and the
life-cycle costs of biobased office papers was performed for one of the
products using the BEES analytical tool. The results of that analysis
are presented in the TSD for the Round 6 items, which can be found on
the BioPreferred Web site.
8. Topical Pain Relief Products (Minimum Biobased Content 91 Percent)
Topical pain relief products are balms, creams and other topical
treatments for the relief of muscle, joint, headache, and nerve pain,
as well as sprains, bruises, swelling, and other aches.
USDA identified 30 manufacturers of 48 biobased packaging material
products. The 30 manufacturers do not necessarily include all
manufacturers of biobased topical pain relief products, merely those
identified during USDA information gathering activities. Information
supplied by these manufacturers indicates that these products are being
used commercially. However, manufacturers and stakeholders contacted by
USDA did not identify any applicable performance standards, test
methods, or other industry measures of performance against which these
products have been tested. USDA points out that the lack of identified
performance standards is not relevant to the designation of an item for
preferred procurement because it is not one of the criteria section
9002 requires USDA to consider in order to designate an item for
preferred procurement. If and when performance standards, test methods,
and other relevant measures of performance are identified for this
item, USDA will provide such information on the BioPreferred Web site.
USDA attempted to gather data on the potential market for topical
pain relief products within the Federal government as discussed in the
section on ``disposable tableware.'' These attempts were largely
unsuccessful. However, most Federal agencies routinely use, and procure
services that use topical pain relief products. Thus, they have a need
for topical pain relief products and for services that require the use
of topical pain relief products. Designation of ``topical pain relief
products'' will promote the use of biobased products, furthering the
objectives of this program.
An analysis of the environmental and human health benefits and the
life-cycle costs of biobased topical pain relief products was performed
for two of the products using the BEES analytical tool. The results of
those analyses are presented in the TSD for the Round 6 items, which
can be found on the BioPreferred Web site.
[[Page 6806]]
9. Turbine Drip Oils (Minimum Biobased Content 87 Percent)
Turbine drip oils are lubricants for use in drip lubrication
systems for water well line shaft bearings, water turbine bearings for
irrigation pumps, and other turbine bearing applications.
USDA identified four manufacturers and suppliers of four different
biobased turbine drip oils. These four manufacturers and suppliers do
not necessarily include all manufacturers and suppliers of biobased
turbine drip oils, merely those identified during USDA information
gathering activities. Information supplied by these manufacturers and
suppliers indicates that these products are being used commercially. In
addition, manufacturers and stakeholders identified nine test methods
(as shown below) used in evaluating products within this item. While
other test methods and measures of performance, as well as performance
standards, applicable to products within this item may exist, the nine
test methods identified by manufacturers of products within this item
and by others are:
Test Methods
ASTM International D2619 Standard Test Method for
Hydrolytic Stability of Hydraulic Fluids (Beverage Bottle Method);
ASTM International D2983 Standard Test Method for Low-
Temperature Viscosity of Lubricants Measured by Brookfield Viscometer;
ASTM International D5864 Standard Test Method for
Determining Aerobic Aquatic Biodegradation of Lubricants or Their
Components;
ASTM International D665 Standard Test Method for Rust-
Preventing Characteristics of Inhibited Mineral Oil in the Presence of
Water;
ASTM International D892 Standard Test Method for Foaming
Characteristics of Lubricating Oils;
International Organization for Standardization ISO 32 Oil
Viscosity Grade;
International Organization for Standardization ISO 46 Oil
Viscosity Grade;
Society of Automotive Engineers SAE 10W20 J300 Engine Oil
Viscosity Classification; and
Society of Automotive Engineers SAE 10W30 J300 Engine Oil
Viscosity Classification.
USDA attempted to gather data on the potential market for turbine
drip oils within the Federal government as discussed in the section on
``disposable tableware.'' These attempts were largely unsuccessful.
However, Federal agencies have facilities that require the use of
turbine drip oils. In addition, Federal agencies may procure contract
maintenance services that require the use of turbine drip oils. Thus,
they have a need for turbine drip oils and for services that require
the use of such products. Designation of ``turbine drip oils'' will
promote the use of biobased products, furthering the objectives of this
program.
An analysis of the environmental and human health benefits and the
life-cycle costs of biobased turbine drip oils was performed for one of
the products using the BEES analytical tool. The results of that
analysis are presented in the TSD for the Round 6 items, which can be
found on the BioPreferred Web site.
C. Minimum Biobased Contents
USDA has determined that setting a minimum biobased content for
designated items is appropriate. Establishing a minimum biobased
content will encourage competition among manufacturers to develop
products with higher biobased contents and will prevent products with
de minimis biobased content from being purchased as a means of
satisfying the requirements of section 9002. USDA believes that it is
in the best interest of the preferred procurement program for minimum
biobased contents to be set at levels that will realistically allow
products to possess the necessary performance attributes and allow them
to compete with non-biobased products in performance and economics.
Setting the minimum biobased content for an item at a level met by
several of the tested products will provide more products from which
procurement officials may choose, will encourage the most widespread
usage of biobased products by procuring agencies, and is expected to
accomplish the objectives of section 9002.
As discussed in Section IV.A of this preamble, USDA relied entirely
on manufacturers' voluntary submission of samples to support the
proposed designation of these items. The data presented in the
following paragraphs are the test results from all of the product
samples that were submitted for analysis.
As a result of public comments received on the first designated
items rulemaking proposal, USDA decided to account for the slight
imprecision in the analytical method used to determine biobased content
of products when establishing the minimum biobased content. Thus,
rather than establishing the minimum biobased content for an item at
the tested biobased content of the product selected as the basis for
the minimum value, USDA is establishing the minimum biobased content at
a level three (3) percentage points less than the tested value. USDA
believes that this adjustment is appropriate to account for the
expected variations in analytical results.
USDA encourages procuring agencies to seek products with the
highest biobased content that is practicable in all of the proposed
designated items. To assist the procuring agencies in determining which
products have the highest biobased content, USDA will update the
information in the biobased products catalog to include the biobased
content of each product. Those products within each designated item
that have the highest biobased content will be listed first and others
will be listed in descending order. USDA is specifically requesting
comments on the proposed minimum biobased contents of designated items
and also requests additional data that can be used to re-evaluate the
appropriateness of the proposed minimum biobased contents. As the
market for biobased products develops and USDA obtains additional
biobased content data, it will re-evaluate the established minimum
biobased contents of designated items and consider raising them
whenever justified.
The following paragraphs summarize the information that USDA used
to propose minimum biobased contents within each proposed designated
item.
1. Disposable Tableware
Ten of the 65 biobased disposable tableware products identified
have been tested for biobased content using ASTM D6866.\2\ The biobased
contents of these 10 biobased disposable tableware ranged from 32
percent to 100 percent, as follows: 32, 75, 90, 92, 98, and 100 percent
(five products).
---------------------------------------------------------------------------
\2\ ASTM D6866, ``Standard Test Methods for Determining the
Biobased Content of Natural Range Materials Using Radiocarbon and
Isotope Ratio Mass Spectrometry Analysis,'' is used to distinguish
between carbon from fossil resources (non-biobased carbon) and
carbon from renewable sources (biobased carbon). The biobased
content is expressed as the percentage of total carbon that is
biobased carbon.
---------------------------------------------------------------------------
Considering that the range of biobased contents is large and there
is a significant gap in the data points between the 32 and 75 percent
biobased products, USDA evaluated the information available on these
products to determine if there was justification for creating
subcategories. USDA considered the possibility of creating
subcategories based on product performance (e.g., high temperature
versus cold temperature applications),
[[Page 6807]]
formulation, biodegradability characteristics, or product function
(e.g., plates, bowls, cups, cup lids). However, USDA found that there
was not sufficient information to create subcategories. USDA also found
no unique features found in the 32 percent biobased product that would
justify considering that product when setting the minimum biobased
content for the item. USDA requests that manufacturers provide
information on the product characteristics mentioned above. If
sufficient supporting data can be obtained, USDA will consider creating
subcategories within this item in the final rule. Because of the lack
of supporting data for subcategorization at this time, USDA is
proposing to set the minimum biobased content for disposable tableware
at 72 percent, based on the product with a tested biobased content of
75 percent.
2. EPS Foam Recycling Products
One of the two biobased EPS foam recycling products identified has
been tested for biobased content using ASTM D6866. The biobased content
of this EPS foam recycling product was 93 percent. USDA believes that
this product adequately represents currently available products within
this item and is, therefore, proposing to set the minimum biobased
content for this item at 90 percent, based on the one tested product.
3. Heat Transfer Fluids
Three of the six biobased heat transfer fluids identified have been
tested for biobased content using ASTM D6866. The biobased contents of
these three biobased heat transfer fluids range from 37 percent to 99
percent as follows: 37, 92, and 99 percent. There is a significant
break between the 37 percent biobased product and the 92 percent
product, and USDA found no performance features claimed for the 37
percent product that justified setting the minimum biobased content
based on that product. Because the biobased contents of the remaining
two products are within a narrow range, USDA is proposing to set the
minimum biobased content for heat transfer fluids at 89 percent, based
on the product with a tested biobased content of 92 percent.
4. Ink Removers and Cleaners
Five of the 15 biobased ink removers and cleaners identified have
been test for biobased content using ASTM D6866. The biobased contents
of these five biobased ink removers and cleaners are 5, 22, 31, 82, and
85 percent.
The tested biobased contents of the five products, as shown above,
range from 5 to 85 percent. Because this is a very wide range, and
because there is a significant gap in the data between the 31 percent
biobased product and the 82 percent biobased product, USDA reviewed the
product literature to determine whether subcategories could be created
within this item. USDA found that the available product information did
not justify subcategorization. Further, USDA did not find any
performance claims that would justify setting the minimum biobased
content based on the 5, 22, or 31 percent biobased content products.
Thus, USDA is proposing to set the minimum biobased content for this
item at 79 percent, based on the product with a tested biobased content
of 82 percent. While USDA does not currently have data to support
subcategories within this item, we continue to question whether
products designed for continuous cleaning operations and those designed
for infrequent use (such as in periodic maintenance) should be in
different subcategories. USDA requests that manufacturers of products
within this item provide information regarding the need to create
subcategories within this item.
5. Mulch and Compost Materials
Seven of the 232 biobased mulch and compost materials identified
have been tested for biobased content using ASTM D6866. The biobased
contents of these seven biobased mulch and compost materials ranged
from 98 percent to 100 percent, as follows: 98, 98, 100, 100, 100, 100,
and 100.
Because the biobased contents of the seven products are within a
narrow range, USDA is proposing to set the minimum biobased content for
mulch and compost materials at 95 percent, based on the two products
with tested biobased contents of 98 percent.
6. Multipurpose Lubricants
Four of the 30 biobased multipurpose lubricants identified have
been tested for biobased content using ASTM D6866. The biobased
contents of these four biobased multipurpose lubricants ranged from 91
percent to 100 percent as follows: 91, 93, 100, and 100 percent.
Because the range of biobased contents among the tested products is
so small, USDA is proposing to set the minimum biobased content for
this item at 88 percent based on the product with a tested biobased
content of 91 percent.
7. Office Paper
Seven of the 20 biobased office paper products identified have been
tested for biobased content using ASTM D6866. The biobased contents of
these seven biobased office paper products range from 98 to 100
percent, as follows: 98, 99, 100, 100, 100, 100 and 100 percent.
Because the range of these seven values is very narrow, USDA is
proposing to set the minimum biobased content for this item at 95
percent, based on the product with a tested biobased content of 98
percent.
8. Topical Pain Relief Products
Five of the 48 biobased topical pain relief products identified
have been tested for biobased content using ASTM D6866. The biobased
contents of these five biobased topical pain relief products range from
94 to 100 percent, as follows: 94, 99, 100, 100 and 100 percent.
Because the biobased contents of the five tested products are within a
narrow range and the values are high, USDA is proposing to set the
minimum biobased content for topical pain relief products at 91
percent, based on the product with a tested biobased content of 94
percent.
9. Turbine Drip Oils
Three of the four biobased turbine drip oils identified have been
tested for biobased content using ASTM D6866. The biobased contents of
these three biobased turbine drip oils are as follows: 90, 95, and 96
percent. Because the biobased contents of the three tested products are
within a narrow range and the values are high, USDA is proposing to set
the minimum biobased content for turbine drip oils at 87 percent, based
on the product with a tested biobased content of 90 percent.
D. Compliance Date for Procurement Preference and Incorporation Into
Specifications
USDA intends for the final rule to take effect thirty (30) days
after publication of the final rule. However, as proposed, procuring
agencies would have a one-year transition period, starting from the
date of publication of the final rule, before the procurement
preference for biobased products within a designated item would take
effect.
USDA is proposing a one-year period before the procurement
preferences would take effect based on recognizing that Federal
agencies will need time to incorporate the preferences into procurement
documents and to revise existing standardized specifications. Section
9002(a)(3) and section 2902(c) of 7 CFR part 2902 explicitly
acknowledge the latter need for Federal agencies to have sufficient
time to revise the affected specifications to give preference to
biobased products when purchasing the designated items. Procuring
agencies will need time to evaluate the economic and
[[Page 6808]]
technological feasibility of the available biobased products for their
agency-specific uses and for compliance with agency-specific
requirements, including manufacturers' warranties for machinery in
which the biobased products would be used.
By the time these items are promulgated for designation, Federal
agencies will have had a minimum of 18 months (from the date of this
Federal Register notice), and much longer considering when the
Guidelines were first proposed and these requirements were first laid
out, to implement these requirements.
For these reasons, USDA proposes that the mandatory preference for
biobased products under the designated items take effect one year after
promulgation of the final rule. The one-year period provides these
agencies with ample time to evaluate the economic and technological
feasibility of biobased products for a specific use and to revise the
specifications accordingly. However, some agencies may be able to
complete these processes more expeditiously, and not all uses will
require extensive analysis or revision of existing specifications.
Although it is allowing up to one year, USDA encourages procuring
agencies to implement the procurement preferences as early as
practicable for procurement actions involving any of the designated
items.
V. Where Can Agencies Get More Information on These USDA-Designated
Items?
Information used to develop this proposed rule can be found in the
technical support document, which can be accessed on the BioPreferred
Web site, which is located at: http://www.biopreferred.gov. At the
BioPreferred Web site, click on the Proposed and Final Regulations link
on the left side of the page. At the next screen, click on the
Supporting Documentation link under Round 6 Designated Items under the
Proposed Regulations section.
Further, once the item designations in today's proposal become
final, manufacturers and vendors voluntarily may make available
information on specific products, including product and contact
information, for posting by the Agency on the BioPreferred Web site.
USDA will periodically audit the information displayed on the
BioPreferred Web site and, where questions arise, contact the
manufacturer or vendor to verify, correct, or remove incorrect or out-
of-date information. Procuring agencies should contact the
manufacturers and vendors directly to discuss specific needs and to
obtain detailed information on the availability and prices of biobased
products meeting those needs.
By accessing the BioPreferred Web site, agencies will also be able
to obtain the voluntarily-posted information on each product
concerning: Relative price; life-cycle costs; hot links directly to a
manufacturer's or vendor's Web site (if available); performance
standards (industry, government, military, ASTM/ISO) that the product
has been tested against; and environmental and public health
information from the BEES analysis or the alternative analysis embedded
in the ASTM Standard D7075, ``Standard Practice for Evaluating and
Reporting Environmental Performance of Biobased Products.''
USDA has linked the BioPreferred Web site to DoD's list of
specifications and standards, which can be used as guidance when
procuring products. To access this list, go to the BioPreferred Web
site and click on the ``Selling to Federal Government'' tab and look
for the DoD Specifications link.
VI. Regulatory Information
A. Executive Order 12866: Regulatory Planning and Review
Executive Order 12866 requires agencies to determine whether a
regulatory action is ``significant.'' The Order defines a ``significant
regulatory action'' as one that is likely to result in a rule that may:
``(1) Have an annual effect on the economy of $100 million or more or
adversely affect, in a material way, the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities; (2) Create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) Materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
Raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in this Executive
Order.''
Today's proposed rule has been determined to be 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 today's proposed rule. As
discussed earlier in this preamble, USDA made extensive efforts to
obtain information on the Federal agencies' usage within the nine
designated items. These efforts were largely unsuccessful. Therefore,
attempts to quantify the economic impact of today's proposed 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 price is
``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 today's proposed rule. Consideration was also given to the
fact that agencies may choose not to procure designated items due to
unreasonable price.
1. Summary of Impacts
Today's proposed rule is expected to have both positive and
negative impacts on 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 proposed 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 today's proposed rule. The proposed 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, availability and/or price of biobased products
acceptable is unknown, it is impossible to quantify the actual economic
effect of the rule. As discussed in Section III of this preamble, USDA
is requesting comment on how many small entities may be affected by
this rule and on the nature and extent of that effect.
2. Benefits of the Proposed Rule
The designation of these items is expected to provide benefits as
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, and to spur development of
[[Page 6809]]
the industrial base through value-added agricultural processing and
manufacturing in rural communities. On a national and regional level,
today's proposed rule can result in expanding and strengthening markets
for biobased materials used in these items.
3. Costs of the Proposed Rule
Like the benefits, the costs of today's proposed 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. Pre-award procurement costs for Federal agencies may rise
minimally as the contracting officials conduct market research to
evaluate the performance, availability and price reasonableness of
preferred products before making a purchase.
B. Regulatory Flexibility Act (RFA)
The RFA, 5 U.S.C. 601-602, generally requires an agency to prepare
a regulatory flexibility analysis of any rule subject to notice and
comment rulemaking requirements under the Administrative Procedure Act
or any other statute unless the agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
USDA evaluated the potential impacts of its proposed designation of
these items to determine whether its actions would have a significant
impact on a substantial number of small entities. Because the preferred
procurement program established under section 9002 applies only to
Federal agencies and their contractors, small governmental (city,
county, etc.) agencies are not affected. Thus, the proposal, if
promulgated, 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.
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 biobased products within the items 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 manufacturing
biobased products affected by this rulemaking is not expected to be
substantial.
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. Most manufacturers
of non-biobased products within the items being proposed for
designation for preferred procurement in this rule are expected to be
included under the following NAICS codes: 322231 (die-cut paper and
paperboard office supplies manufacturing), 324191 (petroleum
lubricating oil and grease manufacturing), 325211 (plastics materials
and resin manufacturing), 325411 (medicinal and botanical
manufacturing), 325612 (polish and other sanitation goods
manufacturing), 325998 (other miscellaneous chemical products and
preparation manufacturing), and 326150 (urethane and other foam product
manufacturing). USDA obtained information on these seven NAICS
categories from the U.S. Census Bureau's Economic Census database. USDA
found that the Economic Census reports about 3,696 companies within
these seven NAICS categories and that these companies own a total of
about 4,478 establishments. Thus, the average number of establishments
per company is about 1.2. The Census data also reported that of the
4,478 individual establishments, about 4,450 (99.3 percent) have less
than 500 employees. USDA also found that the overall average number of
employees per company among these industries is about 55, with the
plastics materials and resins segment reporting the highest average
(about 90 employees per company). Thus, nearly all of the businesses
fall within the Small Business Administration's definition of a small
business (less than 500 employees, in most NAICS categories).
USDA does not have data on the potential adverse impacts on
manufacturers of non-biobased products within the items being
designated, but believes that the impact will not be significant. Most
of the items being proposed for designation in this rulemaking are
typical consumer products widely used by the general public and by
industrial/commercial establishments that are not subject to this
rulemaking. Thus, USDA believes that the number of small businesses
manufacturing non-biobased products within the items being designated
and selling significant quantities of those products to government
agencies affected by this rulemaking to be relatively low. Also, this
proposed rule will not affect existing purchase orders and it will not
preclude procuring agencies from continuing to purchase non-biobased
items when biobased items do not meet the availability, performance, or
reasonable price criteria. This proposed rule will also not preclude
businesses from modifying their product lines to meet new
specifications or solicitation requirements for these products
containing biobased materials.
After considering the economic impacts of this proposed 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 proposed
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.
C. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This proposed 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.
[[Page 6810]]
D. Executive Order 13132: Federalism
This proposed rule does not have sufficient federalism implications
to warrant the preparation of a Federalism Assessment. Provisions of
this proposed 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.
E. Unfunded Mandates Reform Act of 1995
This proposed 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.
F. 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 Executive Order 12372, which requires
intergovernmental consultation with State and local officials. This
program does not directly affect State and local governments.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Today's proposed 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.
H. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 through 3520), the information collection under this proposed rule
is currently approved under OMB control number 0503-0011.
I. e-Government Act Compliance
USDA is committed to compliance with the e-Government Act, 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 e-Government Act compliance related to this rule, please
contact Ron Buckhalt at (202) 205-4008.
List of Subjects in 7 CFR Part 2902
Biobased products, Procurement.
For the reasons stated in the preamble, the Department of
Agriculture proposes to amend 7 CFR chapter XXIX as follows:
CHAPTER XXIX--OFFICE OF ENERGY POLICY AND NEW USES
PART 2902--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL
PROCUREMENT
1. The authority citation for part 2902 continues to read as
follows:
Authority: 7 U.S.C. 8102.
2. Add Sec. Sec. 2902.52 through 2902.60 to subpart B to read as
follows:
Sec.
2902.52 Disposable tableware.
2902.53 Expanded polystyrene (EPS) foam recycling products.
2902.54 Heat transfer fluids.
2902.55 Ink removers and cleaners.
2902.56 Mulch and compost materials.
2902.57 Multipurpose lubricants.
2902.58 Office paper.
2902.59 Topical pain relief products.
2902.60 Turbine drip oils.
Sec. 2902.52 Disposable tableware.
(a) Definition. Products used in dining, such as drink ware and
dishware, including but not limited to cups, plates, bowls, and serving
platters, and that are designed for one-time use. This item does not
include disposable cutlery, which is a separate item.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 72 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 [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased disposable tableware. 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 disposable tableware.
Sec. 2902.53 Expanded polystyrene (EPS) foam recycling products.
(a) Definition. Products formulated to dissolve EPS foam to reduce
the volume of recycled or discarded EPS items.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 90 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 [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased EPS foam recycling 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 EPS foam recycling products.
Sec. 2902.54 Heat transfer fluids.
(a) Definition. Products with high thermal capacities used to
facilitate the transfer of heat from one location to another, including
coolants or refrigerants for use in HVAC applications, internal
combustion engines, personal cooling devices, thermal energy storage,
or other heating or cooling closed-loops.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 89 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 [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased heat transfer 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 heat transfer fluids.
Sec. 2902.55 Ink removers and cleaners.
(a) Definition. Chemical products designed to remove ink, haze,
glaze, and other residual ink contaminants from the surfaces of
equipment, such as rollers, used in the textile and printing
industries.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 79 percent, which
shall be based
[[Page 6811]]
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 [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased ink removers and 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 ink removers and cleaners.
Sec. 2902.56 Mulch and compost materials.
(a) Definition. Products designed to provide a protective covering
placed over the soil, primarily to keep down weeds and to improve the
appearance of landscaping. Compost is the aerobically decomposed
remnants of organic materials used in gardening and agriculture as a
soil amendment, and commercially by the landscaping and container
nursery industries.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 95 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 [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased mulch and compost materials. 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 mulch and compost materials.
(d) Determining overlap with an EPA-designated recovered content
product. Qualifying products within this item may overlap with the EPA-
designated recovered content product: Landscaping products--``compost''
and ``hydraulic mulch''. USDA is requesting that manufacturers of these
qualifying biobased products provide information on the USDA Web site
of qualifying biobased products about the intended uses of the product,
information on whether or not the product contains any recovered
material, in addition to biobased ingredients, and performance
standards against which the product has been tested. This information
will assist Federal agencies in determining whether or not a qualifying
biobased product overlaps with EPA-designated landscaping products and
which product should be afforded the preference in purchasing.
Note to paragraph (d): Biobased mulch and compost materials
within this designated item can compete with similar landscaping
products with recycled content. Under the Resource Conservation and
Recovery Act of 1976, section 6002, the U.S. Environmental
Protection Agency designated landscaping products containing
recovered materials as items for which Federal agencies must give
preference in their purchasing programs. The designation can be
found in the Comprehensive Procurement Guideline, 40 CFR 247.15.
Sec. 2902.57 Multipurpose lubricants.
(a) Definition. Products designed to provide lubrication under a
variety of conditions and in a variety of industrial settings to
prevent friction or rust. Greases, which are lubricants composed of
oils thickened to a semisolid or solid consistency using soaps,
polymers or other solids, or other thickeners, are not included in this
item. In addition, task-specific lubricants, such as chain and cable
lubricants and gear lubricants, are not included in this item.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 88 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 [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased multipurpose 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 multipurpose lubricants.
(d) Determining overlap with an EPA-designated recovered content
product. Qualifying products within this item may overlap with the EPA-
designated recovered content product: Re-refined lubricating oils. USDA
is requesting that manufacturers of these qualifying biobased products
provide information on the BioPreferred Web site about the intended
uses of the product, information on whether or not the product contains
any recovered material, in addition to biobased ingredients, and
performance standards against which the product has been tested. This
information will assist Federal agencies in determining whether or not
a qualifying biobased product overlaps with EPA-designated re-refined
lubricating oils and which product should be afforded the preference in
purchasing.
Note to paragraph (d): Biobased multipurpose lubricant products
within this designated item can compete with similar multipurpose
lubricant products with recycled content. Under the Resource
Conservation and Recovery Act of 1976, section 6002, the U.S.
Environmental Protection Agency designated re-refined lubricating
oils containing recovered materials as items for which Federal
agencies must give preference in their purchasing programs. The
designation can be found in the Comprehensive Procurement Guideline,
40 CFR 247.11.
Sec. 2902.58 Office paper.
(a) Definition. Paper products used in office printer and copier
applications, writing, and coated papers for publications.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 95 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 [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased office paper. 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 office paper.
(d) Determining overlap with an EPA-designated recovered content
product. Qualifying products within this item may overlap with the EPA-
designated recovered content product: Paper and paper products. USDA is
requesting that manufacturers of these qualifying biobased products
provide information on the USDA Web site of qualifying biobased
products about the intended uses of the product, information on whether
or not the product contains any recovered material, in addition to
biobased ingredients, and performance standards against which the
product has been tested. This information will assist Federal agencies
in determining whether or not a qualifying biobased product overlaps
with EPA-designated paper and paper products and which product should
be afforded the preference in purchasing.
Note to paragraph (d): Biobased office paper within this
designated item can
[[Page 6812]]
compete with similar paper and paper products with recycled content.
Under the Resource Conservation and Recovery Act of 1976, section
6002, the U.S. Environmental Protection Agency designated paper and
paper products containing recovered materials as items for which
Federal agencies must give preference in their purchasing programs.
The designation can be found in the Comprehensive Procurement
Guideline, 40 CFR 247.10.
Sec. 2902.59 Topical pain relief products.
(a) Definition. Products that can be balms, creams and other
topical treatments used for the relief of muscle, joint, headache, and
nerve pain, as well as sprains, bruises, swelling, and other aches.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 91 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 [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased topical pain relief 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 topical pain relief
products.
Sec. 2902.60 Turbine drip oils.
(a) Definition. Products that are lubricants for use in drip
lubrication systems for water well line shaft bearings, water turbine
bearings for irrigation pumps, and other turbine bearing applications.
(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 [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased turbine drip oils. 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 turbine drip oils.
Dated: February 2, 2010.
Pearlie S. Reed,
Assistant Secretary for Administration, U.S. Department of Agriculture.
[FR Doc. 2010-2651 Filed 2-9-10; 8:45 am]
BILLING CODE 3410-93-P