Designation of Biobased Items for Federal Procurement, 13686-13706 [06-2323]

Agencies

• DEPARTMENT OF AGRICULTURE
• Office of Energy Policy and New Uses
• Energy Policy and New Uses Office, Agriculture Department

[Federal Register Volume 71, Number 51 (Thursday, March 16, 2006)]
[Rules and Regulations]
[Pages 13686-13706]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-2323]



[[Page 13685]]

-----------------------------------------------------------------------

Part II





Department of Agriculture





-----------------------------------------------------------------------



Office of Energy Policy and New Uses



-----------------------------------------------------------------------



7 CFR Part 2902



Designation of Biobased Items for Federal Procurement; Final Rule

Federal Register / Vol. 71, No. 51 / Thursday, March 16, 2006 / Rules 
and Regulations

[[Page 13686]]


-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Office of Energy Policy and New Uses

7 CFR Part 2902

RIN 0503-AA26


Designation of Biobased Items for Federal Procurement

AGENCY: Office of Energy Policy and New Uses, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Agriculture (USDA) is amending 7 CFR 
part 2902, Guidelines for Designating Biobased Products for Federal 
Procurement, to add six sections to designate the following six items 
within which biobased products will be afforded Federal procurement 
preference, as provided for under section 9002 of the Farm Security and 
Rural Investment Act of 2002: Mobile equipment hydraulic fluids; roof 
coatings; water tank coatings; diesel fuel additives; penetrating 
lubricants; and bedding, bed linens, and towels. USDA also is 
establishing minimum biobased content for each of these items. 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 of functionally equivalent items purchased 
over the preceding fiscal year equaled $10,000 or more. However, USDA 
is deferring the effective date for two items (water tank coatings and 
bedding, bed linens, and towels) until such time that more than one 
manufacturer of products in these two items is identified. USDA 
additionally is revising section 2902.2 to add definitions for 
``biodegradability,'' ``EPA-designated recovered content product,'' and 
``functional unit'' and section 2902.8 to adopt applicable ASTM 
International performance tests to verify biodegradability.

DATES: This rule is effective April 17, 2006. However, as to water tank 
coatings and bedding, bed linens, and towels, Federal agencies will not 
be required to grant those items a preference until USDA learns of the 
availability of two or more manufacturers of products within that item 
and announces that availability in a future Federal Register notice.

FOR FURTHER INFORMATION CONTACT: Marvin Duncan, USDA, Office of the 
Chief Economist, Office of Energy Policy and New Uses, Room 4059, South 
Building, 1400 Independence Avenue SW., MS-3815 Washington, DC 20250-
3815; e-mail: mduncan@oce.usda.gov; phone (202) 401-0461. Information 
regarding the Federal Biobased Products Preferred Procurement Program 
is available on the Internet at https://www.biobased.oce.usda.gov.

SUPPLEMENTARY INFORMATION: The information presented in this preamble 
is organized as follows:

I. Authority
II. Background
III. Discussion of Comments
IV. Regulatory Information
    A. Executive Order 12866: Regulatory Planning and Review
    B. Regulatory Flexibility Act (RFA)
    C. Executive Order 12630: Governmental Actions and Interference 
with Constitutionally Protected Property Rights
    D. Executive Order 12988: Civil Justice Reform
    E. Executive Order 13132: Federalism
    F. Unfunded Mandates Reform Act of 1995
    G. Executive Order 12372: Intergovernmental Review of Federal 
Programs
    H. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    I. Paperwork Reduction Act
    J. Government Paperwork Elimination Act Compliance

I. Authority

    These items are designated under the authority of section 9002 of 
the Farm Security and Rural Investment Act of 2002 (FSRIA), 7 U.S.C. 
8102 (referred to in this document as ``section 9002'').

II. Background

    On July 5, 2005, USDA published in the Federal Register (70 FR 
38612) a proposed rule to designate the following six items for the 
biobased products preferred procurement program: Mobile equipment 
hydraulic fluids; roof coatings; \1\ water tank coatings; diesel fuel 
additives; penetrating lubricants; and bedding, bed linens, and towels. 
USDA has determined that each of these six items meets the necessary 
statutory requirements; that they are being produced with biobased 
products and that their procurement will carry out the following 
objectives of section 9002: To improve demand for biobased products; to 
spur development of the industrial base through value-added 
agricultural processing and manufacturing in rural communities; and to 
enhance the Nation's energy security by substituting biobased products 
for products derived from imported oil and natural gas.
---------------------------------------------------------------------------

    \1\ At proposal, this item was identified as ``urethane roof 
coatings,'' based on the specific formulation of the biobased 
product available at that time. USDA believes limiting this item to 
urethane-based roof coating is unnecessarily restrictive, especially 
in the light of another biobased product that has become available 
that is not urethane-based. Therefore, USDA is designating the more 
generic ``roof coatings'' as the item for preferred procurement 
under this program.
---------------------------------------------------------------------------

    When USDA designates by rulemaking an item (a generic grouping of 
products) for preferred procurement under the Federal Biobased Products 
Preferred Procurement Program (FB4P), manufacturers of all products 
under the umbrella of that item that meet the requirements to qualify 
for preferred procurement can claim that status for their products. To 
qualify for preferred procurement, a product must be within a 
designated item and must contain at least the minimum biobased content 
if one has been established for the designated item. When the 
designation of specific items is finalized, USDA will invite the 
manufacturers of these qualifying products to post information on the 
product, contacts, and performance testing on its FB4P Web site, http:/
/www.biobased.oce.usda.gov. Procuring agencies will be able to utilize 
this Web site as one tool to determine the availability of qualifying 
biobased products under a designated item.
    Some of the biobased items designated for preferred procurement may 
overlap with products designated under the Environmental Protection 
Agency's (EPA) Comprehensive Procurement Guidelines program for 
recovered content products. Where that occurs, an EPA-designated 
recovered content product (also known as ``recycled content products'' 
or ``EPA-designated products'') has priority in Federal procurement 
over the qualifying biobased product. In situations where USDA believes 
there may be an overlap, it plans to ask manufacturers of qualifying 
biobased products to provide additional product and performance 
information to Federal agencies to assist them in determining whether 
the biobased products in question are, or are not, the same products 
for the same uses as the recovered content products. This information 
will be available on USDA's Web site with its catalog of qualifying 
biobased products.
    In cases where USDA believes an overlap with EPA-designated 
recovered content products may occur, manufacturers will be asked to 
indicate the various suggested uses of their product and the 
performance standards against which a particular product has been 
tested. In addition, depending on the type of biobased product, 
manufacturers may also be asked to provide other types of information, 
such as whether the product contains petroleum-based components and 
whether the product contains recovered

[[Page 13687]]

materials. Federal agencies may also ask manufacturers for information 
on a product's biobased content and its profile against environmental 
and health measures and life cycle costs (the Building for 
Environmental and Economic Sustainability (BEES) analysis or ASTM 
Standard D7075 for evaluating and reporting on environmental 
performance of biobased products). Such information will permit 
agencies to determine whether or not an overlap occurs.
    Where a biobased item is used for the same purposes and to meet the 
same requirements as an EPA-designated recovered content product, the 
Federal agency must purchase the recovered content product. 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 
certain environmental or health requirements that the EPA-designated 
recovered content product would not meet, then the biobased product 
should be given preference, subject to cost, availability, and 
performance.
    This final rule designates three items for preferred procurement 
for which there may be overlap with EPA-designated recovered content 
products. These items are: (1) Mobile equipment hydraulic fluids, (2) 
roof coatings, and (3) penetrating lubricants. Qualifying products 
under these three items may overlap with lubricating oils containing 
re-refined oil and recovered content roofing materials, depending on 
how these products are to be used.
    Since publication of the proposed rule to designate items for the 
FB4P, section 9002 was amended by section 943 of the Energy Policy Act 
of 2005, Pub. L. 109-58 (Energy Policy Act). Section 943 of the Energy 
Policy Act amended the definitions section of FSRIA, 7 U.S.C. 8101, by 
adding a definition of ``procuring agency'' that includes both Federal 
agencies and ``any person contracting with any Federal agency with 
respect to work performed under that contract.'' The amendment also 
made Federal contractors, as well as Federal agencies, expressly 
subject to the procurement preference provisions of section 9002 of 
FSRIA. However, because this program requires agencies to incorporate 
the preference for biobased products into procurement specifications, 
the statutory amendment makes no substantive change to this program. 
USDA intends to further amend the Guidelines to incorporate the new 
definition of ``procuring agency'' by publishing a notice of final rule 
at a later date.
    In making future designations, USDA will continue to conduct market 
searches to identify manufacturers of products within items. USDA will 
then contact the identified manufacturers to solicit samples of their 
products for voluntary submission for biobased content testing and for 
the BEES analytical tool. Based on these results, USDA will then 
propose new items for designation for preferred procurement.
    USDA plans to create and chair an ``interagency council,'' with 
membership selected from among Federal stakeholders to the FB4P. USDA 
will use this council to provide consultation in identifying the order 
of item designation, 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.
    Finally, USDA plans to identify approximately 10 items in each 
future rulemaking. USDA has developed a preliminary list of items for 
future designation. This list is available on the FB4P Web site. While 
this list presents an initial prioritization of items for designation, 
USDA cannot identify with any certainty which items will be presented 
in each of the future rulemakings. Items may be added or dropped and 
the information necessary to designate an item may take more time to 
obtain than an item lower on the prioritization list.

III. Discussion of Comments

    USDA solicited comments on the proposed rule for 60 days ending on 
September 6, 2005. USDA received comments from 31 commenters by that 
date. The comments were from private citizens, individual companies, 
industry organizations, one foreign government, and various Federal 
agencies. With few exceptions, the commenters supported the goals of 
section 9002 and the designation of the six items. Most of the 
commenters, however, had specific questions, concerns, or 
recommendations regarding some aspect of the designation of these 
items. Several comments related to the process USDA has established for 
designating items, and other comments were relevant to the January 11, 
2005, Guidelines for Designating Biobased Products for Federal 
Procurement.
    Several procuring agencies expressed concerns in their comments 
that the effect of designating an item for which only one manufacturer 
of a biobased product is currently available would result in a sole 
source situation that would diminish competition. The two items of 
concern are water tank coatings and bedding, bed linens, and towels. 
Accordingly, while USDA is designating these items for preferred 
procurement, it is deferring specifying the date by which agencies must 
give preferred procurement to these two items under this program. For 
both items, a preferred procurement effective date will be identified 
when two or more manufacturers of products within the item have been 
identified. USDA actively seeks additional manufacturers of biobased 
products under these two items so that the items can be re-proposed for 
preferred procurement quickly.
    Specific comments, and the USDA responses to them, are addressed 
below.

General Comments

    Comment: A number of commenters stated that the Federal Register 
notice lacks detail on the names, manufacturers of the products, the 
performance tests, and, in the case of bedding, bed linens, and towels, 
the names of the biobased fibers, and that the information is not 
available on the Web site. Three of the commenters expressed concern 
over the lack of technical information in the preamble (e.g., lack of 
information on availability, relative price, performance and 
performance standards, BEES results, and environmental and public 
health benefits of products, as required by section 9002) and on the 
Web site and that, without this information, it is not possible to 
evaluate the effects of the proposed designations and to ascertain the 
technical performance of these products. One commenter stated that the 
preamble does not discuss how well the product performs when compared 
to what is available as a non-biobased alternative and, if Federal 
agencies cannot determine the performance characteristics of biobased 
products, they cannot reasonably call for them to be purchased. Another 
commenter was concerned that the lack of information on performance 
tests could lead to duplication of effort by agencies separately 
testing products to determine suitability and conformance with their 
specifications.
    Response: USDA agrees that the information the commenters are 
requesting (names, manufacturers of the products, and performance 
tests) is useful and much of it is needed to make

[[Page 13688]]

decisions concerning the purchase of products within a designated item. 
Therefore, USDA will provide information on the standards and 
performance tests for those products that have been tested for purposes 
of designation on its FB4P Web site at the time of publishing future 
proposed rules, and will at the same time make that information 
available in the proposed rules. However, USDA has reached an agreement 
with manufacturers not to publish their names in the Federal Register 
when designating items. This agreement was reached to encourage 
manufacturers to submit products for testing to support the designation 
of an item. Once an item has been designated, the manufacturers of 
products within the designated item may elect to post their names and 
other contact information on the USDA FB4P Web site. USDA will also 
link its Web site to Defense Standardization Program and GSA-related 
standards lists used as guidance when procuring products. Instructions 
on accessing these lists on USDA's FB4P Web site will be included in 
its designation rules.
    Further, USDA also will invite and actively encourage manufacturers 
of qualifying products within a designated item to post, on USDA's 
password-protected Web site, performance standards by which qualifying 
products' performances have been evaluated.
    Comment: One commenter stated that USDA should encourage 
manufacturers to submit all relevant health and environmental data (key 
environmental attributes, environmental standards met, etc.) and post 
this information on the Web site.
    Response: USDA agrees with the commenter that the posting of such 
information on the FB4P Web site is important. Among the information 
that section 2902.6 of the Guidelines requests manufacturers to post to 
the FB4P Web site are environmental and health benefits. Sections 
2902.6 and 2902.8 additionally state that manufacturers and vendors are 
to provide relevant information to a procuring agency upon the agency's 
request concerning product characteristics, life cycle costs, and 
environmental and health benefits. Both the BEES analytical tool and 
ASTM D7075, which a manufacturer may use in lieu of the BEES analytical 
tool, take the environmental and health impacts, as well as other 
parameters, of biobased products into account.
    USDA is working with manufacturers and vendors to post all this 
information on the FB4P Web site before a procuring agency asks for it, 
in order to make the preferred program more efficient. Steps USDA has 
implemented, or will implement, include: Making direct contact with 
submitting companies through email 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. All of these efforts are intended to educate 
the manufacturers and other stakeholders on the benefits of this 
program and the need to post this information to make it available to 
procurement officials.
    Comment: One commenter stated that it is illogical to require 
Federal agencies to purchase items, when it is only voluntary for the 
vendors to furnish the information for agencies to use in making the 
key purchase decision about the items. The commenter stated that the 
Web site USDA is developing to contain information on the availability, 
relative price, performance, and environmental and public health 
benefits of such products will be a useful tool for Federal agencies, 
but its efficacy depends on the voluntary submittal of product 
information by the manufacturers. The commenter, therefore, recommended 
that it be mandatory that manufacturers place relevant information on 
the Web site if the manufacturers are to participate in the preferred 
procurement program.
    Response: USDA agrees that there appears to be an ``illogical'' 
aspect between ``requiring'' agencies to purchase biobased products 
within designated items, while the manufacturers ``voluntarily'' post 
on the FB4P Web site information that is needed in making purchasing 
decisions. USDA points out that procuring agencies are not required to 
purchase products if one of three conditions exist, including the 
inability of a product to meet performance standards. If a manufacturer 
fails to make this information available to a procuring agency, then 
the procuring agency may choose not to purchase the manufacturer's 
product. Thus, it is in the best interest of manufacturers and vendors 
to make all product performance information available to procuring 
agencies, whether through the FB4P Web site or through some other 
means.
    Comment: Two commenters requested that manufacturers and consumers 
be provided with more information on the selection of the proposed 
items and the process used to determine which items are likely to be 
designated next. One of the commenters stated that the designation 
process appears to be somewhat arbitrary and that manufacturers have 
little idea as to which products will be designated, how they will be 
categorized, or how they will be selected. This commenter stated that 
the current proposal provides little information on why USDA selected 
these six items, as opposed to other items currently available that 
will satisfy the procurement requirements. This commenter believes that 
manufacturers and consumers would be better served by a more 
transparent process.
    The other commenter also stated that the process and criteria for 
product designation have not been communicated, which results in 
industry and start-up companies not knowing which products will be 
selected next for designation. This commenter also stated that there is 
very little background or rationale on why these six products were 
selected.
    Response: USDA agrees that it has not provided enough information 
on the selection process used or the order in which USDA intends to 
pursue designation. USDA will correct this problem by placing 
information on the model used by USDA and its contractor, Iowa State 
University, to select items for designation on the FB4P Web site. In 
general, the items were 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 independent manufacturers. These evaluations begin by 
asking the following questions about the products within an item:
     Are they cost competitive with non-biobased products?
     Do they meet industry performance standards?
     Are they readily available on the commercial market?
    In addition to these primary concerns, 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 companies producing biobased 
products in this item?

[[Page 13689]]

     Are there products available in this item?
     What level of difficulty is expected when designating this 
item?
     Is there a Federal demand for the product?
     Are Federal procurement personnel looking for biobased 
products?
     Will an item create a high demand for biobased feed 
stocks?
     Does manufacturing of products within this item increase 
potential for rural development?
    As noted earlier, USDA will also identify the latest set of items 
being considered for designation and the order in which USDA plans to 
pursue their designation. However, the list may change, with items 
being added or dropped, and 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. Further, as noted earlier, USDA plans to create and chair an 
interagency council, made up of Federal agencies, to consult with USDA 
with respect to identifying the order of items for future designations.
    With regard to the comment concerning why these six items were 
selected first for designation, the preamble to the proposed rule for 
these six items noted that they were selected because ``USDA was able 
to expeditiously identify and analyze these items.'' USDA will continue 
to make every effort to target those items most used by the Federal 
procurement sector. USDA will attempt to follow the model in 
prioritizing the order in which items are proposed for designation, 
but, to some extent, all future sets of items proposed for designation 
will depend on when sufficient information is made available by 
manufacturers of products within a designated item.
    Comment: One commenter stated that the time frame for designating 
these first items has been too long, the process is overly complex and 
burdensome, and the paperwork burden required for manufacturers is 
unduly burdensome, especially for smaller manufacturers. The commenters 
urged USDA to quickly designate other items that will have the greatest 
impact on the biobased marketplace and to streamline the designation 
process.
    A second commenter also stated that the program is taking too long 
in its implementation and that additional products with big marketplace 
impacts must be designated immediately. The commenter also stated 
generally that the implementation seems to be rather complex, time 
consuming, and expensive.
    Response: USDA agrees that it has taken longer than planned to 
propose the first set of items for preferred procurement. Because 
information required to designate items is being submitted on a 
voluntary basis, USDA is working with manufacturers, as discussed 
earlier, to facilitate obtaining the information required to designate 
items more quickly.
    USDA is also working with manufacturers to facilitate the process 
by which items are designated for preferred procurement and is striving 
to reduce, where feasible, the cost and burden to manufacturers 
associated with designating items. Efforts to accomplish this include, 
but are not necessarily limited to, developing a simplified BEES survey 
to encourage company input; funding the development of basic production 
data for several common agricultural feed stocks; providing assistance 
to manufacturers submitting BEES information to support item 
designation, including identifying potential sources for questionnaire 
data and helping manufacturers calculate specific inputs; contacting 
and urging material suppliers to provide necessary life-cycle, 
environmental, and human health data not typically maintained by end-
product manufacturers; and considering the potential benefit of 
intermediate material BEES analysis as a means of reducing further a 
manufacturer's input burden (e.g., a BEES analysis on a biobased 
polymer could possibly reduce the burden on manufacturers using that 
polymer to produce water bottles, thereby making the bottle 
manufacturer only responsible for reporting on their specific process). 
In addition to these actions, USDA is covering the costs of both the 
biobased content testing and the actual BEES analyses used in the 
designation of items.
    USDA welcomes suggestions for further reducing the burden to 
manufacturers, while providing the level of information necessary to 
designate items.
    Comment: One commenter stated that USDA should judge the 
performance of biobased materials against their intended application 
and avoid performance criteria that discriminate against biobased 
alternatives. According to the commenter, industry performance criteria 
may frequently discriminate against biobased alternatives when such 
criteria are designed in the absence of a biobased alternative. The 
commenter, therefore, urged USDA to consider alternative criteria when 
such discrimination is evident.
    Response: USDA agrees with the commenter that the performance of 
biobased materials should be judged against their intended applications 
and that performance criteria should not be biased against biobased 
alternatives. To assist procurement agencies in evaluating products 
within designated items against their intended applications, USDA is 
providing a forum on its FB4P Web site for manufacturers to publish all 
performance standards for their products. USDA will also be providing 
information on its Biobased Affirmative Procurement Program (APP), 
which is USDA's preferred procurement program. In the APP, USDA will 
provide guidance to procuring agencies on how to structure their 
preferred procurement program in order to carry out section 2902.4 of 
the Guidelines, which requires procuring agencies to reexamine their 
performance requirements and specifications to ensure they are not 
unfair against the procurement of biobased products and that they are 
still necessary and relevant.
    Comment: One commenter stated that USDA needs to provide 
clarification on how the FB4P will take into account the international 
obligations of the U.S. under NAFTA and the World Trade Organization 
(WTO) Agreement on Government procurement. Two other commenters stated 
that, under NAFTA and the WTO Agreement on Government Procurement, the 
treatment of Canadian-sourced goods shall be no less favorable than 
that of U.S.-sourced goods and, therefore, no U.S. domestic preference 
is permitted. The commenters proposed that USDA cancel the proposed 
designation of these items, give preference to goods produced by 
signatories of NAFTA and the WTO, or modify the application of the 
preference so that it only applies to procurements that fall below the 
thresholds of NAFTA and the WTO agreement.
    Response: Section 9002 requires Federal agencies to develop 
procurement programs that ensure the purchase of designated biobased 
products to the maximum extent practicable and that are ``consistent 
with applicable provisions of Federal procurement law.'' In making such 
purchases, Federal agencies are to give a preference to the procurement 
of items ``composed of the highest percentage of biobased products 
practicable, consistent with maintaining a satisfactory level of 
competition.'' A procurement program that treats biobased products from 
designated countries (as that term is defined in the Federal 
Acquisition Regulation (FAR) Sec.  25.003)) no less favorably than 
U.S.-sourced biobased products: (1) Maintains a preference for biobased

[[Page 13690]]

products over non-biobased products; (2) maintains a satisfactory level 
of competition; and (3) ensures consistency with Federal procurement 
law, including Part 25 of the FAR. FAR part 25 sets out the policies 
and procedures for acquiring foreign products and services and 
implements the Buy American Act, trade agreements, and other laws and 
regulations regarding the acquisition of foreign products and services. 
Accordingly, biobased products from any designated country would 
receive the same preference extended to U.S.-sourced biobased products. 
In order to clarify and make this policy applicable to all biobased 
designations, USDA plans to propose a broad-based revision to the USDA 
biobased procurement guidelines (7 CFR part 2902) in its next proposed 
rule designating additional items.
    Comment: One commenter stated that USDA should explain how it 
intends to be sure that biobased products are made from domestic and 
not imported feedstocks. The commenter provided an example in which 
janitorial cleaners commonly have a linear alcohol ethoxylate 
surfactant that can be made from plant or petrol. However, the plant-
derived material is from palm kernel or coconut oil, neither of which 
is a U.S. domestic product. Thus, the commenter asked: (1) How will 
USDA verify that the organic molecules come from U.S. grown material? 
and (2) how will USDA be certain that, when a product can be made from 
a U.S. crop, it is indeed being made with a U.S. crop and not imported 
material (e.g., D-limonine can come from the U.S., Brazil, and other 
citrus growing countries)? The commenter concludes by stating that the 
real intent of the law is not being met by the present testing outlined 
in the proposed rule.
    Response: USDA intends that manufacturers will self-certify that 
each product being offered as a biobased product for preferred 
procurement contains qualifying feedstock. As noted in the response to 
the previous comment, qualifying feedstocks for biobased products can 
be from ``designated countries'' as well as from the United States.
    Comment: Two commenters stated that USDA should publish its model 
Biobased Products Procurement Preference Program so that agencies can 
understand the recommended acquisition strategy. One of the commenters 
stated that understanding the acquisition strategy is necessary to 
enable evaluation of the effects of the proposed designations on 
Government procurement processes or general operations.
    Response: USDA agrees with the commenters and is continuing to 
develop its policies and its Biobased APP for designated items to 
support its own procurement practices. USDA is also working to develop 
outreach and education programs, based on the USDA Biobased APP, to 
assist other procuring agencies in complying with the requirements of 
this program. USDA has issued the first generation of its Biobased APP, 
which includes several procurement tools, such as sample contract 
language for biobased procurement. As additional documents become 
available, USDA will publish them to the biobased Web site at https://
www.usda.gov/biobased.
    Additionally, USDA will continue to work with OFPP and the Office 
of the Federal Environmental Executive (OFEE) to coordinate and 
implement Federal biobased procurement policies.
    Comment: One commenter urged USDA to work aggressively to bring all 
Federal agencies on board to implement the program within the one-year 
transition period indicated in the proposed rule.
    Another commenter expressed concern that the one-year effective 
date may not be adequate, especially where product testing is needed 
and in particular for coatings, including roofing system coatings. The 
commenter recommended that USDA lengthen the implementation period to 
18 months, at least for the first set of designated items, and up to 5 
years for product testing and revision of performance specifications. 
The commenter pointed to the following as reasons for the need to 
extend the implementation period: The timeline for availability clauses 
in the FAR that are in development for biobased products; the process 
lengthening or even being stopped due to vendor protests, depending on 
the language in the FAR; the time for vendors to incorporate biobased 
provisions in a logical way, without the pressure to take shortcuts 
that could negatively affect agencies; product testing of coatings that 
could take several years if the procedures include corrosion or 
durability testing; revision of procurement specifications may require 
additional years to pass through various reviews and be finalized; and 
changes in specifications would lead to new product verifications, 
which require money to be allocated through the Planning, Programming, 
and Budgeting System process that may take several years.
    Response: In response to the first commenter, USDA's Departmental 
Administration is working with OFEE and OFPP, and through the 
interagency council, to assist all Federal agencies in accomplishing 
the goal of implementing the program in a timely manner.
    The second commenter expressed concerns about the implementation 
period not being long enough. Agencies have one year from the effective 
date of the Guidelines to implement procurement preference programs for 
designated items. This is consistent with the legislative requirement 
found in Section 9002(d) of FSRIA, which states that ``Federal agencies 
shall, within one year after the date of publication of applicable 
guidelines under subsection (e), or as otherwise specified in such 
guidelines, assure that such specifications require the use of biobased 
products consistent with the requirements of this section.''
    USDA proposed the one-year time frame in the proposed Guidelines 
(69 FR 70730, December 19, 2003, proposed section 2902.5), but in the 
Guidelines (70 FR 1792, January 11, 2005, section 2902.4(c)), USDA 
indicated each designated-item rulemaking would specify the time frame 
for each item. In the proposed designated-item rulemaking (70 FR 38612, 
July 5, 2005), USDA proposed a one-year time frame for each of the six 
items. Once the final rule is published, Federal agencies have up to 
one year to comply with these requirements (i.e., revise their 
procurement requirements and specifications for implementing the 
preferred purchasing of biobased products within these six items).
    At the time these items are promulgated for designation, Federal 
agencies will have had a minimum of 18 months (from when these 
designated items were proposed) up to 27 months (from when the 
Guidelines were first proposed and these requirements were first laid 
out) available to them to implement these requirements. This time frame 
is at minimum equivalent to or longer than that requested by the 
commenter for this first set of designated items. It is USDA's position 
that this is a sufficient time frame for procuring agencies to identify 
biobased items meeting agency performance standards and to take the 
actions necessary for incorporating designated items into their 
preferred procurement program. USDA also notes that, from the time the 
Guidelines were first proposed, agencies will have longer time frames 
to implement these requirements for items proposed for designation in 
future rulemakings.
    In response to the commenter's concerns about the amount of time 
required for product testing, USDA reemphasizes that procuring agencies

[[Page 13691]]

are not required to purchase biobased products that do not meet the 
reasonable performance requirements of the agency. In cases where 
biobased products have not undergone the necessary performance testing 
within the one-year implementation period, procuring agencies would not 
be expected to purchase the products. USDA will post to its FB4P Web 
site information on performance standards against which products have 
been tested. In addition, USDA will identify what tests appear to be 
relevant and, through working with OFEE and OFPP, what standards 
procuring agencies require for a given item. To help manufacturers 
conduct performance testing, USDA is making funds available through 
section 2902.9 of the Guidelines.
    In conclusion and for these reasons, USDA continues to believe that 
a one-year effective date for the implementation of the procurement 
preference for the items designated in this final rulemaking is 
reasonable and is not extending the time frame for these requirements.
    Comment: One commenter pointed out that the Federal Register notice 
is silent with regard to how Federal agencies should treat existing 
contracts, and stated that the cost of terminating contracts would make 
the cost for the biobased products unreasonable.
    Response: Agencies have one year from the effective date of the 
Guidelines to implement procurement preference programs for designated 
items and the products within those designated items. Therefore, 
agencies should have sufficient time to plan for upcoming procurements. 
Agencies are not expected to terminate or modify existing contracts; 
however, they are encouraged to add requirements for the purchase of 
biobased products when options are exercised, especially to long-term 
contracts. This is consistent with other green procurement preference 
programs.
    Comment: One commenter stated that, because the intent of section 
9002 of FSRIA is largely to stimulate the production of new biobased 
markets and to energize emerging markets, USDA should establish a 
periodic review of biobased product qualification criteria and market 
availability of each listed item to determine when they have achieved 
market ``maturity.''
    Response: USDA believes that the intent of section 9002 is not only 
to stimulate new biobased markets, but to maximize the use of biobased 
substitutes for petroleum-based products on a continuing basis. Given 
this intent, USDA believes it is unnecessary to reevaluate the status 
of designated items that have reached market maturity.
    Comment: One commenter stated that information on current usage 
statistics and specific potential markets for biobased products are 
essential to establish a baseline for an annual review of the 
effectiveness of agencies' preference programs.
    Response: USDA agrees with the comment and, as owner of this 
program, is committed to working with OFPP and OFEE in developing a 
system, including reporting requirements, to monitor the effectiveness 
of the biobased preferred procurement program. Additionally, each 
agency is required to develop baselines, as appropriate, and assess the 
effectiveness of their individual-based preference procurement program.
    Comment: One commenter stated that USDA should add ``number or 
dollar value of biobased products purchased'' to the Resource 
Conservation and Recovery Act (RCRA) or similar reports as a way to 
track FB4P.
    Response: To this end, USDA has worked with OFPP and OFEE personnel 
to insert biobased data elements into the RCRA Data Call starting in 
fiscal year 2005. USDA will continue to work with OFPP and OFEE to 
identify methods to collect data on the dollar value of biobased 
products purchased.
    Comment: One commenter stated that the Federal Register notice does 
not provide any information on the enforcement of the rules and on the 
possibility of citizen suits against the government. The commenter 
explained that punitive measures for noncompliance and the possibility 
of citizens' complaints and lawsuits would be problematic for agencies.
    Response: Section 9002 does not provide USDA or anyone else with 
the authority for the ``enforcement'' of the procurement preference or 
for suits against the government by citizens. Without such statutory 
authority, USDA cannot add enforcement requirements to the preferred 
procurement program. However, OFPP will report to Congress on the 
progress, or lack thereof, that agencies are making in purchasing 
biobased products. This report could provide an indirect boost in 
encouraging procuring agencies to give the necessary preferred 
procurement to biobased products.
    Further, given the experience of the EPA program under RCRA, which 
the language of section 9002 almost completely duplicates, USDA 
foresees little likelihood of litigation brought by the public.
    Comment: One commenter suggested that USDA clarify whether the 
preferred procurement requirement is applicable to just singular high-
dollar amount, agency-wide purchases. (According to the commenter, 
there is little incentive to small procuring agencies because they do 
not have large-scale purchases.)
    Response: The Guidelines were revised to clarify that ``[t]he 
$10,000 threshold applies to Federal agencies as a whole rather than to 
agency subgroups such as regional offices or subagencies of a larger 
Federal department or agency.'' (See section 2902.3(a).) Thus, small 
purchases by subagencies are included in the $10,000 cutoff.
    Comment: One commenter requested that USDA provide an exception for 
``incidental purchases;'' that is, purchases that are incidental to the 
purpose of Federal funding. The commenter referred to EPA's original 
procurement guidelines (48 FR 4230) and believes the same 
interpretation should be made for the biobased products purchasing 
program. To illustrate, the commenter stated that, under the incidental 
purchases rule, a construction contractor would not have to purchase 
biobased hydraulic fluid for use in its equipment because hydraulic 
fluid is incidental to the purpose of the construction contract, but 
that a contractor maintaining equipment for Federal agencies would be 
required to use biobased hydraulic fluids in the maintenance of the 
equipment. The commenter, therefore, suggested that USDA provide an 
exception for incidental purchases in the final rule.
    Response: USDA agrees that ``incidental purchases'' are not covered 
by the definition of ``procuring agency.'' The definition of 
``procuring agency'' in FSRIA section 9001, as amended by the Energy 
Policy Act of 2005, makes it clear that the requirements of section 
9002 apply to ``indirect purchases;'' i.e., purchases by contractors. 
However, the requirements to purchase biobased products do not apply to 
such purchases if they are unrelated to or incidental to the purpose of 
the Federal contract. For example, when a construction contractor 
purchases hydraulic fluid for maintenance service of construction 
equipment being used in the performance of a Federal building 
construction contract, that purchase is incidental to the purpose of 
the construction contract. The hydraulic fluid purchase would not be 
subject to the requirements of section 9002 or the guidelines issued 
today, even though some of the monies received under the contract might 
be used to finance the purchase.
    USDA will propose an amendment to the Guidelines at 7 CFR part 2902 
to clarify that incidental purchases are excepted. Agencies may, 
however,

[[Page 13692]]

encourage contractors to purchase or test biobased products in order to 
further develop markets for these products.
    Comment: One commenter stated that USDA should provide definition 
or guidance for what constitutes a price that is ``not reasonable'' 
compared to the cost of a non-biobased product.
    Response: It is the responsibility of each procurement agency to 
establish, through its policies, cost reasonableness for any products 
procured under Federal contract. While the law provides the 
``unreasonable price'' exemption, ``unreasonableness'' could be based 
on a comparison of product price, life-cycle costs, and other benefit 
information. USDA encourages procuring agencies to consider all facets 
of a product when evaluating prices.
    Additionally, through the FB4P Web site and other initiatives, USDA 
will provide as much relevant information as possible to the 
individuals responsible for purchasing items and to the program 
officials who are developing specifications for the procurement of 
products and services. For example, information from the BEES 
analytical tool provides information on the first cost of a product and 
on the product's life-cycle cost. The BEES results also provide 
information on the environmental and health benefits of the products, 
which will assist procuring agents in assessing the benefits of a 
product when determining the reasonableness of costs. Similar 
information will also be provided if the ASTM standard D7075 for 
evaluating and reporting on the life-cycle assessment and costs of 
biobased products is used.
    Comment: One commenter questioned whether Federal agencies will be 
expected to provide proof if they determine that biobased alternatives 
do not meet established performance standards.
    Response: Procuring agencies should follow their procurement rules 
and OFPP guidance on buying non-biobased products when biobased 
products exist and should document exceptions taken for price, 
performance, and availability.

Designation of ``Single Product'' Items and Limited Number of 
Manufacturers

    Comment: Three commenters expressed concerns regarding the 
designation of items for which only one product has been identified or 
where a limited number of manufacturers have been identified. The 
issues and questions raised by the commenters are as follows:
     USDA needs to explain what constitutes a ``sufficient'' 
number of products to be ``adequate'' for designation and how 
sufficient competition can be maintained where only one product is 
identified;
     Designating single source products would place the 
Government, at least initially, in a position of sole source 
procurements and it could place the manufacturer in the position of not 
being able to meet demand; and
     With a limited number of manufacturers of biobased 
products, there is a possibility that competition will be limited and 
Federal agencies will pay more for biobased alternatives.
    Response: USDA agrees that designating items for which there is 
only one manufacturer of a biobased product under this item is 
problematic for the reasons discussed previously. Of the six biobased 
items proposed for designation, two (water tank coatings, and bedding, 
bed linens, and towels) are currently known to have a single 
manufacturer. USDA believes that the best way to address the problem of 
a single-known manufacturer of a biobased product within an item is to 
designate that item for preferred procurement, but to defer the 
effective date that procurement agencies would be required to give 
procurement preference until such time that there are two or more 
manufacturers of products within the item. Therefore, USDA is 
designating all six items, including items for which there is a single 
known manufacturer, but determination of the effective date for the 
single source items will be deferred indefinitely. USDA believes that 
it is beneficial to proceed with the designation of these two items, 
despite the delayed effective date, because it will encourage more 
manufacturers to produce products within these two items and alerts 
manufacturers of these items to an opportunity to sell their products. 
These effects, in turn, further the statutory goals of the program.
    With respect to those items for which preferred procurement is 
being deferred, USDA will specify the item's effective date in a future 
document in the Federal Register when it identifies two or more 
manufacturers of products within the item. Until such a document is 
published in the Federal Register, USDA will not permit manufacturers 
to post product, performance, and contact information on the FB4P Web 
site for those items with only one manufacturer. In future proposed 
designation rules under the FB4P, USDA intends to propose for 
designation only items for which there is more than one manufacturer.

Relationship to Other Federal Programs

    Comment: One commenter requested that USDA and EPA work together to 
identify items (or products) that may be covered by section 9002 of 
FSRIA and by section 6002 (Comprehensive Procurement Guideline) of the 
Resource Conservation and Recovery Act, Pub. L. 94-580 (RCRA). The 
commenter pointed out that roofing materials, hydraulic fluids, and 
penetrating lubricants all may be qualified for procurement preference 
under both section 9002 of FSRIA and under section 6002 of RCRA. The 
commenter requested that if overlap is identified, USDA work with the 
Office of Federal Procurement Policy at the Office of Management and 
Budget (OMB), OFEE, and EPA to resolve any conflict.
    Another commenter stated that USDA needs to provide additional 
clarification on how these two sections relate to each other, 
indicating that the language in the Guidelines (section 2902.3(b)) is 
vague.
    Response: USDA agrees that procurement agents might find themselves 
in the position of having to choose between giving procurement 
preference to a product that qualifies for preferred procurement under 
section 9002 of FSRIA or to a competing product that qualifies for 
preferred procurement under section 6002 of RCRA and that guidance is 
required. USDA plans on working with the interagency council (discussed 
earlier in this preamble) to determine product choices amongst the 
various preferred procurement programs for future procurements.
    To the extent that products within items designated in this notice 
and in future notices under section 9002 of FSRIA are alternatives to 
products that are to be given preferred procurement under section 6002 
of RCRA, USDA acknowledges that the comprehensive procurement 
guidelines under section 6002 of RCRA take precedent. That is, 
everything else being equal about a product that qualifies for 
preferred procurement under section 9002 of FSRIA and a competing 
product that falls under section 6002 of RCRA, a procurement agent 
would give preference to section 6002 of RCRA when making a purchase 
decision between the two products. USDA believes the language in 
section 2902.3(b) is sufficient to determine when section 9002 yields 
to section 6002.
    However, for performance reasons, a biobased product might be more 
appropriate for a given use. USDA offers the following example: If a 
procurement agent has the choice of purchasing

[[Page 13693]]

either an EPA-designated recovered content product (in this case, 
lubricating oil containing re-refined oil) for use as a fluid in a 
hydraulic system or a competing biobased mobile equipment hydraulic 
fluid, where both fluids are used for the same purposes and meet the 
same requirements, the procurement agent must give procurement 
preference to the EPA-designated recovered content product. If, on the 
other hand, a biobased hydraulic fluid can meet certain environmental 
or health requirements that the EPA-designating recovered content 
product would not meet, then the procuring agent should give purchase 
preference to the biobased hydraulic fluid, subject to cost, 
availability, and performance.
    Additionally, designation of items under this program not only 
qualifies the item for a Federal procurement preference, but also makes 
biobased products under that item eligible to use the biobased label in 
the commercial marketplace, as authorized by FSRIA. USDA currently is 
developing the labeling program. Thus, duplicate designation of items 
under this program and the RCRA program is not inappropriate.
    In conclusion, USDA does not see the need to modify the designation 
of items in this notice, even when products within an item would be 
subject to both sections. However, USDA has added language in the final 
rule for mobile equipment hydraulic fluids, roof coatings, and 
penetrating lubricants requesting manufacturers to provide information 
to help procuring agents identify overlap between the two programs. 
USDA will work with the interagency council to help identify potential 
overlap between the two programs in future rules.
    Comment: One commenter stated that USDA has not provided sufficient 
guidance to avoid potential conflicts in implementing both the biobased 
and the Energy Star program for roof coatings. The commenter was 
specifically concerned that there is no guidance on biobased content 
when one is purchasing Energy Star roofing material and requested that 
USDA provide guidance in the final rulemaking, including information on 
whether the minimum biobased content changes for Energy Star roofing 
material. The commenter recommended that this information be provided 
in both the preamble and in the regulatory text.
    Response: With the new Energy Star preferred procurement program, 
USDA agrees that there might be Energy Star products that procurement 
officials now will have to consider alongside biobased products in 
their procurements. Roof coatings is an example. USDA has information 
on two biobased roof coating products, one of which does not meet the 
requirements to qualify for the Energy Star rating and one that does. 
Where a product does meet the Energy Star rating, it does not mean, 
however, that procurement officials must give preference to Energy Star 
products over biobased products. To the extent that procurement 
officials have to choose between products under different preferred 
procurement programs, procurement officials should look to the FAR part 
23 for guidance regarding the relative priority of the various 
preference programs. USDA will consider whether it is appropriate to 
establish biobased content levels for Energy Star products that differ 
from those for non-Energy Star products.

BEES Analysis

    Comment: Two commenters requested that BEES analyses be done for 
the materials that are to be replaced by the biobased products so that 
a meaningful comparison of the impacts can be performed. According to 
one commenter, without making such a comparison, USDA cannot claim to 
have fully evaluated the extent to which the products proposed for 
procurement preference actually contribute to the objectives of section 
9002 of FSRIA. Using bedding, bed linens, and towels as an example, the 
commenter states that by encouraging Federal procurement of, for 
example, towels made of ``unknown'' biobased fibers, cotton may be 
displaced; and, without making a comparison of the fossil energy inputs 
(i.e., coal, oil, natural gas) needed to grow, harvest, and process 
cotton as compared to alternative ``unknown'' biobased fiber, USDA 
cannot know that substituting the biobased alternative for cotton will 
contribute to reducing national use of imported oil and natural gas, 
one of the stated goals.
    Response: USDA received similar comments during the development of 
the Guidelines, although those comments focused on replacing petroleum-
based products. As noted then, USDA agrees that it would be quite 
useful to be able to make a point-by-point comparison, using the same 
standards of measure, between a biobased and a non-biobased product 
prior to making a procurement decision. USDA also agrees that it would 
be quite useful to make a comparison between a biobased product given 
preferred procurement and a cotton or wool product that might not be 
purchased. However, under section 9002, USDA has neither the authority 
to require, nor the funding for, testing of non-biobased or other 
products that do not qualify for preferred procurement.
    Further, USDA does not believe such a comparison would make any 
difference in the implementation of the FB4P. The purpose of the FB4P 
is to open new markets for new emerging biobased products. It is 
possible that, in achieving this purpose for some of the designated 
items, biobased products may displace some products that are not 
qualifying biobased products (such as cotton shirts), as indicated by 
the commenter.
    Comment: One commenter suggested that USDA reconsider the candidate 
biobased product in any case where it does not compare on an equal or 
better basis to existing products on key attributes, such as fossil 
fuel depletion or on the overall BEES score.
    Response: The purpose of the BEES analysis is to provide 
information to procuring agencies to make informed decisions among 
biobased products within a designated item, not to disqualify biobased 
products from a designated item. The commenter is suggesting USDA use 
the overall BEES score for determining whether or not a product can be 
afforded preferred procurement over an existing product that scores 
better when analyzed using BEES. The criteria used by USDA to designate 
items (groups of products) are identified in FSRIA. The overall BEES 
score is not one of those criteria. Therefore, USDA declines the 
commenter's request.
    Comment: Two commenters recommended that the BEES input data be 
verified by an independent party. One commenter stated that USDA 
appears to have relied solely on product manufacturers to supply the 
basic data from which the BEES score is derived, and does not appear to 
have performed an independent verification. The other commenter 
inquired as to how the quality of the data inputs to the BEES life 
cycle assessment tool were assessed.
    Response: The commenters are correct in that USDA has not verified 
the information submitted by the manufacturers on the products 
submitted for the BEES analysis. That information was, and will 
continue to be, provided directly to a third party for analysis.
    The quality of data submitted to the BEES analytical tool should be 
consistent with relevant and applicable ASTM or other industry test 
standards. In addition, USDA contractors, when requested, assist 
manufacturers in preparing the data to be submitted to the BEES 
analytical tool. Those running the BEES analytical tool are certified 
by the

[[Page 13694]]

International Organization for Standardization (ISO) (i.e., they are 
ISO-certified). As such, they provide a check on the reasonableness of 
the data submitted. USDA does not otherwise independently verify data 
submitted by the manufacturers.
    Comment: One commenter pointed out that the BEES analysis provides 
a general assessment of environmental benefit and does not particularly 
focus on fossil fuel use, which is one of the principal goals of 
section 9002 of FSRIA. The commenter therefore recommended that 
consideration be given to modifying the weighting used in the BEES 
analysis so that the results will consistently select products that 
meet the program objective of substituting biobased products for fossil 
energy-based products.
    Response: The BEES analytical tool includes ``fossil fuel 
depletion'' as one of its metrics. This metric looks at the amount of 
fossil fuel consumed in the production of a biobased product. By 
looking at this metric's score between products within an item, 
procuring agencies can choose those products that use less fossil fuel. 
Thus, USDA does not believe it necessary to change the weighting scheme 
in the BEES analytical tool to achieve the outcome desired by the 
commenter. To help procuring agencies interpret the BEES results, USDA 
is coordinating with the National Institute of Standards and Technology 
(NIST) to develop additional information concerning the interpretation 
and usefulness of BEES scores and will post this information on the 
FB4P Web site.
    Comment: One commenter expressed concern that the BEES analysis is 
inherently limited in that it focuses on the material rather than the 
functionality of the material or cost of reapplying the material. For 
example, with coatings, BEES takes the life-cycle of the coating 
material into consideration, but not the impact of shorter life-cycles 
on the asset being protected by the coating. There is no cost 
consideration for shorter recoat cycles or impact on users. BEES also 
does not attempt to account for cost incurred if the coating, or a 
lubricant or hydraulic fluid, does not perform as effectively and the 
equipment it is protecting does not last as long.
    Response: USDA believes that the BEES analytical tool provides 
useful information, even in the areas of concern identified by the 
commenter as discussed below, and provides USDA with the information 
necessary to assess products within a designated item.
    First, with regard to re-applying coatings and the impact to users 
of such re-applications, BEES takes into consideration the costs of 
``initial investment, replacement, operation, maintenance and repair, 
and disposal.'' Included in ``maintenance and repair'' are 
consideration of re-applications and the impact to users of such re-
applications.
    Second, the commenter states that BEES does not take into account 
the ``functionality'' of the product (i.e., whether it performs as 
effectively as a non-biobased product when used as directed). However, 
the effectiveness of a biobased product is determined using industry 
performance standards. Further, USDA is neither using the BEES 
analytical tool as a method to determine the effectiveness of a product 
nor to promote a product as being effective because it has been 
subjected to BEES.
    Third, the commenter states that BEES does not take into account 
the shorter life-cycles on the asset (i.e., the equipment it is 
protecting does not last as long) being protected by the coating. The 
functional unit for products takes into account products used in 
different amounts in ``equivalent service.'' By equating comparisons of 
products to ``equivalent service,'' there is no shortening of life-
cycles for the asset being coated. Thus, if a biobased coating does not 
last as long (i.e., frequency of repainting is higher), the functional 
unit accounts for that.
    Fourth, the commenter states that there is no cost consideration 
for shorter recoat cycles. The functional unit developed under the BEES 
analysis accomplishes the goal of ``unitizing'' different recoating 
cycles by incorporating a time frame. For example, if differences in 
the useful lives of alternative products have been identified, the 
functional unit will include a time dimension to account for the 
frequency of product replacement.
    Comment: One commenter stated that USDA needs to recognize the 
inherent limitations of the BEES analysi