[Federal Register Volume 75, Number 225 (Tuesday, November 23, 2010)]
[Proposed Rules]
[Pages 71492-71512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29191]
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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. 225 / Tuesday, November 23, 2010 /
Proposed Rules
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DEPARTMENT OF AGRICULTURE
Office of Energy Policy and New Uses
7 CFR Part 2902
RIN 0503-AA36
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 14 sections that will designate the
following items within which biobased products would be afforded
Federal procurement preference: Animal repellents; bath products;
bioremediation materials; compost activators and accelerators; concrete
and asphalt cleaners; cuts, burns, and abrasions ointments; dishwashing
products; erosion control materials; floor cleaners and protectors;
hair care products; interior paints and coatings; oven and grill
cleaners; slide way lubricants; and thermal shipping containers. USDA
is also proposing minimum biobased contents for each of these items.
DATES: USDA will accept public comments on this proposed rule until
January 24, 2011.
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-AA36.
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. Direct your comments
to Docket ID No. OPPM-2010-0002.
E-mail: [email protected]. Include RIN number 0503-
AA36 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 Federal biobased
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.
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.
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
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and to recommend, where appropriate, the minimum level of biobased
content to be contained in the procured products.
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 ``thermal
shipping containers,'' some containers are designed as durable products
that can be re-used over long periods of time. Such containers might be
used, for example, in the trucking industry when trucks are dedicated
to shipping the same types of products on a regular basis. Other
thermal shipping containers may be non-durable, or intended for only a
one-time use. These containers might be used to ship small quantities
of perishable fruits or vegetables to consumers who would then dispose
of the container. Where such subgroups exist, USDA intends to create
subcategories. Thus, for example, for the item ``thermal shipping
containers,'' USDA has determined it is reasonable to create a
``durable thermal shipping container'' subcategory and a ``non-durable
thermal shipping container'' subcategory. Where structural integrity
may be a key characteristic of a durable thermal shipping container,
disposal concerns are a key characteristic of a non-durable thermal
shipping container. In sum, USDA looks at the products within each item
category to evaluate whether there are subgroups of products within the
item that have different characteristics or that meet different
performance specifications and, where USDA finds these types of
differences, 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 thermal shipping containers are required to meet,
but it may have information on only one type of container. 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.
Within today's proposed rule, USDA is proposing to subcategorize
two of the items being proposed for designation. The first item is hair
care products and the proposed subcategories are shampoo products and
conditioner products. The second item is thermal shipping containers
and the proposed subcategories are durable and non-durable thermal
shipping containers.
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 volunteered 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 six tested
products within an item being proposed for designation today are 22,
28, 82, 98, 100, and 100 percent. Because this is a very wide range,
and because there is a significant gap in the data between the 28
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 22 or 28 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. 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 or
subcategory will be revised.
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 both
subcategories under the thermal shipping containers designated item are
based on a single tested product. Given that only three biobased
products have been identified in this item, and only one manufacturer
of products within each subcategory supplied a sample for testing, USDA
believes it is reasonable to set minimum biobased contents for these
subcategories based on the single data point for each subcategory.
Where USDA receives additional biobased content test data for
products within these proposed items and subcategories during the
public comment period, USDA will take that information into
consideration when establishing the minimum biobased content when the
items and subcategories 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 materials. In situations where it
believes
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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 two items for preferred procurement
for which there may be overlap with an EPA-designated recovered content
product. The first item is interior paints and coatings, which may
overlap with the EPA-designated recovered content products
``reprocessed latex paints'' and ``consolidated latex paints.'' The
second item is slide way lubricants, which, depending on how they are
used, may overlap with the EPA-designated recovered content product
``re-refined lubricating oils.'' EPA provides recovered materials
content recommendations for this recovered content products in a
Recovered Materials Advisory Notice (RMAN I). The RMAN recommendations
for this CPG product 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 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, 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 designated 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 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
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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 (concrete and asphalt cleaners, dishwashing detergent, floor
cleaners and protectors, and hair care products) are available through
the AbilityOne Program. While there is no specific product within these
items identified in the AbilityOne online catalog as being a biobased
product, it is possible that such 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.
In the preamble to the first six items designated for preferred
procurement (71 FR 13686, March 16, 2006), USDA stated that it planned
to identify approximately 10 items in each future rulemaking. In an
effort to finalize the designation of more items in a shorter time
period, USDA now plans to increase the number of items in each
rulemaking, whenever possible. Thus, today's proposed rulemaking would
designate 14 items for preferred procurement.
USDA has developed a preliminary list of items for future
designation and has posted this preliminary list 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 and
subcategories for preferred procurement: Animal repellents; bath
products; bioremediation materials; compost activators and
accelerators; concrete and asphalt cleaners; cuts, burns, and abrasions
ointments; dishwashing products; erosion control materials; floor
cleaners and protectors; hair care products, including shampoos and
conditioners as subcategories; interior paints and coatings; oven and
grill cleaners; slide way lubricants; and thermal shipping containers,
including durable and non-durable thermal shipping containers as
subcategories. USDA is also proposing minimum biobased content for each
of these items and subcategories (see Section IV.C). Lastly, except for
thermal shipping containers, USDA is proposing a date by which Federal
agencies must incorporate these designated items into their procurement
specifications (see Section IV.D). USDA is proposing to defer the
preference compliance date for biobased thermal shipping containers
until two or more manufacturers of these containers have been
identified.
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 and vendors 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
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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 and its effect on 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 procurement 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 and subcategories, 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. Two of the items being proposed for designation (interior paints
and coatings and slide way lubricants) 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. Several items (e.g., animal repellents, bath products, concrete
and asphalt cleaners, dishwashing products, floor cleaners and
protectors, oven and grill cleaners, and hair care products) have wide
ranges of tested biobased contents. For the reasons discussed later in
this preamble, USDA is proposing a minimum biobased content 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 (TSD), ``Technical Support
for Proposed Rule--Round 7 Designated Items,'' which is available on
the BioPreferred Web site. The TSD 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 7
Designation under the Proposed Regulations section. This will bring you
to the link to the TSD.
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
[[Page 71497]]
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 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 7 designated items
analyzed using the BEES analytical tool can be found in ``Technical
Support for Proposed Rule--Round 7 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,
including the Defense Logistics Agency (DLA), 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 sources 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 from 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 volunteered 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 expected that 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, though this will
generally occur once other items with high biobased content and two or
more producers are first designated. However, USDA has also determined
that in such situations it is appropriate to defer the
[[Page 71498]]
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 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 and subcategories for the preferred procurement
program: Animal repellents; bath products; bioremediation materials;
compost activators and accelerators; concrete and asphalt cleaners;
cuts, burns, and abrasions ointments; dishwashing products; erosion
control materials; floor cleaners and protectors; hair care products,
including shampoos and conditioners as subcategories; interior paints
and coatings; oven and grill cleaners; slide way lubricants; and
thermal shipping containers, including durable and non-durable thermal
shipping containers as subcategories. 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, two items may
overlap with EPA-designated recovered content products. The first item
is interior paints and coatings, which may overlap with the EPA-
designated recovered content products ``Reprocessed Latex Paints'' and
``Consolidated Latex Paints.'' The second item is slide way lubricants,
which may overlap with the EPA-designated recovered content ``Re-
refined Lubricating Oils.''
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 exempt from the biobased procurement
preference are military equipment, defined as any product or system
designed or procured for combat or combat-related missions, and
spacecraft systems and launch support equipment. However, 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 cleaning the interior
of a non-combat office building on a military base, the floor cleaners
and protectors the contractor purchases and uses in the office building
should be biobased. 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 the relevant contract, where
contractors have any questions 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.
Each of the proposed designated items and their subcategories are
discussed in the following sections.
[[Page 71499]]
1. Animal Repellents (Minimum Biobased Content 79 Percent) \1\
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\1\ Additional information on the determination of minimum
biobased contents is presented in Section IV.C of this preamble.
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Animal repellents are products used to aid in deterring animals
that cause destruction to plants and/or property.
USDA identified 29 manufacturers and suppliers of 109 animal
repellents. These 29 manufacturers and suppliers do not necessarily
include all manufacturers of animal repellents, 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. 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 performance are
identified for this item, USDA will provide such information on the
BioPreferred Web site.
USDA contacted procurement officials with various policy-making and
procuring agencies in an effort to gather information on the purchases
of animal repellents, as well as information on products within the
other 13 items proposed for designation today. These agencies included
GSA, several offices within the DLA, OFEE, USDA Departmental
Administration, the National Park Service, EPA, a Department of Energy
laboratory, and OMB. Communications with these Federal officials led to
the conclusion that obtaining current item statistics and specific
potential markets within the Federal government for biobased products
within the 14 proposed designated items is not possible at this time.
Most of the contacted officials reported that procurement data are
appropriately reported in higher level groupings of Federal Supply
Codes for materials and supplies, which is higher level coding 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 TSD 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 leads to less accurate data on purchases of specific products.
USDA also investigated the Web site FEDBIZOPPS.gov, a site which
lists Federal contract purchase opportunities and awards greater than
$25,000. The information provided on this Web site, however, is for
broad categories of services and 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 animal
repellents purchased by procuring agencies. However, many Federal
agencies routinely procure such products for use in animal control and
related services involving the use of such products. On this basis,
USDA reaches the conclusion that the government has a need for animal
repellents and for services that use these products. Designation of
animal repellents will promote the use of biobased products, furthering
the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics, have been
collected on eight animal repellents. Analyses of the environmental and
human health benefits and the life-cycle costs of biobased animal
repellents were performed for three of the products using the BEES
analytical tool. The results of those analyses are presented in the TSD
for the Round 7 items, which can be found on the BioPreferred Web site.
2. Bath Products (Minimum Biobased Content 61 Percent)
Bath products are personal hygiene products, including soaps and
other cleansers for the body. These products are generally bar soaps,
liquids, or gels that are referred to as body washes, body shampoos, or
cleansing lotions.
USDA identified 369 manufacturers and suppliers of 888 bath
products. These 369 manufacturers and suppliers do not necessarily
include all manufacturers of bath products, 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 four test methods (as shown
below) used in evaluating products within this item. While there may be
additional test methods, as well as performance standards, product
certifications, and other measures of performance, applicable to
products within this item, the four test methods identified by the
manufacturers of products within this item are:
Test Methods:
ASTM International D-130 Standard Test Method for
corrosiveness to copper from petroleum products by copper strip test;
ASTM International D-665 Standard Test Method for rust-
preventing characteristics of inhibited mineral oil in the presence of
water;
ISO 32 Calibration in analytical chemistry and use of
certified reference materials; and
Vickers I-286-S Tests for pump wear.
USDA attempted to gather data on the potential market for bath
products within the Federal government as discussed in the section on
animal repellents. These attempts were largely unsuccessful. However,
Federal agencies routinely procure such products and contract for
lodging and health care related services involving the use of such
products. On this basis, USDA concludes that the government has a need
for bath products and for services that use bath products. Designation
of bath products will promote the use of biobased products, furthering
the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics, have been
collected on 101 bath products. Analyses of the environmental and human
health benefits and the life-cycle costs of biobased bath products were
performed for three of the products using the BEES analytical tool. The
results of those analyses are presented in the TSD for the Round 7
items, which can be found on the BioPreferred Web site.
3. Bioremediation Materials (Minimum Biobased Content 86 Percent)
Bioremediation materials are dry or liquid solutions used to clean
oil, fuel, and other hazardous spill sites. They do not include sorbent
materials, but may include bacteria or other microbes.
USDA identified 31 manufacturers and suppliers of 53 bioremediation
materials. The 31 manufacturers and suppliers do not necessarily
include all manufacturers and suppliers of biobased bioremediation
materials, merely those identified during USDA information
[[Page 71500]]
gathering activities. Information supplied by these manufacturers and
suppliers indicates that these products are being used commercially. In
addition, manufacturers and stakeholders identified two test methods
(as shown below) used in evaluating products within this item. While
there may be additional test methods, as well as performance standards,
product certifications, and other measures of performance, applicable
to products within this item, the two test methods identified by the
manufacturers of products within this item are:
Test Methods:
American Type Culture Collection Biosafety Level 1 minimal
potential for causing diseases in humans, plants, animals and aquatic
life; and
California Air Resources Board Method 310 VOCs.
USDA attempted to gather data on the potential market for
bioremediation materials within the Federal government as discussed in
the section on animal repellents. These attempts were largely
unsuccessful. However, many Federal agencies own residential and office
buildings and routinely perform, or procure contract services to
perform, the types of maintenance activities that would use these
products. Thus, they have a need for bioremediation materials and for
services that require the use of bioremediation materials. Designation
of bioremediation materials will promote the use of biobased products,
furthering the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics, have been
collected on 11 bioremediation materials. An analysis of the
environmental and human health benefits and the life-cycle costs of
biobased bioremediation 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 7 items, which can be found on the
BioPreferred Web site.
4. Compost Activators and Accelerators (Minimum Biobased Content 95
Percent)
Compost activators and accelerators are products designed to be
applied to compost piles to aid in speeding up the composting process
and to ensure successful compost that is ready for consumer use. They
are available in either liquid or powder forms.
USDA identified 19 manufacturers and suppliers of 32 compost
activators and accelerators. The 19 manufacturers and suppliers do not
necessarily include all manufacturers and suppliers of biobased compost
activators and accelerators, 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. 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 compost
activator and accelerator products within the Federal government as
discussed in the section on animal repellents. These attempts were
largely unsuccessful. However, Federal agencies routinely perform, or
procure contract services to perform, the types of composting
activities that would use these products. Thus, they have a need for
compost activators and accelerators and for services that require the
use of compost activators and accelerators. Designation of compost
activators and accelerators will promote the use of biobased products,
furthering the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics, have been
collected on five compost activators and accelerators. An analysis of
the environmental and human health benefits and the life-cycle costs of
biobased compost activator and accelerator 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 7 items, which can be found on
the BioPreferred Web site.
5. Concrete and Asphalt Cleaners (Minimum Biobased Content 58 Percent)
Concrete and asphalt cleaners are products used in concrete etching
as well as to remove petroleum-based soils, lubricants, paints,
mastics, organic soils, rust, and dirt from concrete, asphalt, stone
and other hard porous surfaces for commercial, industrial, or
residential use.
USDA identified 29 manufacturers and suppliers of 34 concrete and
asphalt cleaners. The 29 manufacturers and suppliers do not necessarily
include all manufacturers and suppliers of biobased concrete and
asphalt cleaners, 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 six test methods
(as shown below) used in evaluating products within this item. While
there may be additional test methods, as well as performance standards
and other measures of performance, applicable to products within this
item, the six test methods identified by the manufacturers of products
within this item are:
Test Methods:
Boeing Spec D6-17487P for aircraft exterior and general
cleaning;
ASTM International D3505 standard test method for density
or relative density of pure liquid chemicals;
ASTM International E70 standard test method for pH of
aqueous solutions with the glass electrode;
Environmental Protection Agency 560/6-82-003 Describes
methods for performing testing of chemical substances under the Toxic
Substances Control Act;
Environmental Protection Agency 601 Purgeable Halocarbons;
and
Environmental Protection Agency 602 Purgeable Aromatics.
USDA attempted to gather data on the potential market for concrete
and asphalt cleaning products within the Federal government as
discussed in the section on animal repellents. These attempts were
largely unsuccessful. However, many Federal agencies routinely perform,
or procure contract services to perform, concrete and asphalt cleaning.
Thus, they have a need for concrete and asphalt cleaners and for
services that require the use of concrete and asphalt cleaners.
Designation of concrete and asphalt cleaners will promote the use of
biobased products, furthering the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics, have been
collected on nine concrete and asphalt cleaners. An analysis of the
environmental and human health benefits and the life-cycle costs of
biobased concrete and asphalt cleaners was performed for one of the
products using the BEES analytical tool.
[[Page 71501]]
The results of that analysis are presented in the TSD for the Round 7
items, which can be found on the BioPreferred Web site.
6. Cuts, Burns, and Abrasions Ointments (Minimum Biobased Content 84
Percent)
Cuts, burns, and abrasions ointments are products designed to aid
in the healing and sanitizing of scratches, cuts, bruises, abrasions,
sun damaged skin, tattoos, rashes and other skin conditions.
USDA identified 42 manufacturers and suppliers of 71 different
cuts, burns, and abrasions ointments. These 42 manufacturers and
suppliers do not necessarily include all manufacturers and suppliers of
biobased cuts, burns, and abrasions ointments, 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. 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 cuts,
burns, and abrasions ointments within the Federal government as
discussed in the section on animal repellents. These attempts were
largely unsuccessful. However, many Federal agencies routinely procure
and use such products in daily operations. In addition, Federal
agencies may contract for health care services involving the use of
such products. Thus, they have a need for cuts, burns, and abrasions
ointments and for services that require the use of cuts, burns, and
abrasions ointments. Designation of cuts, burns, and abrasions
ointments will promote the use of biobased products, furthering the
objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on 23 cuts, burns, and abrasions ointments. Analyses of the
environmental and human health benefits and the life-cycle costs of
biobased cuts, burns, and abrasions ointments were performed for two of
the products using the BEES analytical tool. The results of those
analyses are presented in the TSD for the Round 7 items, which can be
found on the BioPreferred Web site.
7. Dishwashing Products (Minimum Biobased Content 58 Percent)
Dishwashing products are soaps and detergents used for cleaning and
clean rinsing of tableware in either hand washing or dishwashing
machines.
USDA identified 39 manufacturers and suppliers of 64 different
dishwashing products. These 39 manufacturers and suppliers do not
necessarily include all manufacturers and suppliers of biobased
dishwashing products, 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 six test methods
(as shown below) used in evaluating products within this item. While
there may be additional test methods, as well as performance standards
and other measures of performance, applicable to products within this
item, the six test methods identified by the manufacturers of products
within this item are:
Test Methods:
Bacteria Inhibitory;
Chlorine Equal;
Boeing D6-7127: ``Cleaning interiors of commercial
transport aircraft'';
Federal Test Method Standard 536A: Soap and soap products
(including synthetic detergents) sampling and testing;
South Coast Air Quality Management District, Clean Air:
The South Coast Air Quality Management District hereby certifies the
above product as a ``Clean Air Solvent''; and
U.S. Navy, Navsea 6840 U.S. Navy surface ship (non-
submarine) authorized chemical cleaning products and dispensing
systems.
USDA attempted to gather data on the potential market for
dishwashing products within the Federal government as discussed in the
section on animal repellents. These attempts were largely unsuccessful.
However, many Federal agencies routinely use dishwashing products in
daily operations. In addition, Federal agencies may contract for food
preparation and kitchen cleaning services involving the use of such
products. Thus, they have a need for dishwashing products and for
services that require the use of dishwashing products. Designation of
dishwashing products will promote the use of biobased products,
furthering the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on 28 dishwashing products. An analysis of the environmental
and human health benefits and the life-cycle costs of biobased
dishwashing 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 7 items, which can be found on the BioPreferred Web
site.
8. Erosion Control Materials (Minimum Biobased Content 77 Percent)
Erosion control materials are woven or non-woven fiber materials
manufactured for use on construction, demolition, or other sites to
prevent wind or water erosion of loose earth surfaces, and may be
combined with seed and/or fertilizer to promote growth.
USDA identified 30 manufacturers and suppliers of 169 erosion
control materials. These 30 manufacturers and suppliers do not
necessarily include all manufacturers and suppliers of biobased erosion
control materials, 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 21 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 21
test methods identified by manufacturers of products within this item
and by others are:
Test Methods:
American Association of State Highway Transportation
Officials M288-96 Geotextile Specifications;
ASTM International D1388 Standard Test Method for
Stiffness of Fabrics;
ASTM International D1777 Standard Test Method for
Thickness of Textile Materials;
ASTM International D2974 Standard Test Method for
Moisture, Ash, and Organic Matter of Peat and Other Organic Soils;
ASTM International D3776 Standard Test Methods for Mass
per Unit Area (Weight) of Fabric;
[[Page 71502]]
ASTM International D4354 Standard Test Practice for
Sampling of Geosynthetics for Testing;
ASTM International D4595 Standard Test Method for Tensile
Properties of Geotextiles by the Wide-Width Strip Method;
ASTM International D5035 Standard Test Method for Breaking
Force and Elongation of Textile Fabrics (Strip Method);
ASTM International D5261 Standard Test Method for
Measuring Mass per Unit Area of Geotextiles;
ASTM D586 Standard Test Method for Ash in Pulp, Paper and
Paper Products;
ASTM International D6400 Standard Specification for
Compostable Plastics;
ASTM International D6459 Standard Test Method for
Determination of Erosion Control Blanket (ECB) Performance in
Protecting Hillslopes from Rainfall-Induced Erosion;
ASTM International D6460 Standard Test Method for
Determination of Rolled Erosion Control Product (RECP) Performance in
Protecting Earthen Channels from Stormwater-Induced Erosion;
ASTM International D6475 Standard Test Method for
Measuring Mass per Unit Area of Erosion Control Blankets;
ASTM International D6524 Standard Test Method for
Measuring the Resiliency of Turf Reinforcement Mats (TRMs);
ASTM International D6525 Standard Test Method for
Measuring Nominal Thickness of Permanent Rolled Erosion Control
Products;
ASTM International D6566 Standard Test Method for
Measuring Mass per Unit of Area of Turf Reinforcement Mats;
ASTM International D6567 Standard Test Method for
Measuring the Light Penetration of a Turf Reinforcement Mat (TRM);
ASTM International D6575 Standard Test Method for
Determining Stiffness of Geosynthetics Used as Turf Reinforcement Mats
(TRMs);
ASTM International D6818 Standard Test Method for Ultimate
Tensile Properties of Turf Reinforcement Mats; and
Erosion Control Technology Council Technical Guidance
Manual: TASC 00197.
USDA attempted to gather data on the potential market for erosion
control materials within the Federal government as discussed in the
section on animal repellents. These attempts were largely unsuccessful.
However, many Federal agencies routinely perform, or procure contract
services to perform construction, demolition or other site work or
maintenance that requires the use of erosion control materials. Thus,
they have a need for these products. Designation of erosion control
materials will promote the use of biobased products, furthering the
objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on 15 erosion control materials. Analyses of the
environmental and human health benefits and the life-cycle costs of
biobased erosion control materials were performed for two of the
products using the BEES analytical tool. The results of those analyses
are presented in the TSD for the Round 7 items, which can be found on
the BioPreferred Web site.
9. Floor Cleaners and Protectors (Minimum Biobased Content 77 Percent)
Floor cleaners and protectors are cleaning solutions for either
direct application or use in floor scrubbers for wood, vinyl, tile, or
similar hard surface floors.
USDA identified 25 manufacturers and suppliers of 39 floor cleaners
and protectors. These 25 manufacturers and suppliers do not necessarily
include all manufacturers and suppliers of biobased floor cleaners and
protectors, 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 shown below) used in evaluating
products within this item. While other test methods and other measures
of performance, as well as 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 International D4488 Standard guide for testing
cleaning performance of products intended for use on resilient flooring
and washable walls; and
ASTM International D5343 Standard guide for evaluating
cleaning performance of ceramic tile cleaners.
USDA attempted to gather data on the potential market for floor
cleaners and protectors within the Federal government as discussed in
the section on animal repellents. These attempts were largely
unsuccessful. However, many Federal agencies routinely perform, or
procure contract services to perform, activities that use floor
cleaners and protectors. Thus, they have a need for these products.
Designation of floor cleaners and protectors will promote the use of
biobased products, furthering the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on 14 floor cleaners and protectors. Analyses of the
environmental and human health benefits and the life-cycle costs of
biobased floor cleaners and protectors were performed for two of the
products using the BEES analytical tool. The results of those analyses
are presented in the TSD for the Round 7 items, which can be found on
the BioPreferred Web site.
10. Hair Care Products (Minimum Biobased Content: 66 Percent for
Shampoos; 78 Percent for Conditioners)
Hair care products are products that are specifically formulated
for hair cleaning and treatment applications, including shampoos and
conditioners.
USDA identified 58 manufacturers and suppliers of 265 hair care
products. Of these 265 products, 147 were identified as providing
products designed specifically as shampoos and 118 were identified as
providing products designed as conditioners. Based on the information
available to it, USDA believes that it is appropriate to subcategorize
this item into shampoo products and conditioner products. For the
purpose of this rulemaking, products that contain a combination of
shampoo and conditioner are considered to be shampoos because the
primary purpose of these products is believed to be cleaning the hair.
The 58 manufacturers and suppliers do not necessarily include all
manufacturers and suppliers of hair care products, 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
[[Page 71503]]
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 hair care
products within the Federal government as discussed in the section on
animal repellents. These attempts were largely unsuccessful. However,
some Federal agencies routinely procure hair care products, or procure
services that use these products. Thus, they have a need for hair care
products and for services that require the use of hair care products.
Designation of hair care products will promote the use of biobased
products, furthering the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on 106 hair care products. Analyses of the environmental and
human health benefits and the life-cycle costs of biobased hair care
products were performed for two of the shampoo products using the BEES
analytical tool. The results of those analyses are presented in the TSD
for the Round 7 items, which can be found on the BioPreferred Web site.
11. Interior Paints and Coatings (Minimum Biobased Content 67 Percent)
Interior paints and coatings are products used to protect and add
color to an object or surface by covering it with a pigmented coating
specifically formulated to provide protection in indoor applications.
USDA identified 15 manufacturers and suppliers of 114 different
biobased interior paints and coatings. These 15 manufacturers and
suppliers do not necessarily include all manufacturers and suppliers of
biobased interior paints and coatings, 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 three test methods (as shown below) used in evaluating
products within this item. While other test methods and other measures
of performance, as well as 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 International D2486 Standard Test Method for Scrub
Resistance of Wall Paint;
ASTM International 4828-91 Stain Resistance; and
ASTM International D2805-88 Standard Test Method for
Opacity.
USDA attempted to gather data on the potential market for interior
paints and coatings within the Federal government as discussed in the
section on animal repellents. These attempts were largely unsuccessful.
However, Federal agencies have residential and office buildings that
requires the use of interior paints and coatings. In addition, Federal
agencies may procure contract maintenance services that require the use
of interior paints and coatings. Thus, they have a need for interior
paints and coatings and for services that require the use of such
products. Designation of interior paints and coatings will promote the
use of biobased products, furthering the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on 10 interior paints and coatings. Analyses of the
environmental and human health benefits and the life-cycle costs of
biobased interior paints and coatings were performed for two of the
products using the BEES analytical tool. The results of those analyses
are presented in the TSD for the Round 7 items, which can be found on
the BioPreferred Web site.
12. Oven and Grill Cleaners (Minimum Biobased Content 66 Percent)
Oven and grill cleaners are cleaning agents used on high
temperature cooking surfaces such as barbeques, smokers, grills,
stoves, and ovens to soften and loosen charred food, grease, and
residue.
USDA identified 11 manufacturers and suppliers of 13 oven and grill
cleaner products. These 11 manufacturers and suppliers do not
necessarily include all manufacturers of oven and grill cleaners,
merely those identified during USDA information gathering activities.
Information supplied by the 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. 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 oven and
grill cleaners within the Federal government using the procedure
described in the section on animal repellents. These attempts were
largely unsuccessful. However, Federal agencies routinely engage in
operations where oven and grill cleaners are used. In addition, many
Federal agencies contract for food service activities involving the use
of such products. Thus, they have a need for oven and grill cleaners
and for services that use oven and grill cleaners. Designation of oven
and grill cleaners will promote the use of biobased products,
furthering the objectives of this program.
Specific product information including company contact, intended
use, biobased content, and performance characteristics have been
collected on nine oven and grill cleaners. Analyses of the
environmental and human health benefits and the life-cycle costs of
biobased oven and grill cleaners were performed for three of the
products using the BEES analytical tool. The results of those analyses
are presented in the TSD for the Round 7 items, which can be found on
the BioPreferred Web site.
13. Slide Way Lubricants (Minimum Biobased Content 74 Percent)
Slide way lubricants are products used to provide lubrication
between the mating surfaces, or slides, found in machine tools. These
lubricants eliminate stick-slip or table chatter by reducing friction
between mating surfaces.
USDA identified three manufacturers and suppliers of four different
biobased slide way lubricants. These three manufacturers and suppliers
do not necessarily include all manufacturers and suppliers of biobased
slide way 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 10 test methods (as
shown below) used in evaluating products within this item. While there
may be additional test methods, as well as
[[Page 71504]]
performance standards and other measures of performance, applicable to
products within this item, the 10 test methods identified by the
manufacturers of products within this item are:
Test Methods:
ASTM International D2161 Standard Practice for Conversion
of Kinematic Viscosity to Saybolt Universal Viscosity or to Saybolt
Furol;
ASTM International D2270 Standard Practice for Calculating
Viscosity Index from Kinematic Viscosity at 40 and 100 [deg]C;
ASTM International D2782 Standard Test Method for
Measurement of Extreme-Pressure Properties of Lubricating Fluids
(Timken Method);
ASTM International D2783 Standard Test Method for
Measurement of Extreme-Pressure Properties of Lubricating Fluids (Four-
Ball Method);
ASTM International D287 Standard Test Method for API
Gravity of Crude Petroleum and Petroleum Products (Hydrometer Method);
ASTM International D445 Standard Test Method for Kinematic
Viscosity of Transparent and Opaque Liquids (and Calculation of Dynamic
Viscosity);
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 D92 Standard Test Method for Flash and
Fire Points by Cleveland Open Cup Tester; and
ASTM International D97 Standard Test Method for Pour Point
of Petroleum Products.
USDA attempted to gather data on the potential market for slide way
lubricants within the Federal government as discussed in the section on
animal repellents. These attempts were largely unsuccessful. However,
Federal agencies have machinery and equipment that requires the use of
slide way lubricants. In addition, Federal agencies may procure
contract services that have machinery that requires the use of slide
way lubricants. Thus, they have a need for slide way lubricants and for
services that require the use of such lubricants. Designation of slide
way lubricants will promote the use of biobased products, furthering
the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on two slide way lubricants. An analysis of the environmental
and human health benefits and the life-cycle costs of biobased slide
way lubricants 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 7 items, which can be found on the BioPreferred Web site.
14. Thermal Shipping Containers (Minimum Biobased Content: 21 Percent
for Durable Containers; 82 Percent for Non-Durable Containers)
Thermal shipping containers are insulated containers for shipping
temperature sensitive materials.
USDA identified two manufacturers of three biobased thermal
shipping container products. Of these manufacturers, one was identified
as providing two products designed for single, short term use (non-
durable) and the other manufacturer was identified as providing a
durable product intended for long term use.
The two manufacturers do not necessarily include all manufacturers
of biobased thermal shipping containers, merely those identified during
USDA information gathering activities. Information supplied by these
manufacturers indicates that these products are being used
commercially. In addition, manufacturers and stakeholders identified
four methods (as shown below) used in evaluating products within this
item. While other test methods and other measures of performance, as
well as 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 International D4236 Standard Practice for Labeling
Art Materials for Chronic Health Hazards;
ASTM International D963 Specification for Copper
Phthalcoyanine Blue Pigment;
ASTM International D5338 Standard Test Method for
Determining Aerobic Biodegradation of Plastic Materials Under
Controlled Composting Conditions; and
ASTM International D6868 Standard Specification for
Biodegradable Plastics Used as Coatings on Paper and Other Compostable
Substrates.
USDA attempted to gather data on the potential market for thermal
shipping containers within the Federal government as discussed in the
section on animal repellents. These attempts were largely unsuccessful.
However, many Federal agencies routinely use such containers, and
procure services that use thermal shipping containers. Thus, they have
a need for thermal shipping containers and for services that require
the use of thermal shipping containers. Designation of thermal shipping
containers will promote the use of biobased products, furthering the
objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on two thermal shipping containers. Analyses of the
environmental and human health benefits and the life-cycle costs of
biobased thermal shipping containers were performed for two of the
products using the BEES analytical tool. The results of those analyses
are presented in the TSD for the Round 7 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
[[Page 71505]]
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 and subcategories. 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. Animal Repellents
Six of the 109 biobased animal repellents have been tested for
biobased content using ASTM D6866.\2\ The biobased contents of these
six biobased animal repellents range from 22 to 100 percent, as
follows: 22, 28, 82, 98, 100, and 100. There is a wide range of tested
biobased contents, and a significant break between the values for the
two products with the lowest biobased contents and the values for the
four products with the highest biobased contents. Because USDA found
that the two products with the 22 and 28 percent biobased content did
not claim to offer any unique performance or applicability features not
offered by the products with 100 percent biobased content, and because
we have data showing that at least two different products are available
with a biobased content of 100 percent, we are 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.
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\2\ ASTM D6866, ``Standard Test Methods for Determining the
Biobased Content of Solid, Liquid, and Gaseous Samples Using
Radiocarbon 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.
---------------------------------------------------------------------------
2. Bath Products
Thirteen of the 850 biobased bath products have been tested for
biobased content using ASTM D6866. The biobased contents of these 13
biobased bath products range from 21 to 100 percent, as follows: 21,
43, 64, 66, 67, 70, 74, 76, 83, 96, and 100 (three products). Because
there is a wide range of tested biobased contents, and because there
are significant breaks among the values for the three products with the
lowest biobased contents, USDA considered the need to subcategorize
this item. USDA found that there was not sufficient information on the
performance or applicability of the products to justify
subcategorization. USDA also found that the two products with the 21
and 43 percent biobased contents did not claim to offer any unique
performance features. The biobased contents of these two products are
also significantly below the content of the next highest (64 percent)
product. In addition, seven of the 13 tested products had biobased
contents in the narrow range between 64 and 83 percent. Therefore, USDA
is proposing to set the minimum biobased content for this item at 61
percent, based on the product with a tested biobased content of 64
percent.
3. Bioremediation Materials
Three of the 53 biobased bioremediation materials identified have
been tested for biobased content using ASTM D6866. The biobased
contents of these three biobased bioremediation materials are 24, 89,
and 100 percent. Because there is a significant gap in the data between
the 24 and the 89 percent biobased products, USDA investigated the 24
percent product to determine if there was justification in considering
it when setting the minimum biobased content. USDA did not find any
performance or applicability claims that would justify setting the
minimum biobased content for the item at that level. Therefore, USDA is
proposing to set the minimum biobased content for this item at 86
percent, based on the product with the tested biobased content of 89
percent.
4. Compost Activators and Accelerators
Two of the 32 biobased compost activators and accelerators
identified have been tested for biobased content using ASTM D6866. The
biobased contents of these two biobased compost activators and
accelerators are 98, and 100 percent. Because of the narrow range of
these products, USDA is proposing to set the minimum biobased content
for compost activators and accelerators at 95 percent, based on the
product with a tested biobased content of 98 percent.
5. Concrete and Asphalt Cleaners
Five of the 37 biobased concrete and asphalt cleaners identified
have been tested for biobased content using ASTM D6866. The biobased
contents of these five biobased concrete and asphalt cleaners range
from 1 percent to 91 percent, as follows: 1, 11, 28, 73, and 91
percent.
USDA found that the products with 1 percent and 11 percent biobased
contents are products that use microbial organisms as the active
cleaning agents. As discussed earlier in this preamble, USDA is
considering creating a separate designated item for microbial cleaners.
As a result, USDA decided not to include these products when proposing
the minimum biobased content for the concrete and asphalt cleaners
item. USDA requests that manufacturers of these two microbial cleaning
products, and manufacturers of any other microbial cleaners, provide
comments and information on the creation of a separate category for
microbial cleaners.
The three remaining concrete and asphalt cleaners had biobased
contents of 28, 73, and 91 percent. Because there is a significant
break between the 28 percent biobased product and the 73 percent
biobased product, and there is no product information to suggest that
the 28 percent product offers any unique performance or applicability
features, USDA is proposing to set the minimum biobased content for
this item at 70 percent, based on the product with a tested biobased
content of 73 percent.
6. Cuts, Burns, and Abrasions Ointments
Eight of the 71 identified biobased cuts, burns, and abrasions
ointments identified have been tested for biobased content using ASTM
D6866. The biobased contents of these eight biobased cuts, burns, and
abrasions ointments range from 87 percent to 100 percent, as follows:
87, 91, 93, 94, 97, 100, 100, and 100 percent. Because of the narrow
range of these products, USDA is proposing to set the minimum biobased
content for this item at 84 percent, based on the product with the 87
percent biobased content.
[[Page 71506]]
7. Dishwashing Products
Five of the 66 identified biobased dishwashing products identified
have been tested for biobased content using ASTM D6866. The biobased
contents of these five biobased dishwashing products range from 30
percent to 95 percent, as follows: 30, 41, 61, 75, and 95 percent.
There are two significant breaks in the range of data, one between
the 41 and 61 percent biobased products and another between the 75 and
95 percent biobased products. Considering these breaks, the tested
products within the item fall into three groups. USDA evaluated the
available product information to determine if there were sufficient
differences in formulation, performance, or applicability between these
product groups to justify subcategorization. However, USDA did not find
sufficient information to justify subcategories within the item. USDA
also did not find any features of the 30 or 41 percent biobased content
products that would justify setting the minimum biobased content at a
level that would include these products. Therefore, USDA is proposing
to set the minimum biobased content for this item at 58 percent, based
on the product with the tested biobased content of 61 percent. USDA
does not believe that it is reasonable to consider the break between
the 75 percent biobased content product and the 95 percent biobased
content product when setting the minimum biobased content because only
one of the products would qualify if the minimum biobased content were
set at this higher level.
USDA will continue to gather information on products within this
item, and if sufficient supporting information becomes available, will
consider establishing subcategories based on formulation (detergents
versus soaps, liquids versus powders, etc.), performance, or
applicability.
8. Erosion Control Materials
Eight of the 169 biobased erosion control materials identified have
been tested for biobased content using ASTM D6866. The biobased
contents of these eight biobased erosion control materials ranged from
80 percent to 100 percent as follows: 80, 81, 96, 98, 99, 100, 100, and
100 percent. Because of the narrow range of these products, USDA is
proposing to set the minimum biobased content for erosion control
materials at 77 percent, based on the product with a tested biobased
content of 80 percent.
9. Floor Cleaners and Protectors
Seven of the 39 biobased floor cleaners and protectors identified
have been tested for biobased content using ASTM D6866. The biobased
contents of these seven biobased floor cleaners and protectors ranged
from 40 percent to 99 percent as follows: 40, 57, 80, 80, 91, 97, and
99 percent.
There is a significant break in the range of data between the 57
and the 80 percent biobased content products, but the available product
information does not justify creating subcategories within this item.
The manufacturers of the two products with biobased contents of 40 and
57 do not make any performance or applicability claims for these
products that would distinguish them from the other products.
Therefore, USDA is proposing to set the minimum biobased content for
biobased floor cleaners and protectors at 77 percent, based on the
product with a tested biobased content of 80 percent.
10. Hair Care Products
Ten of the 263 biobased hair care products identified have been
tested for biobased content using ASTM D6866. The biobased contents of
these 10 biobased hair care products range from 38 percent to 89
percent as follows: 38, 40, 43, 69, 75, 76, 81, 82, 83, and 89 percent.
As noted earlier in this preamble, USDA is proposing to
subcategorize this item into two subcategories: ``Shampoos'' and
``Conditioners.'' The following paragraphs discuss the minimum biobased
content for the two subcategories.
Shampoos. The biobased contents of the seven tested shampoos range
from 38 percent to 83 percent, as follows: 38, 40, 43, 69, 75, 76, and
83. There is a significant break between the 43 percent biobased
product and the 69 percent product, and USDA found no performance
features claimed for the 38, 40, or 43 percent products that justified
setting the minimum biobased content based on any of these products.
Because the biobased contents of the remaining four products are within
a narrow range, and there is no performance information to distinguish
any one product from the others, USDA is proposing to set the minimum
biobased content for shampoos at 66 percent, based on the product with
a tested biobased content of 69 percent.
Conditioners. The biobased contents of the three tested
conditioners range from 81 to 89 percent, as follows: 81, 82, and 89.
Because of the narrow range of these products, USDA is proposing to set
the minimum biobased content for conditioners at 78 percent, based on
the product with a tested biobased content of 81 percent.
11. Interior Paints and Coatings
Five of the 114 biobased interior paints and coatings identified
have been tested for biobased content using ASTM D6866. The biobased
contents of these five biobased interior paints and coatings range from
70 to 100 percent, as follows: 70, 83, 90, 91, and 100 percent. Because
the range of these five values is relatively narrow and there are no
significant breaks in the range of the data, USDA is proposing to set
the minimum biobased content for this item at 67 percent, based on the
product with a tested biobased content of 70 percent.
12. Oven and Grill Cleaners
Four of the 13 biobased oven and grill cleaners identified have
been tested for biobased content using ASTM D6866. The biobased
contents of these four biobased oven and grill cleaners ranged from 22
percent to 91 percent, as follows: 22, 69, 88, and 91.
As shown, the tested biobased contents cover a wide range and there
is a significant break between the 22 percent biobased product and the
69 percent biobased product. The one oven and grill cleaner whose
tested biobased content was 22 percent was eliminated from
consideration because USDA found no performance characteristics that
set this product apart from other products in this item. Further, this
product's tested biobased content is substantially lower than the next
lowest oven and grill cleaner tested (69 percent). Therefore, USDA is
proposing to set the minimum biobased content for oven and grill
cleaners at 66 percent, based on the product with a tested biobased
content of 69 percent.
13. Slide Way Lubricants
All of the four biobased slide way lubricants identified have been
tested for biobased content using ASTM D6866. The biobased contents of
these four biobased slide way lubricants are 77, 99, 100, and 100
percent. Because the range of these four values is relatively narrow
and eliminating the product with the 77 percent biobased content would
result in an extremely high minimum biobased content for this item,
USDA is proposing to set the minimum biobased content for this item at
74 percent, based on the product with a tested biobased content of 77
percent.
14. Thermal Shipping Containers
Two of the three biobased thermal shipping containers identified
have been tested for biobased content using ASTM D6866. The biobased
contents of these two biobased thermal shipping containers were 24
percent and 85 percent. As noted earlier in this
[[Page 71507]]
preamble, USDA is proposing to subcategorize this item into two
subcategories: ``Durable thermal shipping containers'' and ``Non-
durable thermal shipping containers.'' The following paragraphs discuss
the minimum biobased content for the two subcategories.
Durable thermal shipping containers. USDA is proposing to set the
minimum biobased content for durable thermal containers at 21 percent,
based on the product with a tested biobased content of 24 percent. USDA
will continue to gather additional biobased content information for
this subcategory and, if sufficient data are obtained, will consider
increasing the minimum biobased content for the final rule.
Non-durable thermal shipping containers. USDA is proposing to set
the minimum biobased content for non-durable thermal containers at 82
percent, based on the product with a tested biobased content of 85
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, with the exception of one designated item discussed
below, 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, because it recognizes that Federal
agencies will need time to incorporate the preferences into procurement
documents and to revise existing standardized specifications. Both
section 9002(a)(3) and 7 CFR 2902(c) explicitly acknowledge the 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 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.
Only one manufacturer within each subcategory of the thermal
shipping containers designated item has been identified. Therefore,
USDA is proposing to defer the procurement compliance date for the
subcategories within this designated item until two or more
manufacturers of products within the subcategories are identified. When
USDA identifies two or more manufacturers, USDA will publish a document
in the Federal Register announcing that Federal agencies will have one
year from the date of publication of that announcement to give
procurement preference to biobased durable and non-durable thermal
shipping containers, as appropriate.
V. Where can agencies get more information on these USDA-designated
items?
Information used to develop this proposed rule can be found in the
TSD, 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 right side of
the page. At the next screen, click on the Supporting Documentation
link under Round 7 Designation 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 has begun performing periodic audits of the information displayed
on the BioPreferred Web site and, where questions arise, is contacting
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
[[Page 71508]]
proposed rule. As discussed earlier in this preamble, USDA made
extensive efforts to obtain information on the Federal agencies' usage
within the 14 designated items, including their subcategories. These
efforts were largely unsuccessful. Therefore, attempts to determine the
economic impacts 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 to individual businesses, including small businesses.
USDA anticipates that the biobased preferred procurement program will
provide additional opportunities for businesses and manufacturers to
begin supplying products under the 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 provides the benefits outlined in
the objectives of section 9002; to increase domestic demand for many
agricultural commodities that can serve as feedstocks for production of
biobased products, and to spur development of 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: 324191 (petroleum lubricating
oil and grease manufacturing), 325320 (pesticide and other agricultural
chemical manufacturing), 325412 (pharmaceutical preparation
manufacturing), 325510 (paint and coating manufacturing), 325611 (soap
and other detergent manufacturing), 325612 (polish and other sanitation
goods manufacturing), 325620 (toilet preparation manufacturing), 325998
(other miscellaneous chemical products and preparation manufacturing),
326150 (urethane and other foam product manufacturing), and 314999
(other miscellaneous textile mill products). USDA obtained information
on these 10 NAICS categories from the U.S. Census Bureau's Economic
Census database. USDA found that the Economic Census reports about
8,092 companies within these 10 NAICS categories and that these
companies own a total of about 9,255 establishments. Thus, the average
number of establishments per company is about 1.1. The Census data also
reported that of the 9,255 individual establishments, about 9,119 (98.5
percent) have fewer than 500 employees. USDA also found that the
overall average number of employees per company among these industries
is
[[Page 71509]]
about 58, with only one segment reporting an average of more than 100
employees (the pharmaceutical preparation industry segment at about 250
employees per company). Thus, nearly all of the businesses fall within
the Small Business Administration's definition of a small business
(fewer 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.
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. 2902.61 through 2902.74 to subpart B to read as
follows:
Sec.
2902.61 Animal repellents.
2902.62 Bath products.
2902.63 Bioremediation materials.
2902.64 Compost activators and accelerators.
2902.65 Concrete and asphalt cleaners.
2902.66 Cuts, burns, and abrasions ointments.
2902.67 Dishwashing products.
2902.68 Erosion control materials.
2902.69 Floor cleaners and protectors.
2902.70 Hair care products.
2902.71 Interior paints and coatings.
2902.72 Oven and grill cleaners.
2902.73 Slide way lubricants.
2902.74 Thermal shipping containers.
Sec. 2902.61 Animal repellents.
(a) Definition. Products used to aid in deterring animals that
cause destruction to plants and/or property.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 79 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 animal repellents. By that date, Federal agencies
that have the responsibility for drafting or reviewing specifications
for items to be procured shall ensure that
[[Page 71510]]
the relevant specifications require the use of biobased animal
repellents.
Sec. 2902.62 Bath products.
(a) Definition. Personal hygiene products including bar soaps,
liquids, or gels that are referred to as body washes, body shampoos, or
cleansing lotions.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 61 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 bath 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 bath products.
Sec. 2902.63 Bioremediation materials.
(a) Definition. Dry or liquid solutions (including those containing
bacteria or other microbes but not including sorbent materials) used to
clean oil, fuel, and other hazardous spill sites.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 86 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 bioremediation 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 bioremediation materials.
Sec. 2902.64 Compost activators and accelerators.
(a) Definition. Products in liquid or powder form designed to be
applied to compost piles to aid in speeding up the composting process
and to ensure successful compost that is ready for consumer use.
(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 compost activators and accelerators. 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 compost activators and
accelerators.
Sec. 2902.65 Concrete and asphalt cleaners.
(a) Definition. Chemicals used in concrete etching as well as to
remove petroleum-based soils, lubricants, paints, mastics, organic
soils, rust, and dirt from concrete, asphalt, stone and other hard
porous surfaces for commercial, industrial, or residential use.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 70 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 concrete and asphalt 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 concrete and asphalt
cleaners.
Sec. 2902.66 Cuts, burns, and abrasions ointments.
(a) Definition. Products designed to aid in the healing and
sanitizing of scratches, cuts, bruises, abrasions, sun damaged skin,
tattoos, rashes and other skin conditions.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 84 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 cuts, burns, and abrasions ointments. 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 cuts, burns, and abrasions
ointments.
Sec. 2902.67 Dishwashing products.
(a) Definition. Soaps and detergents used for cleaning and clean
rinsing of tableware in either hand washing or dishwashing.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 58 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 dishwashing 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 dishwashing products.
Sec. 2902.68 Erosion control materials.
(a) Definition. Woven or non-woven fiber materials manufactured for
use on construction, demolition, or other sites to prevent wind or
water erosion of loose earth surfaces, which may be combined with seed
and/or fertilizer to promote growth.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 77 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 erosion control 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 erosion control materials.
[[Page 71511]]
Sec. 2902.69 Floor cleaners and protectors.
(a) Definition. Cleaning solutions for either direct application or
use in floor scrubbers for wood, vinyl, tile, or similar hard surface
floors.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 77 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 floor cleaners and protectors. By that date,
Federal agencies that have the responsibility for drafting or reviewing
specifications for items to be procured shall ensure that the relevant
specifications require the use of biobased floor cleaners and
protectors.
Sec. 2902.70 Hair care products.
(a) Definitions. (1) Personal hygiene products specifically
formulated for hair cleaning and treating applications, including
shampoos and conditioners.
(2) Hair care products for which preferred procurement applies are:
(i) Shampoos. These are products whose primary purpose is cleaning
hair. Products that contain both shampoos and conditioners are included
in this subcategory because the primary purpose of these products is
cleaning the hair.
(ii) Conditioners. These are products whose primary purpose is
treating hair to improve the overall condition of hair.
(b) Minimum biobased content. The minimum biobased content for all
hair care products shall be based on the amount of qualifying biobased
carbon in the product as a percent of the weight (mass) of the total
organic carbon in the finished product. The applicable minimum biobased
contents for the preferred procurement products are:
(1) Shampoos--66 percent.
(2) Conditioners--78 percent.
(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 hair care 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 hair care products.
Sec. 2902.71 Interior paints and coatings.
(a) Definition. Pigmented liquids, formulated for use indoors, that
dry to form a film and provide protection and added color to the
objects or surfaces to which they are applied.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 67 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 interior paints and coatings. 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 interior paints and
coatings.
(d) Determining overlap with an EPA-designated recovered content
product. Qualifying biobased products within this item may, in some
cases, overlap with the EPA-designated recovered content products:
Reprocessed latex paints and consolidated latex paints. 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 reprocessed latex paints and consolidated latex
paints and which product should be afforded the preference in
purchasing.
Note to paragraph (d): Biobased interior paints and coating
products within this designated item can compete with similar
reprocessed latex paint and consolidated latex paint products with
recycled content. Under the Resource Conservation and Recovery Act
of 1976, section 6002, the U.S. Environmental Protection Agency
designated reprocessed latex paints and consolidated latex paints
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
247.12.
Sec. 2902.72 Oven and grill cleaners.
(a) Definition. Liquid or gel cleaning agents used on high
temperature cooking surfaces such as barbeques, smokers, grills,
stoves, and ovens to soften and loosen charred food, grease, and
residue.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 66 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 oven and grill 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 oven and grill cleaners.
Sec. 2902.73 Slide way lubricants.
(a) Definition. Products used to provide lubrication and eliminate
stick-slip and table chatter by reducing friction between mating
surfaces, or slides, found in machine tools.
(b) Minimum biobased content. The preferred procurement product
must have a minimum biobased content of at least 74 percent, which
shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than [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 slide way 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 slide way lubricants.
(d) Determining overlap with an EPA-designated recovered content
product. Qualifying biobased products within this item may, in some
cases, 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 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
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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 slide way lubricant products
within this designated item can compete with similar slide way
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(a).
Sec. 2902.74 Thermal shipping containers.
(a) Definitions. (1) Insulated containers designed for shipping
temperature-sensitive materials.
(2) Thermal shipping containers for which preferred procurement
applies are:
(i) Durable thermal shipping container. These are thermal shipping
containers that are designed to be reused over an extended period of
time.
(ii) Non-durable thermal shipping containers. These are thermal
shipping containers that are designed to be used once.
(b) Minimum biobased content. The minimum biobased content for all
thermal shipping container products shall be based on the amount of
qualifying biobased carbon in the product as a percent of the weight
(mass) of the total organic carbon in the finished product. The
applicable minimum biobased contents for the preferred procurement
products are:
(1) Durable thermal shipping containers--21 percent.
(2) Non-durable thermal shipping containers--82 percent.
(c) Preference compliance date.
(1) Durable thermal shipping containers. Determination of the
preference compliance date for durable thermal shipping containers is
deferred until USDA identifies two or more manufacturers of biobased
durable thermal shipping containers. At that time, USDA will publish a
document in the Federal Register announcing that Federal agencies have
one year from the date of publication to give procurement preference to
biobased durable thermal shipping containers.
(2) Non-durable thermal shipping containers. Determination of the
preference compliance date for non-durable thermal shipping containers
is deferred until USDA identifies two or more manufacturers of biobased
non-durable thermal shipping containers. At that time, USDA will
publish a document in the Federal Register announcing that Federal
agencies have one year from the date of publication to give procurement
preference to biobased non-durable thermal shipping containers.
Pearlie S. Reed,
Assistant Secretary for Administration, U.S. Department of Agriculture.
[FR Doc. 2010-29191 Filed 11-22-10; 8:45 am]
BILLING CODE 3410-93-P