[Federal Register Volume 76, Number 24 (Friday, February 4, 2011)]
[Rules and Regulations]
[Pages 6319-6322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2017]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 2902
RIN 0503-AA39
Designation of Biobased Items for Federal Procurement
AGENCY: Departmental Management, USDA.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Agriculture (USDA) is amending its
Guidelines for Designating Biobased Products for Federal Procurement,
to be consistent with certain statutory changes to section 9002 of the
Farm Security and Rural Investment Act (FSRIA) that were effected when
the Food, Conservation, and Energy Act (FCEA) of 2008 was signed into
law on June 18, 2008. The amendment is issued as an immediately
effective final rule. Elsewhere in this issue of the Federal Register,
we are publishing a companion proposed rule under USDA's usual
procedure for notice and comment to provide a procedural framework to
finalize the rule in the event we receive significant adverse comment
and withdraw this direct final rule.
DATES: This rule is effective June 6, 2011. Submit comments on the
direct final rule by April 5, 2011. If we receive any timely
significant adverse comment,
[[Page 6320]]
we will withdraw this final rule in part or in whole by publication of
a document in the Federal Register within 30 days after the comment
period ends.
ADDRESSES: Please submit any comments, or a notice of intent to submit
comments, identified by ``Technical Amendments to BioPreferred Program
Guidelines'' or Regulatory Information Number (RIN) 0503-AA39, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: [email protected]. Include RIN number 0503-
AA39 and ``Proposed Technical Amendments to BioPreferred Program
Guidelines'' on the subject line. Please include your name and address
in your message.
Mail/commercial/hand delivery: Mail or deliver your
comments to: Ron Buckhalt, USDA, Office of Procurement and Property
Management, Room 361, Reporters Building, 300 7th St., SW., Washington,
DC 20024.
Persons with disabilities who require alternative means for
communication for regulatory information (Braille, large print,
audiotape, etc.) should contact the USDA TARGET Center at (202) 720-
2600 (voice) and (202) 690-0942 (TTY).
FOR FURTHER INFORMATION CONTACT: Ron Buckhalt, USDA, Office of
Procurement and Property Management, Room 361, Reporters Building, 300
7th St., SW., Washington, DC 20024; e-mail: [email protected];
phone (202) 205-4008. Information regarding the preferred procurement
program (one part of the BioPreferred Program) is available on the
Internet at http://www.biopreferred.gov.
SUPPLEMENTARY INFORMATION:
The information presented in this preamble is organized as follows:
I. Authority
II. Background
III. Summary of Changes
IV. Regulatory Information
A. Executive Order 12866: Regulatory Planning and Review
B. Executive Order 12630: Governmental Actions and Interference
With Constitutionally Protected Property Rights
C. Executive Order 12988: Civil Justice Reform
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. Authority
The Guidelines for Designating Biobased Products for Federal
Procurement (the Guidelines) are established under the authority of
section 9002 of the Farm Security and Rural Investment Act of 2002
(FSRIA), 7 U.S.C. 8102, as amended by the Food, Conservation, and
Energy Act of 2008 (FCEA). (Section 9002 of FSRIA, as amended by the
FCEA, is referred to in this document as ``section 9002''.)
II. Background
As originally enacted, section 9002 provides for the preferred
procurement of biobased products by Federal agencies. USDA proposed
guidelines for implementing this preferred procurement program on
December 19, 2003 (68 FR 70730-70746). The Guidelines were promulgated
on January 11, 2005 (70 FR 1792), and are contained in 7 CFR part 2902,
``Guidelines for Designating Biobased Products for Federal
Procurement.''
The Guidelines identify various procedures Federal agencies are
required to follow in implementing the requirements of section 9002.
They were modeled in part on the ``Comprehensive Procurement Guidelines
for Products Containing Recovered Materials'' (40 CFR part 247), which
the Environmental Protection Agency (EPA) issued pursuant to the
Resource Conservation Recovery Act (``RCRA''), 40 U.S.C. 6962.
On June 18, 2008, the FCEA was signed into law. Section 9001 of the
FCEA includes several provisions that amend section 9002 of FSRIA. Some
of these provisions require programmatic changes to the preferred
procurement program. Other provisions of the FCEA simply clarify
terminology and requirements for the preferred procurement program.
USDA is continuing to resolve issues related to implementing the
programmatic changes and will propose additional amendments to the
Guidelines at a later date. For example, the Guidelines' definition of
``biobased product'' will be later revised to include intermediate
ingredients and feedstocks, pending such programmatic changes. The
purpose of this rule is to revise the Guidelines (i.e., 7 CFR part
2902) to make them consistent with certain technical changes to section
9002 of FSRIA as required by the FCEA.
USDA believes that this rule is appropriate for direct final
rulemaking because it responds to a statutory amendment that became
effective June 18, 2008, and because it codifies USDA policy as already
stated in the first final rule designating biobased products. Elsewhere
in this issue of the Federal Register, however, USDA is publishing a
companion proposed rule that is identical in substance to this direct
final rule. The companion proposed rule provides a procedural framework
within which the rule may be finalized in the event the direct final
rule is withdrawn because of any significant adverse comment. The
comment period for this direct final rule runs concurrently with the
comment period of the companion proposed rule. Any comments received in
response to the companion proposed rule will also be considered as
comments regarding this direct final rule.
If we receive any significant adverse comment, we intend to
withdraw this final rule before its effective date by publishing a
notice in the Federal Register within 30 days after the comment period
ends. If we withdraw the direct final rule, all comments received will
be considered under the companion proposed rule in developing a final
rule under the usual notice-and-comment procedures.
III. Summary of Changes
USDA is amending eight sections of 7 CFR part 2902, as described
below.
A. 7 CFR 2902.1--Purpose and Scope
In response to the promulgation of the FCEA, USDA is amending 7 CFR
2902.1(a) to refer to compliance with that law's requirements.
B. 7 CFR 2902.2--Definitions
In response to section 9001 of the FCEA, USDA is amending 7 CFR
2902.2 by revising the definition of ``biobased product'' to add the
word ``including.'' This is to ensure that the Guidelines do not
violate U.S. trade agreements by applying exclusively to domestic
agricultural materials. Additionally, a definition for ``FCEA'' has
been added.
C. 7 CFR 2902.3--Applicability to Federal Procurements
USDA is amending 7 CFR 2902.3(c) to state that procuring agencies
must comply with section 9002(a)(2) regarding the procuring of products
composed of the highest percentage of biobased content practicable.
Section 2902.3(c) now incorrectly includes the phrase ``highest
percentage of biobased products.''
D. 7 CFR 2902.4--Procurement Programs
USDA has revised paragraph (b)(2)(ii) to read ``section 9002'' as
it refers to both FSRIA and the FCEA.
[[Page 6321]]
E. 7 CFR 2902.5--Item Designation
USDA is amending 7 CFR 2905.5(c) by adding heating oil to the list
of exclusions to this program, because it was added to the list
pursuant to section 9001 of the FCEA.
F. 7 CFR 2902.6--Providing Product Information to Federal Agencies
In response to a name change, USDA is amending 7 CFR 2902.6(a) to
refer to the USDA information Web site at http://www.biopreferred.gov
rather than to ``http://www.biobased.oce.usda.gov.''
Additionally, USDA is amending 7 CFR 2902.6(b) to include a
reference to the BioPreferred ``Guidelines for Marketing the
BioPreferred Program,'' and a link to the Federal Trade Commission
``Guides for the Use of Environmental Marketing Claims.''
G. 7 CFR 2902.8--Determining Life Cycle Costs, Environmental and Health
Benefits, and Performance
USDA is revising 7 CFR 2902.8 to comply with section 9002(a)(3)(D),
which states that guidelines issued under this paragraph may not
require a manufacturer or vendor of biobased products, as a condition
of the purchase of biobased products from the manufacturer or vendor,
to provide to procuring agencies more data than would be required to be
provided by manufacturers or vendors offering products for sale to a
procuring agency, other than data confirming the biobased content of a
product.
H. 7 CFR 2902.9--Funding for Testing
In response to a name change, USDA is amending 7 CFR 2902.9(b) to
refer to the USDA information Web site at http://www.biopreferred.gov
rather than to http://www.biobased.oce.usda.gov.
IV. Regulatory Information
A. Executive Order 12866: Regulatory Planning and Review
This rule has been reviewed under Executive Order 12866. It has
been determined that this rule, which amends the Guidelines, is not a
``significant regulatory action'' under the terms of Executive Order
12866, because its purpose is only to implement statutory amendments to
section 9002. Therefore, this rule has not been reviewed by the Office
of Management and Budget (OMB).
B. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule has been reviewed in accordance with Executive Order
12630, Governmental Actions and Interference with Constitutionally
Protected Property Rights, and does not contain policies that would
have implications for these rights.
C. Executive Order 12988: Civil Justice Reform
This rule has been reviewed in accordance with Executive Order
12988, Civil Justice Reform. This rule does not preempt State or local
laws, is not intended to have retroactive effect, and does not involve
administrative appeals.
D. Executive Order 13132: Federalism
This rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment. Provisions of this
rule will not have a substantial direct effect on States or their
political subdivisions or on the distribution of power and
responsibilities among the various government levels.
E. Unfunded Mandates Reform Act of 1995
This rule contains no Federal mandates under the regulatory
provisions of Title II of the Unfunded Mandates Reform Act of 1995
(UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal governments,
or the private sector. Therefore, a statement under section 202 of UMRA
is not required.
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 the 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 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 the Guidelines is
currently approved under OMB control number 0503-0011.
List of Subjects in 7 CFR Part 2902
Biobased products, Procurement.
For the reasons stated in the preamble, the Department of
Agriculture is amending 7 CFR chapter XXIX as follows:
CHAPTER XXIX--OFFICE OF ENERGY
PART 2902--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL
PROCUREMENT
0
1. The authority citation for part 2902 continues to read as follows:
Authority: 7 U.S.C. 8102.
0
2. Section 2902.1 is revised to read as follows:
Sec. 2902.1 Purpose and scope.
(a) Purpose. The purpose of the guidelines in this part is to
assist procuring agencies in complying with the requirements of section
9002 of the Farm Security and Rural Investment Act of 2002 (FSRIA),
Public Law 107-171, 116 Stat. 476 (7 U.S.C. 8102), as amended by the
Food, Conservation, and Energy Act of 2008, Public Law 110-246, 122
Stat. 1651, as they apply to the procurement of the products designated
in subpart B of this part.
(b) Scope. The guidelines in this part designate items that are or
can be produced with biobased products and whose procurement by
procuring agencies will carry out the objectives of section 9002.
0
3. Section 2902.2 is amended by revising the definition of ``biobased
product'' and adding a definition for ``FCEA'' to read as follows:
Sec. 2902.2 Definitions.
* * * * *
Biobased product. A product determined by USDA to be a commercial
or industrial product (other than food or feed) that is composed, in
whole or in significant part, of biological products, including
renewable domestic agricultural materials and forestry materials.
* * * * *
FCEA. The Food, Conservation and Energy Act of 2008, Pub. L. 110-
246.
* * * * *
0
4. Section 2902.3 is amended by revising paragraph (c) to read as
follows:
Sec. 2902.3 Applicability to Federal procurements.
* * * * *
(c) Procuring products composed of the highest percentage of
biobased content. Section 9002(a)(2) requires
[[Page 6322]]
procuring agencies to procure designated items composed of the highest
percentage of biobased content practicable or such products that comply
with the regulations issued under section 103 of Public Law 100-556 (42
U.S.C. 6914b-1), consistent with maintaining a satisfactory level of
competition, considering these guidelines. Procuring agencies may
decide not to procure such products if they are not reasonably priced
or readily available or do not meet specified or reasonable performance
standards.
* * * * *
0
5. Section 2902.4 is amended by revising paragraph (b)(2)(ii) to read
as follows:
Sec. 2902.4 Procurement programs.
* * * * *
(b) * * *
(2) * * *
(ii) A policy of setting minimum biobased products content
specifications in such a way as to assure that the biobased products
content required is consistent with section 9002 and the requirements
of the guidelines in this part except when such items:
(A) Are not available within a reasonable time;
(B) Fail to meet performance standards for the use to which they
will be put, or the reasonable performance standards of the Federal
agency; or
(C) Are available only at an unreasonable price.
* * * * *
0
6. Section 2902.5 is amended by revising paragraph (c)(1) to read as
follows:
Sec. 2902.5 Item designation.
* * * * *
(c) Exclusions. (1) Motor vehicle fuels, heating oil, and
electricity are excluded by statute from this program.
* * * * *
0
7. Section 2902.6 is amended by revising the first sentence of
paragraph (a) and by revising paragraph (b) to read as follows:
Sec. 2902.6 Providing product information to Federal agencies.
(a) Informational Web site. An informational USDA Web site
implementing section 9002 can be found at: http://www.biopreferred.gov.
* * *
(b) Advertising, labeling and marketing claims. Manufacturers and
vendors are reminded that their advertising, labeling, and other
marketing claims, including claims regarding health and environmental
benefits of the product, must conform to the Federal Trade Commission
``Guides for the Use of Environmental Marketing Claims,'' 16 CFR part
260 (see: http://www.access.gpo.gov/nara/cfr/waisidx_08/16cfr260_08.html). For further requirements, click on the link to the
``Guidelines for Marketing the BioPreferred Program.''
0
8. Section 2902.8 is amended by revising paragraph (a) to read as
follows:
Sec. 2902.8 Determining life cycle costs, environmental and health
benefits, and performance.
(a) Providing information on life cycle costs and environmental and
health benefits. Federal agencies may not require manufacturers or
vendors of biobased products to provide to procuring agencies more data
than would be required to be provided by other manufacturers or vendors
offering products for sale to a procuring agency, other than data
confirming the biobased contents of the products, as a condition of the
purchase of biobased products from the manufacturer or vendor.
* * * * *
0
9. Section 2902.9 is amended by revising paragraph (b)(1) to read as
follows:
Sec. 2902.9 Funding for testing.
* * * * *
(b) * * *
(1) Subject to the availability of funds and paragraph (a) of this
section, USDA will announce annually the solicitation of proposals for
cost sharing for life cycle costs, environmental and health benefits,
and performance testing of biobased products in accordance with the
standards set forth in Sec. 2902.8 to carry out this program.
Information regarding the submission of proposals for cost sharing also
will be posted on the USDA informational Web site, http://www.biopreferred.gov.
* * * * *
Dated: January 25, 2011.
Pearlie S. Reed,
Assistant Secretary for Administration, U.S. Department of Agriculture.
[FR Doc. 2011-2017 Filed 2-3-11; 8:45 am]
BILLING CODE 3410-93-P