Designation of Biobased Items for Federal Procurement, 59862-59883 [06-8368]

Agencies

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

[Federal Register Volume 71, Number 196 (Wednesday, October 11, 2006)]
[Proposed Rules]
[Pages 59862-59883]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-8368]



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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. 71, No. 196 / Wednesday, October 11, 2006 / 
Proposed Rules

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DEPARTMENT OF AGRICULTURE

Office of Energy Policy and New Uses

7 CFR Part 2902

RIN 0503-AA32


Designation of Biobased Items for Federal Procurement

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

ACTION: 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, to add 10 sections to designate the following 10 items 
within which biobased products would be afforded Federal procurement 
preference, as provided for under section 9002 of the Farm Security and 
Rural Investment Act of 2002: Bath and tile cleaners; clothing 
products; concrete and asphalt release fluids; cutting, drilling, and 
tapping oils; de-icers; durable films; firearm lubricants; floor 
strippers; laundry products; and wood and concrete sealers. USDA also 
is proposing 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 the functionally equivalent items purchased 
over the preceding fiscal year equaled $10,000 or more.

DATES: USDA will accept public comments on this proposed rule until 
December 11, 2006.

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-AA32. 
Also, please identify submittals as pertaining to the ``Proposed 
Designation of Items.''
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: fb4p@oce.usda.gov. Include RIN number 0503-AA32 
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: 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.
     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)401-4133 (TDD).

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. Summary of Today's Proposed Rulemaking
IV. Designation of Items, Minimum Biobased Contents, and Time Frame
    A. Background
    B. Items Proposed for Designation
    C. Minimum Biobased Contents
    D. Effective 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 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. E-Government Act Compliance

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), 7 U.S.C. 8102 (referred to in this document as ``section 
9002'').

II. Background

    Section 9002 of FSRIA, as amended by section 943 of the Energy 
Policy Act of 2005, Pub. L. 109-58 (Energy Policy Act), provides for 
the preferred procurement of biobased products by procuring agencies. 
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 the program. USDA amended the Guidelines to 
incorporate the new definition of ``procuring agency'' through an 
interim final rule.
    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 
the Guidelines, biobased products that are merely incidental to Federal 
funding are excluded from the preferred procurement program. 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 also requires USDA to provide information to procuring 
agencies on the availability, relative price, performance, and 
environmental and public health benefits of such items and, under 
section 9002(e)(1)(c), to recommend where appropriate the

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minimum level of biobased content to be contained in the procured 
products.
    Overlap with EPA Comprehensive Procurement Guidelines program for 
recovered content products. 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 including 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-, 
coal-, or natural gas-based components and whether the product contains 
recovered materials. Federal agencies may also ask manufacturers for 
information on a product's biobased content and its profile against 
environmental and human health measures and life cycle costs (the 
Building for Environmental and Economic Sustainability (BEES) analysis 
or ASTM International (ASTM) Standard D7075 for evaluating and 
reporting on environmental performance of biobased products). Such 
information will assist Federal agencies in determining whether the 
biobased products in question are, or are not, the same products for 
the same uses as the recovered content products and will be available 
on USDA's Web site with its catalog of qualifying biobased products.
    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.
    Federal Government Purchase of ``Green'' Products. Three components 
of the Federal government's green purchasing program are the Biobased 
Products Preferred Purchasing Program, the Environmental Protection 
Agency's Comprehensive Procurement Guidelines for products containing 
recovered materials, and the Environmentally Preferable Products 
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, or 
workers. When purchasing environmentally preferable cleaning products, 
many Federal agencies specify that products must meet Green Seal 
standards for institutional cleaning products or that products have 
been reformulated in accordance with recommendations from the U.S. 
EPA's Design for the Environment (DfE) program. Both the Green Seal 
standards and the DfE program identify chemicals of concern in cleaning 
products. These include zinc and other metals, formaldehyde, ammonia, 
alkyl phenol ethoxylates, ethylene glycol, and volatile organic 
compounds. In addition, both require that cleaning products have 
neutral or less caustic pH.
    On the other hand, some biobased products may be better for the 
environment 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 it introduces (and to what degree) new, fossil carbon into the 
atmosphere. Qualifying biobased products offer the user the opportunity 
to manage the carbon cycle and limit the introduction of new, fossil 
carbon into the atmosphere, whereas non-biobased products derived from 
fossil fuels add new, fossil carbon to the atmosphere.
    Manufacturers of qualifying biobased products under the Federal 
Biobased Products Preferred Procurement Program (FB4P) 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 BEES analysis, which examines 11 different environmental 
parameters, including human health, or the comparable ASTM D7505. 
Therefore, USDA encourages Federal procurement agencies to examine all 
available information on the environmental and human health effects of 
products when making their purchasing decisions.
    Green Building Council. More than a dozen Federal agencies use the 
U.S. Green Building Council's Leadership in Energy and Environmental 
Design (LEED) Green Building Rating Systems for new construction, 
building renovation, and building operation and maintenance. The 
systems provide criteria for implementing sustainable design principles 
in building design, construction, operation, and maintenance. Points 
are assigned to each criterion, and building projects can be certified 
to be ``certified,'' ``silver,'' ``gold,'' or ``platinum'' depending on 
the number of points for which the project qualifies. LEED for New 
Construction and Major Renovations (LEED-NC) includes a ``Materials & 
Resources'' criterion, with one point allocated for the use of rapidly 
renewable materials. Thus, the use of biobased construction products 
can help agencies obtain LEED certification for their building 
construction projects.
    Interagency Council. USDA has created, and is chairing, an 
``interagency council,'' with membership selected from among Federal 
stakeholders to the FB4P. To augment its own research, USDA consults 
with this council 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.
    Other Preferred Procurement Programs. Federal procurement officials 
should also note that biobased products may be available for purchase 
by Federal agencies through the Javits-Wagner-O'Day (JWOD) program. 
Under this program, members of organizations including the National 
Industries for the Blind and the National Industries for the

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Severely Handicapped offer products and services for preferred 
procurement by Federal agencies. A search of the JWOD online catalog 
(www.jwod.com) indicated that three of the items being proposed today 
(bath and tile cleaners, floor strippers, and laundry products) are 
available through the JWOD program. While none of the specific products 
within these items are identified in the JWOD online catalog as being 
biobased products, it is possible that biobased products are available 
or will be available in the future. Also, because additional categories 
of products are frequently added to the JWOD program, it is possible 
that biobased products within other items being proposed for 
designation today may be available through the JWOD program in the 
future. Procurement of biobased products through the JWOD program would 
further the objectives of both the JWOD program and the FB4P program.

III. Summary of Today's Proposed Rulemaking

    Today, USDA is proposing to designate the following 10 items for 
preferred procurement: Bath and tile cleaners; clothing products; 
concrete and asphalt release fluids; cutting, drilling, and tapping 
oils; de-icers; durable films; firearm lubricants; floor strippers; 
laundry products; and wood and concrete sealers. USDA is also proposing 
minimum biobased content for each of these items (see Section IV.C). 
Lastly, USDA is proposing a date by which Federal agencies must 
incorporate designated items into their procurement specifications (see 
Section IV.D).
    In today's proposed rulemaking, 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 10 designated items. Information on the 
availability, relative price, performance, and environmental and public 
health benefits of individual products within each of these 10 items is 
not presented in this notice. Further, 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, USDA will encourage the 
manufacturers of products within the designated item to voluntarily 
post their names and other contact information on the USDA FB4P Web 
site.
    Warranties. Some of the items being proposed for designation today 
may affect maintenance warranties. As time and resources allow, USDA 
will work with manufacturers on addressing any effect the use of 
biobased products may have on maintenance warranties. At this time, 
however, USDA does not have information available as to whether or not 
the manufacturers will state that the use of these products will void 
maintenance warranties. USDA encourages manufacturers of biobased 
products to work with original equipment manufacturers (OEMs) to ensure 
that biobased products will not void maintenance warranties when used. 
USDA is willing to assist manufacturers of the biobased products, if 
they find that existing performance standards for maintenance 
warranties are not relevant or appropriate for biobased products, in 
working with the appropriate OEMs to develop tests that are relevant 
and appropriate for the end uses in which biobased products are 
intended. If despite these efforts there is insufficient information 
regarding the use of a biobased product and its effect of maintenance 
warranties, USDA notes that 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 its FB4P Web site.
    Additional Information. USDA is working with manufacturers and 
vendors to post all relevant product and manufacturer contact 
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. Section V provides instructions to agencies on 
how to obtain this information on products within these items through 
the following Web site: https://www.biobased.oce.usda.gov.
    Comments. USDA invites comment on the proposed designation of these 
10 items, including the definition, proposed minimum biobased content, 
and any of the relevant analyses performed during the selection of 
these items. In addition, USDA invites comments and information in the 
following areas:
    1. One of the items being proposed for designation (durable plastic 
films) may overlap with one of the products designated under EPA's 
Comprehensive Procurement Guidelines 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. De-icers are used in a variety of applications and settings. In 
today's proposed rulemaking, this item would not apply to de-icers used 
at airports to de-ice airplanes and runways. USDA is seeking comment on 
whether this is appropriate; that is, whether there are differences in 
the de-icers used at airports and the de-icers used elsewhere that 
would preclude this item from including airport de-icers. Please 
provide detailed rationale and information to support your comments.
    3. We are proposing a single item designation for bath and tile 
cleaners. We are seeking comment as to whether there are different 
performance standards for this item and, if so, whether USDA should 
consider either creating subcategories within this item, each with its 
own minimum biobased content, or limiting the scope of the current item 
and proposing one or more new items for bath and tile cleaners. In your 
comments, please be sure to identify specific performance standards and 
rationale for either subdividing the current proposed item or for 
limiting the scope of the current proposed item and proposing one or 
more new items for bath and tile cleaners.
    4. 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 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

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standard/measure, and describing the circumstances under which the 
product is being used.
    5. We are proposing a minimum biobased content for biobased 
clothing based on a projected blend of biobased material with non-
qualifying biobased material or with non-biobased material. USDA 
requests information from manufacturers of biobased clothing on what 
blends are being used today or that might be reasonably forecast to be 
used in the future. Please provide specific information, including 
discussion on why you use or will use particular blends and what those 
blends levels are or are projected to be.
    6. 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 FB4P Web site. This information 
will then be available to Federal procuring agencies and will assist 
them in making ``best value'' purchase decisions. When possible, please 
provide appropriate documentation to support the environmental and 
human health attributes you describe.
    To assist you in developing your comments, the background 
information used in proposing these items for designation can be found 
on the FB4P Web site. All comments should be submitted as directed in 
the ADDRESSES section above.

IV. Designation of Items, Minimum Biobased Contents, and Time Frame

A. Background

    In order to designate items (generic groupings of specific products 
such as crankcase oils or products that contain qualifying biobased 
fibers) 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 Biobased Manufacturers Association) and 
commodity groups, searches the Thomas Register (a database, used as a 
resource for finding companies and products manufactured in North 
America, containing over 173,000 entries), and contacts individual 
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 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 uses the BEES analytical tool to test individual 
products within each proposed item. (Detailed information on this 
analytical tool can be found on the Web site https://www.bfrl.nist.gov/
oae/software/bees.html.) The BEES analytical tool measures the 
environmental performance and the economic performance of a product.
    Environmental performance is measured in the BEES analytical tool 
using the internationally-standardized and science-based life cycle 
assessment approach specified in the International Organization for 
Standardization (ISO) 14000 standards. The BEES environmental 
performance analysis includes human health as one of its components. 
All stages in the life of a product are analyzed: Raw material 
production; manufacture; transportation; installation; use; and 
recycling and waste management. The time period over which 
environmental performance is measured begins with raw material 
production and ends with disposal (waste management). The BEES 
environmental performance analysis also addresses products made from 
biobased feedstocks.
    Economic performance in the BEES analysis is measured using the 
ASTM standard life cycle cost method (ASTM E917), which covers the 
costs of initial investment, replacement, operation, maintenance and 
repair, and disposal. The time frame for economic performance extends 
from the purchase of the product to final disposal.
    USDA then utilizes the BEES results of individual products within a 
designated item in its consideration of the life cycle costs at the 
item level. There is a single unit of comparison associated with each 
designated item. The basis for the unit of comparison is the 
``functional unit,'' defined so that the products compared are true 
substitutes for one another. If significant differences have been 
identified in the useful lives of alternative products within a 
designated item (e.g., if one product lasts twice as long as another), 
the functional unit will include reference to a time dimension to 
account for the frequency of product replacement. The functional unit 
also will account for products used in different amounts for equivalent 
service. For example, one surface coating product may be 
environmentally and economically preferable to another on a pound-for-
pound basis, but may require twice the mass to cover one square foot of 
surface, and last half as long, as the other product. To account for 
these performance differences, the functional unit for the surface 
coating item could be ``one square foot of application for 20 years'' 
instead of ``one pound of surface coating product.'' The functional 
unit provides the critical reference point to which all BEES results 
for products within an item are scaled. Because functional units vary 
from item to item, performance comparisons are valid only among 
products within a designated item.
    The complete results of the BEES analysis, extrapolated to the item 
level, for each item proposed for designation in today's proposed 
rulemaking can be found at https://www.biobased.oce.usda.gov.
    As discussed above, the BEES analysis includes information on the 
environmental performance, human health impacts, and economic 
performance. In addition, ASTM D7505, which manufacturers may use in 
lieu of the BEES analytical tool, provides similar information. USDA is 
working with manufacturers and vendors to post this information on the 
FB4P Web site before a procuring agency asks for it, 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 post this information, 
including manufacturer contact information, on the FB4P Web site to 
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 recognizes that information related to the functional 
performance of biobased products is a primary factor in making the 
decision to purchase these

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products. USDA is gathering from manufacturers of biobased products 
being considered for designation information on industry standard test 
methods that they are using to evaluate the functional performance of 
their products. Additional standards are also being 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 identified during the development 
of this Federal Register notice for these 10 items. While this process 
identifies many of the relevant standards, USDA recognizes that the 
performance test methods identified herein do not represent all of the 
methods 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 FB4P Web site.
    In gathering information relevant to the analyses discussed above, 
USDA has made extensive efforts to contact and request information and 
product samples from representatives of all known manufacturers of 
products within the items proposed for designation. However, because 
the submission of information is on a strictly voluntary basis, USDA 
was able to obtain information and samples only from those 
manufacturers who were willing voluntarily to invest the resources 
required to gather and submit the information and samples. USDA used 
the samples to test for biobased content and the information to conduct 
the BEES analyses. The data presented are all the data that were 
submitted in response to USDA requests for information from all known 
manufacturers of the products within the 10 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 are 
sufficient to support designation of the items in today's proposed 
rulemaking.
    To propose an item for designation, USDA must have sufficient 
information on a sufficient number of products within an item to be 
able to assess its availability and its economic and technological 
feasibility, including its life cycle costs. For some items, there may 
be numerous products available. For other items, there may be very few 
products currently available. Given the infancy of the market for some 
items, it is not unexpected that even single-product items will be 
identified. Further, given that the intent of section 9002 is largely 
to stimulate the production of new biobased products and to energize 
emerging markets for those products, USDA has determined that the 
identification of two or more biobased products within an item, or even 
a single product with two or more suppliers, is sufficient to consider 
the designation of that item. 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 USDA biobased program Web site at https://
www.biobased.oce.usda.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 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 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 groups of approximately 10 items, a new rulemaking 
package will be developed to designate the items within that group. The 
list of items 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.
    In today's proposed rulemaking, USDA is proposing to designate 10 
items for the preferred procurement program: Bath and tile cleaners; 
clothing products; concrete and asphalt release fluids; cutting, 
drilling, and tapping oils; de-icers; durable films; firearm 
lubricants; floor strippers; laundry products; and wood and concrete 
sealers. USDA has determined that each of these 10 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 10 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.

    Mature Markets. Section 2902.5(c)(2) of the final guidelines states 
that USDA will not designate items for preferred procurement that are 
determined to have mature markets. Mature markets are described as 
items that had significant national market penetration in 1972. USDA 
contacted manufacturers, manufacturing associations, and industry 
researchers to determine if, in 1972, biobased products had a 
significant market share within

[[Page 59867]]

any of the items proposed for designation today. USDA found that 
biobased products within none of the 10 items proposed for designation 
today had a significant market share in 1972 and that, generally, the 
companies that produce biobased products within these proposed 
designated items have been in business for only 10 to 20 years.
    Overlap with EPA-Designated Recovered Content Products. In today's 
proposed rule, one of the 10 items may overlap with the EPA-designated 
recovered content product ``Nonpaper Office Products: Plastic trash 
bags.'' This item is durable plastic films. For this item, USDA is 
requesting that certain information on the qualifying biobased products 
be made available by its manufacturers to assist Federal agencies in 
determining if an overlap exists between durable plastic films and 
plastic trash bags (the applicable EPA-designated recovered content 
product). As noted earlier in this preamble, USDA is requesting 
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 FB4P Web site.
    Exemptions. When proposing items for preferred procurement under 
the FB4P, USDA will identify, on an item-by-item basis, any item that 
would be exempt from preferred procurement on the basis of their use in 
products and systems designed or procured for combat or combat-related 
missions. USDA believes it is inappropriate to apply the biobased 
purchasing requirement to tactical equipment unless the Department of 
Defense has documented that these products can meet the performance 
requirements for such equipment and are available in sufficient supply 
to meet domestic and overseas deployment needs. After evaluating these 
situations for each of the 10 items being proposed for designation, 
USDA is proposing to exempt firearm lubricants, de-icers, and clothing 
products from preferred procurement under the FB4P when used in combat 
or combat-related missions.
    USDA is proposing an exemption for all designated items when used 
in spacecraft systems and launch support equipment, because failure of 
such items could lead to catastrophic consequences. Many, if not all, 
items that USDA is or is planning to designate for preferred 
procurement are or will be used in space applications. Frequently, such 
applications used these items in ways that are different from their 
more ``conventional'' use on Earth. It is difficult, if not impossible, 
to forecast what situations may occur when these items are used in 
space and how they will perform. Therefore, USDA believes it is 
reasonable to limit the preferred procurement program to items used in 
more conventional applications and is proposing to exempt all 
designated items used in space applications from the FB4P.
    For each item being proposed for exemption, the exemption does not 
extend to contractors performing work for DoD or NASA. For example, if 
a contractor is producing a part for use on the space shuttle, the 
metalworking fluid the contractor uses to produce the part should be 
biobased (provided it meets the specifications for metalworking). 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 applications. For example, if the part being produced by the 
contractor would actually be part of the space shuttle, then the 
exemption applies.
    Each of the 10 proposed designated items are discussed in the 
following sections.
1. Bath and Tile Cleaners
    Bath and tile cleaners are products designed to clean deposits on 
bath tubs, shower doors, shower curtains, bathroom tiles, floors, 
doors, counter tops, etc. They are available both in concentrated and 
ready-to-use forms.
    As noted earlier in this preamble, USDA is requesting comment on 
whether there should be one or more subcategories within this item 
based on required performance properties of the item. For example, bath 
and tile cleaners used in medical situations might be required to meet 
different performance standards from those used in households. If this 
is the case, then there may be differences in the level of biobased 
content depending on the performance standard to be met. As proposed, 
USDA is not differentiating between settings in which bath and tile 
cleaners are used.
    Procuring agencies should note that, as discussed in section II of 
this preamble, not all biobased cleaning products are ``environmentally 
preferable'' to non-biobased products. Unless cleaning products have 
been formulated to contain no (or reduced levels of) metals and toxic 
and hazardous constituents, they can be harmful to aquatic life, the 
environment, or workers. When purchasing environmentally preferable 
cleaning products, Federal agencies must compare the ``cradle-to-
grave'' impacts of the manufacture, use, and disposal of both biobased 
and non-biobased products.
    For bath and tile cleaners, USDA identified 16 different 
manufacturers producing 29 individual biobased products. These 16 
manufacturers do not necessarily include all manufacturers of biobased 
bath and tile cleaners, merely those identified during USDA information 
gathering activities. Information supplied by these manufacturers 
indicates that these products are typically tested against an industry 
performance standard and are being used commercially. While other 
applicable performance standards may exist, applicable industry 
performance standards against which these products have been typically 
tested, as identified by manufacturers of products within this item, 
include:
     Boeing Specification D6-7127, Cleaning Interiors 
of Commercial Transport Aircraft.
     Green Seal GS-37, Green Seal Environmental 
Standard for General-Purpose, Bathroom, Glass, and Carpet Cleaners Used 
for Industrial and Institutional Purposes.
    USDA contacted procurement officials with various procuring 
agencies including GSA, several offices within the Defense Logistics 
Agency, the OFEE, USDA Departmental Administration, the National Park 
Service, EPA, Oak Ridge National Laboratory, and OMB in an effort to 
gather information on the purchases of bath and tile cleaners and 
products within the other nine items proposed for designation today. 
Communications with these officials lead to the conclusion that 
obtaining credible current usage statistics and specific potential 
markets within the Federal government for biobased products within the 
10 proposed designated items is not possible at this time. Most of the 
contacted officials reported that procurement data are reported in 
higher level groupings of materials and supplies than the proposed 
designated items. Also, the purchasing of such materials as part of 
contracted services and with individual purchase cards used to purchase 
products locally further obscures credible data on purchases of 
specific products.
    USDA also investigated the Web site FEDBIZOPPS.gov, a site which 
lists Federal contract purchase opportunities greater than $25,000. The 
information provided on this Web site, however, is for broad categories 
of products rather than the specific types of products that are 
included in today's rulemaking. Therefore, USDA has been unable to 
obtain data on the amount of bath and

[[Page 59868]]

tile cleaners purchased by procuring agencies. However, Federal 
agencies routinely perform cleaning activities, or procure contract 
services, for cleaning their bathroom facilities. Thus, they have a 
need for bath and tile cleaners and for services that require the use 
of bath and tile cleaners. Designation of bath and tile cleaners will 
promote the use of biobased products, furthering the objectives of this 
program.
    An analysis of the environmental and human health benefits and the 
life cycle costs of biobased bath and tile cleaners was performed for 
two of the products using the BEES analytical tool. Table 1 summarizes 
the BEES results for the two bath and tile cleaners. As seen in Table 
1, the environmental performance score, which includes human health, 
ranges from 0.0129 to 0.0130 points per gallon of bath and tile 
cleaner. The environmental performance score indicates the share of 
annual per capita U.S. environmental impacts that is attributable to 
one gallon of the product, expressed in 100ths of 1 percent. For 
example, the total amount of criteria air pollutants emitted in the 
U.S. in one year was divided by the total U.S. population to derive a 
``criteria air pollutants per person value.'' The production and use of 
one gallon of bath and tile cleaner sample A was estimated to 
contribute 0.000002 percent of this value.

      Table 1.--Summary of BEES Results for Bath and Tile Cleaners
------------------------------------------------------------------------
                                              Bath and tile cleaners
               Parameters                -------------------------------
                                             Sample A        Sample B
------------------------------------------------------------------------
BEES Environmental Performance--Total             0.0130          0.0129
 Score\1\...............................
    Acidification (5%)..................          0.0000          0.0000
    Criteria Air Pollutants (6%)........          0.0002          0.0001
    Ecological Toxicity (11%)...........          0.0004          0.0052
    Eutrophication (5%).................          0.0044          0.0003
    Fossil Fuel Depletion (5%)..........          0.0029          0.0031
    Global Warming (16%)................          0.0024          0.0011
    Habitat Alteration (16%)............          0.0000          0.0000
    Human Health (11%)..................          0.0010          0.0013
    Indoor Air (11%)....................          0.0000          0.0000
    Ozone Depletion (5%)................          0.0000          0.0000
    Smog (6%)...........................          0.0015          0.0005
    Water Intake (3%)...................          0.0002          0.0013
Economic Performance (Life Cycle Costs            1.69            7.43
 ($)) \2\...............................
    First Cost..........................          1.69            7.43
    Future Cost (3.9%)..................      (\3\)           (\3\)
                                         -------------------------------
Functional Unit.........................     1 gallon of bath and tile
                                                     cleaner.
------------------------------------------------------------------------
\1\ Numbers in parentheses indicate weighting factor.
\2\ Costs are per functional unit.
\3\ For this item, no significant/quantifiable performance or durability
  differences were identified among competing alternative products.
  Therefore, future costs were not calculated.

    When evaluating the information presented in Table 1, as well as in 
the subsequent tables presented in this preamble, it should be noted 
that comparisons of the environmental performance scores are valid only 
among products within a designated item. Thus, comparisons of the 
scores presented in Table 1 and the scores presented in tables for 
other proposed designated items are not meaningful.
    The numbers in parentheses following each of the 12 environmental 
impacts listed in the tables in this preamble indicate weighting 
factors. The weighting factors represent the relative importance of the 
12 environmental impacts, including human health impacts, that 
contribute to the BEES Environmental Score. They are derived from lists 
of the relative importance of these impacts developed by the EPA 
Science Advisory Board for the purpose of advising EPA as to how best 
to allocate its limited resources among environmental impact areas. 
Note that a lower Environmental Performance score is better than a 
higher score.
    Life cycle costs presented in the tables in this preamble are per 
the appropriate functional unit for the proposed designated item. 
Future costs are discounted to present value using the OMB discount 
rate of 3.9 percent.
    The life cycle costs of the submitted bath and tile cleaners range 
from $1.69 to $7.43 (present value dollars) per gallon. Present value 
dollars presented in this preamble represent the sum of all costs 
associated with a product over a fixed period of time, including any 
applicable costs for purchase, installation, replacement, operation, 
maintenance and repair, and disposal. Present value dollars presented 
in this preamble reflect 2006 dollars. Dollars are expressed in present 
value terms to adjust for the effects of inflation. The complete 
results of the BEES analysis, extrapolated to the item level, for each 
item proposed for designation in today's proposed rulemaking can be 
found at https://www.biobased.oce.usda.gov.
2. Clothing Products
    Clothing products are coverings designed to be worn on a person's 
body. These products include coverings for the torso and limbs, as well 
as coverings for the hands, feet, and head. While this item applies to 
all types of clothing, some products within this item may not be 
applicable to specialized types of clothing, such as those categorized 
as person protective devices. Procuring agencies, therefore, need to 
assess an individual product's performance specifications for 
applicability for such specialized types of clothing.
    For the reasons cited earlier in this notice, USDA is proposing to 
exempt this item from preferred procurement under the FB4P when used in 
products and systems designed or procured for combat or combat-related 
missions and in spacecraft systems and launch support equipment.
    For biobased clothing products, USDA identified 3 different 
manufacturers producing 5 individual biobased products. These 3

[[Page 59869]]

manufacturers do not necessarily include all manufacturers of biobased 
clothing products, merely those identified during USDA information 
gathering activities. Information supplied by these manufacturers 
indicates that many of these products are typically tested against 
multiple industry standards and are being used commercially. While 
other applicable performance standards may exist, applicable industry 
performance standards against which these products have been typically 
tested, as identified by manufacturers of products within this item, 
include:
     NATICK Military Wicking Rate of Fabric;
     NATICK Military Air Permeability;
     NATICK Military Fabric Count;
     NATICK Military Weight;
     NATICK Military Seam Strength;
     NATICK Military Burst Strength;
     NATICK Military MVT Rate;
     NATICK Military pH; and
     NATICK Military Dimensional Stability.
    USDA attempted to gather data on the potential market for biobased 
products within the Federal government as discussed in the section on 
bath and tile cleaners. These attempts were largely unsuccessful. 
However, various Federal agencies procure clothing products for use by 
their employees. Thus, they have a need for clothing products. 
Designation of clothing products will promote the use of biobased 
products, furthering the objectives of this program.
    An analysis of the environmental and human health benefits and the 
life cycle costs of biobased clothing products was performed for one of 
the products using the BEES analytical tool. Table 2 summarizes the 
BEES results for the clothing product. As seen in Table 2, the 
environmental performance score, which includes human health, is 0.0143 
points per one XL T-shirt. The environmental performance score 
indicates the share of annual per capita U.S. environmental impacts 
that is attributable to one case of the product, expressed in 100ths of 
1 percent.

         Table 2.--Summary of BEES Results for Clothing Products
------------------------------------------------------------------------
                                                            Clothing
                                                            products
                      Parameters                       -----------------
                                                            Sample A
------------------------------------------------------------------------
BEES Environmental Performance--Total Score \1\.......            0.0143
    Acidification (5%)................................            0.0000
    Criteria Air Pollutants (6%)......................            0.0001
    Ecological Toxicity (11%).........................            0.0010
    Eutrophication (5%)...............................            0.0002
    Fossil Fuel Depletion (5%)........................            0.0073
    Global Warming (16%)..............................            0.0019
    Habitat Alteration (16%)..........................            0.0000
    Human Health (11%)................................            0.0024
    Indoor Air (11%)..................................            0.0000
    Ozone Depletion (5%)..............................            0.0000
    Smog (6%).........................................            0.0006
    Water Intake (3%).................................            0.0008
Economic Performance (Life Cycle Costs ($)) \2\.......           12.50
    First Cost........................................           12.50
    Future Cost (3.9%)................................        (\3\)
    Functional Unit...................................       (\4\)
------------------------------------------------------------------------
\1\ Numbers in parentheses indicate weighting factor.
\2\ Costs are per functional unit.
\3\ For this item, no significant/quantifiable performance or durability
  differences were identified among competing alternative products.
  Therefore, future costs were not calculated.
\4\ One XL T-shirt.

    The life cycle costs of the submitted clothing product is $12.50 
(present value dollars) per XL T-shirt.
3. Concrete and Asphalt Release Fluids
    Concrete and asphalt release fluids are products designed to 
provide a lubricating barrier between the composite surface materials 
(e.g., concrete or asphalt) and the container (e.g., wood or metal 
forms, truck beds, roller surfaces, etc.). They provide a non-sticking 
surface to help prevent waste and to improve clean up procedures.
    For reasons cited earlier in this notice, USDA is proposing to 
exempt this item from preferred procurement under FB4P when used in 
spacecraft systems and launch support equipment.
    For biobased concrete and asphalt release fluids, USDA identified 
23 different manufacturers producing 37 individual products. These 23 
manufacturers do not necessarily include all manufacturers of biobased 
concrete and asphalt release fluids, merely those identified during 
USDA information gathering activities. Information supplied by these 
manufacturers indicates that these products are typically tested 
against multiple industry performance standards and are being used 
commercially. While other applicable performance standards may exist, 
applicable industry performance standards against which these products 
have been typically tested, as identified by manufacturers of products 
within this item, include:
     ASTM D445-04e2, Standard Test Method for Kinematic 
Viscosity of Transparent and Opaque Liquids (and the Calculation of 
Dynamic Viscosity);
     ASTM 5864-00, Standard Test Method for Determining Aerobic 
Aquatic Biodegradation of Lubricants or Their Components;
     ASTM D92, Standard Test Method for Flash and Fire Points 
by Cleveland Open Cup Tester; and
     ASTM D97, Standard Test Method for Pour Point of Petroleum 
Products.
    USDA attempted to gather data on the potential market for biobased 
products within the Federal government as discussed in the section on 
bath and tile cleaners. These attempts were largely unsuccessful. 
However, Federal agencies routinely procure such products for paving 
and construction, or contract for paving and construction services 
involving the use of such products. Thus, they have a need for

[[Page 59870]]

concrete and asphalt release fluids and for services that use concrete 
and asphalt release fluids. Designation of biobased concrete and 
asphalt release fluids will promote the use of biobased products, 
furthering the objectives of this program.
    An analysis of the environmental and human health benefits and the 
life cycle costs of biobased concrete and asphalt release fluids was 
performed for two of the products using the BEES analytical tool. Table 
3 summarizes the BEES results for the two biobased concrete and asphalt 
release fluids. As seen in Table 3, the environmental performance 
score, which includes human health, ranges from 0.5194 to 0.7453 points 
per 1000 gallons of release product (diluted and ready for use). The 
environmental performance score indicates the share of annual per 
capita U.S. environmental impacts that is attributable to 1000 gallons 
of the product (diluted and ready for use), expressed in 100ths of 1 
percent.

   Table 3.--Summary of BEES Results for Concrete and Asphalt Release
                                 Fluids
------------------------------------------------------------------------
                                           Concrete and asphalt release
                                                      fluids
               Parameters                -------------------------------
                                             Sample A        Sample B
------------------------------------------------------------------------
BEES Environmental Performance--Total             0.7453          0.5194
 Score \1\..............................
    Acidification (5%)..................          0.0001          0.0000
    Criteria Air Pollutants (6%)........          0.0077          0.0053
    Ecological Toxicity (11%)...........          0.0827          0.0252
    Eutrophication (5%).................          0.0121          0.0290
    Fossil Fuel Depletion (5%)..........          0.3097          0.2624
    Global Warming (16%)................          0.0927          0.0616
    Habitat Alteration (16%)............          0.0000          0.0000
    Human Health (11%)..................          0.1203          0.0883
    Indoor Air (11%)....................          0.0000          0.0000
    Ozone Depletion (5%)................          0.0000          0.0000
    Smog (6%)...........................          0.0526          0.0123
    Water Intake (3%)...................          0.0674          0.0353
Economic Performance (Life Cycle Costs          604.82          154.97
 ($)) \2\...............................
    First Cost..........................        604.82          154.97
    Future Cost (3.9%)..................      (\3\)           (\3\)
                                         -------------------------------
Functional Unit.........................      1,000 gallons of release
                                          product (diluted and ready for
                                                      use).
------------------------------------------------------------------------
\1\ Numbers in parentheses indicate weighting factor.
\2\ Costs are per functional unit.
\3\ For this item, no significant/quantifiable performance or durability
  differences were identified among competing alternative products.
  Therefore, future costs were not calculated.

    The life cycle cost of the submitted concrete and asphalt release 
fluids was $154.97 to $604.82 (present value dollars) per 1000 gallons 
of product, diluted and ready for use.
4. Cutting, Drilling, and Tapping Oils
    Cutting, drilling, and tapping oils are products designed to 
provide lubrication and reduce wear and friction on the contact parts 
for cutting, drilling, and tapping machinery, helping these parts last 
longer. This item only applies to neat oils, and does not apply to 
water emulsions.
    For the reasons cited earlier in this notice, USDA is proposing to 
exempt this item from preferred procurement under the FB4P when used in 
products and systems designed or procured for spacecraft systems and 
launch support equipment.
    For biobased cutting, drilling, and tapping oils, USDA identified 
13 different manufacturers producing 33 individual biobased products. 
These 13 manufacturers do not necessarily include all manufacturers of 
biobased cutting, drilling, and tapping oils, merely those identified 
during USDA information gathering activities. Information supplied by 
these manufacturers indicates that many of these products have been 
tested against multiple industry performance standards and are being 
used commercially. While other applicable performance standards may 
exist, applicable industry performance standards against which these 
products have been typically tested, as identified by manufacturers of 
products within this item, include:
     ASTM D130, Standard Test Method for Corrosiveness to 
Copper from Petroleum Products by Copper Strip Test;
     ASTM D1401-02, Standard Test Method for Water Separability 
of Petroleum Oils and Synthetic Fluids;
     ASTM D1748-02, Standard Test Method for Rust Protection by 
Metal Preservatives in the Humidity Cabinet;
     ASTM D2266-01, Standard Test Method for Wear Preventive 
Characteristics of Lubricating Grease (Four-Ball Method);
     ASTM D2270-04, Standard Practice for Calculating Viscosity 
Index From Kinematic Viscosity at 40 and 100 [deg]C;
     ASTM D2783-03, Standard Test Method for Measurement of 
Extreme-Pressure Properties of Lubricating Fluids (Four-Ball Method);
     ASTM D287-92(2000)e1, Standard Test Method for API Gravity 
of Crude Petroleum and Petroleum Products (Hydrometer Method);
     ASTM D2982-98(2004), Standard Test Method for Detecting 
Glycol-Base Antifreeze in Used Lubricating Oils;
     ASTM D2983-04a, Standard Test Method for Low-Temperature 
Viscosity of Lubricants Measured by Brookfield Viscometer;
     ASTM D3233-93(2003), Standard Test Methods for Measurement 
of Extreme Pressure Properties of Fluid Lubricants (Falex Pin and Vee 
Block Methods);
     ASTM D455, Standard Test Method for Kinematic Viscosity of 
Transparent and Opaque Liquids (and the Calculation of Dynamic 
Viscosity);
     ASTM D56-05, Standard Test Method for Flash Point by Tag 
Closed Cup Tester;
     ASTM D5864-00, Standard Test Method for Determining 
Aerobic

[[Page 59871]]

Aquatic Biodegradati