Designation of Biobased Items for Federal Procurement, 27958-27975 [E8-10109]

Agencies

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

[Federal Register Volume 73, Number 94 (Wednesday, May 14, 2008)]
[Rules and Regulations]
[Pages 27958-27975]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10109]



[[Page 27957]]

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Part IV





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; Final Rule

Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Rules 
and Regulations

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DEPARTMENT OF AGRICULTURE

Office of Energy Policy and New Uses

7 CFR Part 2902

RIN 0503-AA31


Designation of Biobased Items for Federal Procurement

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

ACTION: Final rule.

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SUMMARY: The U.S. Department of Agriculture (USDA) is amending the 
guidelines for designating biobased products for Federal procurement, 
to add ten sections to designate items, including subcategories, 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. USDA also is establishing a minimum 
biobased content for each of these items and subcategories.

DATES: This rule is effective June 13, 2008.

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 Procurement of Biobased Products (one part of the 
BioPreferred Program) is available on the Internet at https://
www.biopreferred.gov.

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

I. Authority
II. Background
III. Summary of Changes
IV. Discussion of Comments
V. 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, including their subcategories, 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

    As part of the Federal Procurement of Biobased Products, USDA 
published on August 17, 2006, a proposed rule in the Federal Register 
(FR) for the purpose of designating a total of 10 items for the 
preferred procurement of biobased products by Federal agencies 
(referred hereafter in this FR notice as the ``preferred procurement 
program''). This proposed rule can be found at 71 FR 47590. This 
rulemaking is referred to in this preamble as Round 3 (RIN 0503-AA31).
    The Round 3 proposed rule proposed designating the following items, 
including their subcategories, for the preferred procurement program: 
2-cycle engine oils; lip care products; non-durable films; \1\ 
stationary equipment hydraulic fluids; disposable cutlery; \2\ glass 
cleaners; greases, including food grade greases, multipurpose greases, 
rail track greases, truck greases, and greases not elsewhere specified 
as subcategories; dust suppressants; carpets; and carpet and upholstery 
cleaners.
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    \1\ At proposal, this item was identified as ``biodegradable 
films.'' Based on comments received, and as explained in this 
preamble, USDA has renamed this item as ``films'' and combined it 
with the proposed item ``durable films'' that was included in the 
October 11, 2006 Round 4 proposal (71 FR 59862).
    \2\ At proposal, this item was identified as ``biodegradable 
cutlery.'' Based on comments received, and as explained in this 
preamble, USDA has renamed this item as ``disposable cutlery.''
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    Today's final rule designates the following 10 items, including 
subcategories, within which biobased products will be afforded Federal 
procurement preference: 2-cycle engine oils; lip care products; films, 
including semi-durable films and non-durable films as subcategories; 
stationary equipment hydraulic fluids; disposable cutlery; glass 
cleaners; greases, including food grade greases, multipurpose greases, 
rail track greases, truck greases, and greases not elsewhere specified 
as its subcategories; dust suppressants; carpets; and carpet and 
upholstery cleaners, including spot removers and general purpose 
cleaners as subcategories. USDA has determined that each of the items, 
including the subcategories within them, being designated under today's 
rulemaking 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.
    When USDA designates by rulemaking an item (a generic grouping of 
products) for preferred procurement under the BioPreferred Program, 
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 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 BioPreferred Web 
site, https://www.biopreferred.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. Once USDA 
designates an item, procuring agencies are required generally to 
purchase biobased products within these designated items, including 
their subcategories, 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.
    Subcategorization. Most of the items USDA is considering for 
designation for preferred procurement cover a wide range of products. 
For some items, there are groups of products within the item that meet 
different markets and uses and/or different performance specifications. 
For example, within the designated item ``hand cleaners and 
sanitizers,'' some products are required to meet performance 
specifications for sanitizing, while other products do not need to meet 
these specifications. Where such subgroups, or subcategories, exist, 
USDA intends to create subcategories. Thus, for example, for the 
designated item ``hand cleaners and sanitizers,'' USDA determined that 
it was reasonable to create a ``hand cleaner'' subcategory and a ``hand 
sanitizer'' subcategory. Sanitizing specifications would be applicable 
to the later subcategory, but not the former.

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In sum, USDA looks at the products within each item to evaluate whether 
there are groups of products within the item that meet different 
performance specifications and, where USDA finds this type of 
difference, it intends to create subcategories.
    For some items, however, USDA may not have sufficient information 
at the time of proposal to create subcategories within an item. For 
example, USDA may know that there are different performance 
specifications that de-icing products are required to meet, but it has 
only information on one type of de-icing product. In such instances, 
USDA may either designate the item without creating subcategories 
(i.e., defer the creation of subcategories) or designate one 
subcategory and defer designation of other subcategories within the 
item until additional information is obtained on products within these 
other subcategories.
    Within today's rulemaking, USDA has created subcategories within 
three items--films, greases, and carpet and upholstery cleaners. For 
films, the subcategories are semi-durable films and non-durable films. 
For greases, the subcategories are: Food grade greases, multipurpose 
greases, rail track greases, truck greases, and greases not elsewhere 
specified. For carpet and upholstery cleaners, the subcategories are 
spot removers and general purpose cleaners.
    Minimum Biobased Contents. The minimum biobased contents being 
established with today's rulemaking are based on products for which 
USDA has biobased content test data. In addition to considering the 
biobased content test data for each item, USDA also considers other 
factors when establishing the minimum biobased content. These other 
factors include: Public comments received on the proposed minimum 
biobased contents; product performance information to justify the 
inclusion of products at lower levels of biobased content; and the 
range, groupings, and breaks in the biobased content test data array. 
Consideration of this information allows USDA to establish minimum 
biobased contents on a broad set of factors to assist the Federal 
procurement community in its decision to purchase biobased products.
    USDA makes every effort to obtain biobased content test data on 
multiple products within each item. For most designated items, USDA has 
biobased content test data on more than one product within a designated 
item. However, USDA must rely on biobased product manufacturers to 
voluntarily submit product information and, in some cases, USDA has 
been able to obtain biobased content data for only a single product 
within a designated item. As USDA obtains additional data on the 
biobased contents for products within these ten designated items and 
their subcategories, USDA will evaluate whether the minimum biobased 
content for a designated item or subcategory will be revised.
    USDA anticipates that the minimum biobased content of an item or 
subcategory that is based on a single product is more likely to change 
as additional products in those items and subcategories are identified 
and tested. In today's rulemaking, none of the minimum biobased 
contents are based on a single tested product.
    For all items and subcategories where additional information 
indicates that it is appropriate to revise a minimum biobased content 
established under today's rulemaking, USDA will propose the change in a 
notice in the Federal Register to allow public comment on the proposed 
revised minimum biobased content. USDA will then consider the public 
comments and issue a final rulemaking on the minimum biobased content.
    Overlap with EPA's Comprehensive Procurement Guideline program for 
recovered content products. Some of the products that are biobased 
items designated for preferred procurement may also be items the 
Environmental Protection Agency (EPA) has designated under the EPA's 
Comprehensive Procurement Guideline (CPG) for Products Containing 
Recovered Materials. 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 as identified in 7 CFR 2902.2. In 
situations where it believes there may be an overlap, USDA is asking 
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. As this information becomes available, USDA will place it on 
the BioPreferred 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 are being 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 are being asked to provide other types of information, 
such as whether the product contains petroleum-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 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.
    Section 6002 of RCRA requires a procuring agency procuring an item 
designated by EPA generally to procure such items composed of the 
highest percentage of recovered materials content practicable. However, 
a procuring agency may decide not to procure such an item based on a 
determination that the item fails to meet the reasonable performance 
standards or specifications of the procuring agency. An item with 
recovered materials content may not meet reasonable performance 
standards or specifications, for example, if the use of the item with 
recovered materials content would jeopardize the intended end use of 
the item.
    Where a biobased item is used for the same purposes and to meet the 
same Federal agency performance requirements as an EPA-designated 
recovered content product, the Federal agency must purchase the 
recovered content product. For example, if a biobased hydraulic fluid 
is to be used as a fluid in hydraulic systems and because ``lubricating 
oils containing re-refined oil'' has already been designated by EPA for 
that purpose, then the Federal agency must purchase the EPA-designated 
recovered content product, ``lubricating oils containing re-refined 
oil.'' If, on the other hand, that biobased hydraulic fluid is to be 
used to address a Federal agency's certain environmental or health 
performance requirements that the EPA-designated recovered content 
product would not meet, then the biobased product should be given 
preference, subject to 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) Films in the semi-durable films 
subcategory, (2) stationary equipment hydraulic fluids and (3) carpets. 
Depending on how they are to be used, qualifying products under

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these three items may overlap, respectively, with the EPA-designated 
recovered content products ``plastic trash bags,'' ``re-refined 
lubricating oil,'' and ``carpets (polyester).'' EPA provides recovered 
materials content recommendations for these three recovered content 
products in a Recovered Materials Advisory Notice (RMAN I). The RMAN 
recommendations for each of these CPG products can be found by 
accessing EPA's Web site https://www.epa.gov/epaoswer/non-hw/procure/
products.htm and then clicking on the appropriate product name.
    EPA is proposing to designate nylon carpets as a recovered content 
product. If and when EPA finalizes designation of nylon carpets as a 
recovered content product, then carpets would have the potential to 
overlap with these types of carpets as well as the currently EPA-
designated recovered content polyester carpets.
    Future Designations. In making future designations, USDA will 
continue to conduct market searches to identify manufacturers of 
biobased products within items. USDA will then contact the identified 
manufacturers to solicit samples of their products for voluntary 
submission for biobased content testing and for the BEES analytical 
tool. Based on these results, USDA will then propose new items for 
designation for preferred procurement.
    As stated in the preamble to the first six items designated for 
preferred procurement (71 FR 13686, March 16, 2006), 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 BioPreferred 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. Summary of Changes

    As the result of comments received on the proposed rule (see 
Section IV), USDA made changes to the rule, which are summarized below.
    Item names. The names for two of the 10 items were revised. 
``Biodegradable Films'' is now ``Films.'' ``Biodegradable Cutlery'' is 
now ``Disposable Cutlery.''
    Item Definitions. The definitions of six of the 10 items were 
revised to varying degrees. These six items are: 2-cycle engine oils; 
films; stationary equipment hydraulic fluids; disposable cutlery; 
greases; and carpets.
    Subcategories. In addition to finalizing the proposed subcategories 
under the ``greases'' item, subcategories were created for two items. 
The item that was proposed as ``biodegradable films'' and the proposed 
item ``durable films'' that was included in the October 11, 2006, Round 
4 proposal (71 FR 59862) were combined as two subcategories (semi-
durable films and non-durable films) under an item named ``films.'' The 
carpet and upholstery cleaners item was subcategorized into (1) spot 
removers and (2) general purpose cleaners.
    Minimum biobased content. Several of the proposed minimum biobased 
contents for the designated items have changed for the final rule in 
response to public comments and in consideration of available product 
performance information. As a result of the comments received regarding 
the proposed minimum biobased contents and the availability of 
additional biobased content tests for several items, USDA re-evaluated 
the proposed minimum biobased contents of all of the items.
    Items for which the minimum biobased content was changed from the 
proposed level are presented here and the rationale for the changes is 
discussed in the section of this preamble presenting the item-specific 
comments and responses.
    For 2-cycle engine oils, the proposed minimum biobased content of 7 
percent was changed to 34 percent.
    For the films item (proposed as ``biodegradable films''), the 
proposed minimum biobased content of 22 percent was changed to 45 
percent for the semi-durable films subcategory and 85 percent for the 
non-durable films subcategory.
    For the stationary equipment hydraulic fluids, the proposed minimum 
biobased content of 46 percent was changed to 44 percent.
    For the disposable cutlery item (proposed as ``biodegradable 
cutlery''), the proposed minimum biobased content of 33 percent was 
changed to 48 percent.
    For glass cleaners, the proposed minimum biobased content of 23 
percent was changed to 49 percent.
    For the greases item, the proposed 73 percent minimum biobased 
content for the multipurpose greases subcategory was changed to 72 
percent and the proposed 72 percent minimum biobased content for the 
truck greases subcategory was changed to 71 percent.
    For dust suppressants, the proposed minimum biobased content of 66 
percent was changed to 85 percent.
    For the proposed carpet and upholstery cleaners item the proposed 
minimum biobased content of 34 percent was changed to 54 percent for 
the general purpose cleaners subcategory and the minimum biobased 
content for the spot removers subcategory was set at 7 percent.
    Overlap with EPA CPG products. For the items stationary equipment 
hydraulic fluids and carpets, potential overlap with EPA CPG products 
was added to the final rule. Then, for both items that may overlap with 
EPA CPG products (re-refined lubricating oils and polyester carpets), a 
note was added to facilitate finding information on the two EPA CPG 
products.

IV. Discussion of Comments

    USDA solicited comments on the proposed rule for 60 days ending on 
October 16, 2006. 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.
    The comments contained in this Federal Register (FR) notice address 
general and specific comments related to Round 3 items. In addition to 
the information provided in the responses to public comments presented 
in this preamble, USDA has prepared a technical support document titled 
``Technical Support for Final Rule--Round 3 Designated Items,'' which 
contains documentation of USDA's efforts to research and respond to 
public comments. The technical support document is available on the 
BioPreferred Web site. The technical support document can be located by 
clicking on the Proposed and Final Regulations link on the left side of 
the BioPreferred Web site's home page (https://www.biopreferred.gov). 
Click on Supporting Documentation under Round 3 Designation under Final 
Rules. This will bring you to the link to the technical support 
document.
    The technical support document includes, but is not limited to: (1) 
Information on whether the standards presented in the preamble to the 
proposed rule are test methods, performance standards, or ``other'' 
(e.g., a certification by a trade association or council, a 
classification system) (Chapter 1.0), (2) BEES impact values for each 
item (Appendix B), and (3) a tabular and graphical presentation of the 
BEES environmental performance scores for each item (Appendix C). This 
information is being presented in the

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technical support document as the result of general comments received 
on both Rounds 2 and 3. The technical support document for Round 3 
includes additional information as identified in the remainder of this 
preamble.

General Comments

Minimum Biobased Content
    Several commenters felt that USDA was proposing minimum biobased 
contents that were too low for many of the products. These, and other, 
commenters also provided specific comments on the proposed minimum 
biobased contents for specific items. Those specific comments are 
addressed later in the preamble under Item Specific Comments. Here, 
USDA is responding to the comments that more generally address the 
procedure USDA uses in proposing minimum biobased contents.
    Comment: Several commenters were concerned about the approach USDA 
used to determine minimum biobased contents. One commenter recommended 
that, rather than setting the threshold level below the lowest 
percentage observed in the lowest end product in the survey, USDA 
reward the top half or top two thirds of the respondents, at least 
where the spread is more than 20 percentage points. Two other 
commenters recommended that USDA consider a minimum threshold of 50 
percent biobased content given that products with biobased contents 
above 50 percent are available in all categories.
    Response: In response to these public comments and ongoing 
discussions with other Federal agencies, and because several additional 
biobased content test results were obtained after proposal, USDA re-
evaluated the proposed minimum biobased contents for each of the 
proposed items. In re-evaluating the minimum biobased contents, USDA 
considered factors including the number of, and the distribution of, 
the test data points as well as the product manufacturer's claims 
related to performance, biodegradability, and range of applicability.
    In those cases where all of the products' biobased contents were 
within a narrow range and no data were available to distinguish 
significant performance differences among the products, USDA set the 
minimum biobased content at the level that would allow preferred 
procurement for all of the products for which data were available.
    For items where the products' biobased contents showed a wider 
range and included one or more significant breaks in the range, USDA 
reviewed the product information to determine if there were performance 
or applicability differences among the products that could be used for 
creating subcategories based on the groups of products that have 
similar biobased contents. For example, if the biobased contents of 
half of the products within an item were in the 30 to 50 percent range 
and the other half were in the 80 to 95 percent range, USDA considered 
whether the product information supported the creation of two 
subcategories. Information that was considered to be supportive of 
subcategorization were claims of product features such as ``special 
applications,'' ``high temperature applications,'' or ``single-use 
versus multiple-use.'' In those cases where the biobased content and 
other product information supported subcategorization, USDA has created 
subcategories in this final rule.
    In other cases, USDA has considered subcategorization for an item 
based upon initial performance information, but USDA does not currently 
have sufficient data to justify creating subcategories. Where that is 
the case, USDA has generally set the minimum biobased content based on 
the group of products with the higher biobased contents. For these 
items, USDA will continue to gather data on products within the item 
and will create subcategories in a future rulemaking if sufficient data 
are obtained.
    For some items, there was a significant range in the reported 
biobased contents but the data points were evenly spread over the 
entire range. In those cases, if there were no data to distinguish the 
features of any grouping or subset of the products, USDA has generally 
set the minimum biobased content based on the product with the lowest 
biobased content in order to allow procuring agencies the widest 
selection of products from which to select those that best meet their 
needs. As additional product performance information becomes available 
and as additional products within these items become available with 
higher biobased contents, USDA will consider increasing the minimum 
biobased content or creating subcategories where performance 
characteristics or application use justify subcategorizing.
    As a result of the re-evaluation, many of the proposed minimum 
biobased contents have been revised for the final rule. These revisions 
will be presented and discussed in the item specific sections later in 
this preamble. For two items, USDA reviewed the biobased content data 
but did not find sufficient justification for revising the proposed 
minimum biobased content level. For lip care products, 8 biobased 
content test results were available (85, 86, 88, 88, 92, 93, 98, and 
100 percent). Because this is a narrow range of data points, USDA 
proposed setting the minimum biobased content based on the product with 
a biobased content of 85 percent. Subtracting the three percentage 
points to allow for testing variability results in a minimum biobased 
content of 82 percent for this item. No public comments or additional 
data were received to support changing the proposed level. As a result, 
the proposed minimum biobased content of 82 percent was retained for 
the final rule.
    For the carpets designated item, USDA reviewed the biobased content 
data (10, 10, 23, 24, 31, 35, and 37 percent) and found that the 
biobased content of the products that have been tested increases as the 
``weight'' of the carpet increases. In most of these products the 
biobased material is used as the carpet backing and the thicker the 
backing, the higher the biobased content. The product with 37 percent 
biobased content also has a small amount of biobased material 
incorporated into the carpet face. USDA considered the possibility of 
creating subcategories within this item based on performance features 
(such as durability) but does not have sufficient data to justify 
subcategorization at this time. Because there are no significant breaks 
in the range of data points and the overall range is small, USDA has 
retained the proposed 7 percent minimum biobased content for this item. 
USDA will continue to gather information on this item and will consider 
creating subcategories in a future rulemaking.
Biobased Content Testing
    Comment: One commenter recommended that the ASTM active standard 
D6866-06 (standard test methods for determining the biobased content of 
natural range materials using radiocarbon and isotope ratio mass 
spectrometry analysis) replace the historical D6866-04.
    Response: USDA agrees that the most recent and active ASTM standard 
needs to be used. In order to minimize the need to update the 
regulation, USDA has decided to simply refer to the base ASTM 
designation (in this case, ASTM 6866) and drop the year designation (in 
this case, the -04) and instead specify in the final rule that ``the 
current version'' of ASTM D6866 be used for determining biobased 
content.

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Information on Designated Items
    Comment: One commenter, noting that USDA stated that its attempts 
to gather data were ``largely unsuccessful,'' urged USDA to re-examine 
and improve upon its prior efforts to gather complete, technically 
sound information on products within designated items and to use that 
information to further refine the program in the future.
    Response: USDA uses the phrase ``largely unsuccessful'' in the 
context of its efforts to obtain information on the amount of products 
within designated items that Federal agencies are using (for example, 
see Section IV.A, Executive Order 12866 in this preamble) and not on 
the information associated with the products within each item. 
Information on the usage of products would assist USDA to make 
estimates of the potential economic impact of the rule.
    USDA has in place a procedure to gather technical information on 
products within each item it proposed for designation. As USDA proposes 
additional items for designation, it seeks to improve this process with 
each successive rulemaking to ensure the information it has is 
technically sound. One area in which USDA is using the improved 
information is in the development of subcategories within items. There 
will always be some uncertainty in the data obtained, but USDA will 
continue to propose items for designation for preferred procurement 
with the data it has in hand. USDA encourages the provision of 
additional information on products within items prior to their being 
designated for preferred procurement. The items being considered for 
preferred procurement can be found on the BioPreferred Web site.
    Comment: One commenter suggested that the data that form the basis 
for USDA's decisions and their source be available to the public. The 
commenter noted, as one example, that USDA intends to post public 
comments on the ``positive environmental and human health attributes'' 
of products on its Web site, and make the comments available to Federal 
procurement agencies to ``* * * assist them in making `best value' 
purchasing decisions.''
    Response: Since the first round of six items were designated for 
preferred procurement, USDA has provided significantly more data on 
each item being proposed for preferred procurement on the BioPreferred 
Web site. At the BioPreferred Web site, technical information is 
provided on products within the items. The BioPreferred Web site can be 
accessed by the public at https://www.biopreferred.gov.
    USDA is concerned that the commenter might believe that USDA is 
using comments received on the ``positive'' attributes of biobased 
products as a basis for designating an item for preferred procurement, 
while ignoring potential ``negative'' attributes. This is not the case. 
The availability of information on the environmental and health 
attributes and life costs of items is part of the basis for proposing 
an item for preferred procurement. USDA is using the BEES analysis, 
which is ``neutral'' in regards to whether an environmental impact of a 
biobased product is ``positive'' or ``negative,'' to provide some of 
this information. Finally, the statute authorizing the preferred 
procurement program for biobased products requires USDA to, in part, 
provide information on ``environmental and health benefits'' of such 
materials and items. Thus, USDA has a statutory obligation to make such 
information on the positive environmental and human health attributes 
available.
    One way USDA is implementing this requirement is by posting public 
comments on the positive environmental and human health attributes of 
products on the BioPreferred Web site. Given the infancy of most 
biobased product markets, this type of information is often not 
generally known and providing access to such information, provided it 
is documented, is important to the success of the BioPreferred Program. 
If such information is anecdotal, it will be so indicated.
    Comment: One commenter suggested that USDA take reasonable steps to 
ensure that the information that is offered to government agencies and 
that is provided on the government's Web site be objective and 
accurate. The commenter states that, while USDA's preference for using 
data and certifications that come from consensus standards 
organizations is commendable, it does not alleviate this concern. 
According to the commenter, there appears to be no current mechanism to 
verify accuracy and that USDA's request ``When possible, please provide 
appropriate documentation to support the environmental and human health 
attributes you describe'' alone appears to be insufficient to ensure 
fairness.
    Response: USDA agrees with the commenter that the information made 
available to government agencies concerning biobased products needs to 
be objective and accurate. To address this situation, USDA is requiring 
manufacturers to provide documentation for information that will be 
posted directly on the BioPreferred Web site. If, in the opinion of 
USDA, such claims cannot be sufficiently supported, they will not be 
posted on the BioPreferred Web site. A manufacturer is still allowed to 
post such ``undocumented'' claims on their own Web sites, as any other 
manufacturer of any other product can do. USDA is not responsible for 
the information posted on a manufacturer's Web site. Thus, information 
obtained from the manufacturer's Web site needs to be considered in 
this context. Because USDA makes this distinction in the information it 
allows to be posted on the BioPreferred Web site, USDA disagrees with 
the commenter that this mechanism results in ``unfair'' results.
    The second step that USDA plans to implement to help ensure the 
accuracy of the information posted on the BioPreferred Web site is an 
audit program. Under this audit program, USDA will randomly select 
products for sampling to ensure the accuracy of the information on 
selected products. The size of the BioPreferred Program, however, makes 
it difficult for USDA to reasonably verify every claim on every 
product. Thus, USDA must rely on an audit program.
    Lastly, USDA notes that, by requiring the biobased content on 
products to be determined in an ISO-compliant facility, USDA is 
reasonably ensuring the accuracy of the reported biobased content. In 
conclusion, USDA believes the above steps meet the commenter's 
concerns.
Biobased Polymers
    Comment: One commenter requested that USDA evaluate and address the 
effect that biobased polymers will have on current recycling streams 
and markets. According to the commenter, to the best of their 
knowledge, no technology exists to screen out biobased products during 
the recycling process and the presence of a small fraction of biobased 
polymers in the recycling stream may result in unintended consequences 
to the recycling infrastructure.
    Response: The purpose of the BioPreferred Program is to encourage 
the purchase of biobased products, including products that are commonly 
recycled. However, like the commenter, USDA is concerned that such 
products are disposed of in an environmentally responsible manner. USDA 
has consulted with EPA and with representatives of the Association of 
Post-Consumer Plastic Recyclers

[[Page 27963]]

(APCPR) to discuss this issue. APCPR explained that their primary 
concern with attempts to place PLA or other biobased plastics in 
existing recycling streams related to the negative impacts that these 
biobased plastics have on the recycling of PET. They pointed out that 
over seven billion pounds of PET are used annually in the country and 
that the recycling of PET has been adopted on a large-scale basis. 
There are two primary concerns related to the introduction of biobased 
plastics into the PET recycling stream. First, the presence of biobased 
plastics even in very small amounts (less than 1 percent) causes the 
resulting recycled plastic to lose the clarity which is demanded in the 
largest market for these products (``soda'' and water bottles). Even a 
slight haze in the final product is unacceptable to the bottling 
industry. The second concern relates to the actual recycling 
technology. PET is separated from HDPE and other petroleum-based 
plastics by floatation. PET floats in water and the others do not. Most 
biobased plastics also float, however, making the separation of PET 
from biobased plastics using floatation technology impossible. Thus, if 
there are biobased plastics in the recycling stream they remain with 
the PET stream. Following separation, the PET is shredded and then 
placed in dryers to remove the moisture. Because biobased plastics melt 
at a temperature that is much lower than the melting temperature of 
PET, the biobased plastics tend to melt in the PET dryers. Recyclers 
have indicated that the presence of even 0.1 percent of biobased 
plastics in the shredded stream can cause the dryers to ``gum up'' and 
results in the rejection of the contaminated PET.
    APCPR pointed out that an optical-type technology for separating 
biobased plastics from PET is available, but that it is very expensive. 
Because there is currently such a small amount of biobased plastics 
available for recycling, there is no economic incentive for recyclers 
to purchase the equipment necessary to separate it from PET. APCPR 
further explained that for the recycling of biobased plastics to become 
economically viable there needs to be both a readily available supply 
of used material and a significant market for the recovered plastic, 
neither of which exists today.
    APCPR also pointed out that biobased polymers used for other 
applications, such as ``clam shell'' containers and other therma-form 
products, do not present a problem for the recycling of those products. 
They also noted that composting in commercial composting operations is 
a viable alternative to the recycling of biobased polymers. USDA 
encourages procuring agents and those involved in recycling to provide 
education material to potential purchasers and users on environmentally 
preferred disposal of such products. The APCPR Web site (https://
www.plasticsrecycling.org) presents technical information on plastics 
recycling and procuring agents are urged to visit the site for more 
information. In addition, USDA will post relevant information in this 
regard on the BioPreferred Web site to assist manufacturers, 
purchasers, and users become aware of the potential impacts of biobased 
plastics on recycling and on the preferred disposable methods for such 
products.
Purchase of Biobased Products
    Comment: One commenter urged USDA to clarify in the final rule that 
it is not requiring procuring agencies to limit their choices to 
biobased products that fall under the items for designation in this 
proposed rule in order to avoid the unintended consequence of severely 
limiting product selection and material selection options. The 
commenter pointed out that a product should be reasonably available, 
meet USDA's requirements for performance for the application intended, 
and be available at a reasonable price.
    Response: USDA agrees with the commenter that Federal agencies are 
not limited to considering biobased products when making purchasing 
decisions under the preferred procurement program for biobased 
products. Even though biobased products are given preferred 
procurement, purchasing agencies can buy other competing products when 
biobased products are not readily available, are not available at a 
reasonable cost, or do not meet Agency performance standards. USDA 
believes that this is clearly stated for the current rulemaking and 
will continue to make it clear in future rulemakings as well.

Item Specific Comments

2-Cycle Engine Oils
    Comment: One commenter stated that the definition of 2-cycle engine 
oil needed to be modified to make it clearer as to what products are 
within the item designation.
    Response: USDA appreciates the need expressed by the commenter to 
have clearly defined items to identify which products are included in 
the item. USDA has modified the definition slightly to be clearer that 
products in this item are ``designed for use in 2-cycle engines'' and 
that such products provide lubrication and/or other properties 
beneficial to 2-cycle engines.
    Comment: Two commenters stated that the list of performance 
standards shown for 2-cycle engine oils were not the applicable 
performance standards. The commenters referred to the standards set by 
four standard-setting organizations--the National Marine Manufacturers 
Association (NMMA), American Petroleum Institute (API), Japanese 
Automobile Standards Organization (JASO), and International Standards 
Organization (ISO). The commenters pointed out that the only relevant 
standard for outboard motors is the one set by the NMMA. The commenters 
felt that to continue to include 2-cycle engine oils that do not meet 
or exceed standards set by these four organizations would result in 
engine failure and a bad reputation for products within this item 
designation. The commenters, therefore, recommended that only those 2-
cycle engine oils that meet one or more of the standards set by those 
four organizations be included in the preferred procurement program.
    One of the commenters further recommended that the level of 
criteria be included so that purchasers can buy products according to 
the level of performance needed.
    Response: USDA thanks the commenters for the information concerning 
the standards being set by the four organizations identified by the 
commenters. USDA agrees that purchasers of 2-cycle engine oils need to 
be aware of these standards when purchasing any 2-cycle engine oil, 
including biobased 2-cycle engine oils. USDA believes the best way to 
provide this information is to make it available on the BioPreferred 
Web site. USDA disagrees that such standards need to be incorporated 
into the rule for these products because to do so, in part, would place 
restrictions on the manufacturers of biobased 2-cycle engine oils that 
do not exist for manufacturers of non-biobased 2-cycle engine oils. 
Although USDA believes that it would be beneficial to the manufacturer 
of any product to be able to demonstrate that their products meet or 
exceed applicable performance standards, USDA does not believe that it 
should force biobased product manufacturers, by regulation, to test 
against all applicable performance standards prior to marketing their 
products. USDA believes this is unnecessary because purchasing agencies 
should not buy biobased 2-cycle engine oils or, for that matter, 
petroleum-based 2-cycle engine oils if

[[Page 27964]]

they do not meet the agency's specifications or performance standards.
    Comment: Three commenters stated that the proposed minimum biobased 
content of 7 percent for 2-cycle engine oils was too low. One of the 
commenters recommended a minimum biobased content of 30 percent. 
According to this commenter, there are a variety of 2-cycle engine oils 
with renewable contents in the 30 to 50 percent range that meet the 
applicable performance standards and that are commercially available 
from different manufacturers.
    The second commenter recommended that the minimum biobased content 
for 2-cycle engine oils be at least 50 percent. This commenter 
expressed concerned that at this low biobased content, 2-cycle engine 
oils would not even pass the ASTM-D5864 Biodegradable Classification 
and that European Union 2-cycle engine oils are at least biodegradable.
    The third commenter suggested that, based on the data in the 
background information, USDA recommend multiple content levels 
reflecting differences in product use.
    All three commenters expressed concern that petroleum companies 
would add just enough biobased oils to their products to qualify for 
preferred procurement. One of the commenters stated that this would 
ruin biobased manufacturers in this particular market and another 
stated that this would be contrary to the objectives of the Farm 
Security and Rural Investment Act.
    Response: As discussed earlier in this preamble, USDA re-evaluated 
the proposed minimum biobased content for all of the proposed items. 
Based on the re-evaluation of the biobased content data, the minimum 
biobased content for 2-cycle engine oils has been set at 34 percent. 
The biobased content for products that have been tested are: 37, 39, 
60, 77, and 78 percent. At proposal, the minimum biobased content of 7 
percent was based on a product that was described as being formulated 
to meet specific Japanese performance standards for small engines. 
Since proposal, this product has been withdrawn by its manufacturer and 
is no longer available.
    Because there is a significant break in the data between the 39 
percent product and the 60 percent product, USDA considered the 
possibility of establishing subcategories within this item. The two 
products with 37 and 39 percent biobased content have shown that they 
meet certain small engine performance specifications and 
biodegradability standards, while such information is not available for 
the products with the higher biobased contents. At this time, however, 
USDA has not received sufficient information related to small engine 
performance specifications to justify subcategorizing this item. USDA 
will continue to collect performance information and will consider 
subcategorizing this item through future rulemakings as additional 
information is made available.
    Based on the presently available information, USDA believes that 
setting a minimum biobased content to allow procuring agencies to 
select products at this lower biobased content level is desirable. USDA 
will continue to gather additional information on the performance of 
other products within this item. If verification is obtained that 
products with significantly higher biobased contents can meet the 
performance and biodegradability standards offered by the products with 
lower biobased contents, USDA will also consider raising the minimum 
biobased content for this item in a future rulemaking. As additional 
information becomes available, USDA will also consider creating 
subcategories within this item at a later date based on features such 
as biodegradability.
    Because biodegradability can be an important attribute for 2-cycle 
engine oils used in marine environments, USDA continues to encourage 
all manufacturers of 2-cycle engine oils, and other biobased products, 
to provide as much information as possible concerning biodegradability 
and other beneficial characteristics of their products. The ASTM method 
mentioned by the one commenter (ASTM-5864) is a test method that can be 
used to determine the level of biodegradability. The availability of 
such information will assist procuring agencies in selecting biobased 
products that meet particular needs, such as biodegradability.
Lip Care Products
    Comment: One commenter pointed out that there is no standard for 
lip care balm.
    Response: USDA appreciates the commenter's review of, and comment 
on, the proposed designated item. USDA agrees with the commenter that 
no performance standards for lip balm have been identified. USDA points 
out, however, that the lack of identified performance standards is not 
relevant to the designation of an item for preferred procurement. In 
order to designate items for preferred procurement, section 9002 of 
FSRIA 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. If and when performance 
standards and other relevant measures of performance are identified for 
this item, USDA will provide such information on the BioPreferred Web 
site.
Films (Formerly Biodegradable Films)
    Comment: One commenter stated that the definition for biodegradable 
films was vague and needed clarification. The commenter assumed that, 
based on the proposed definition, the designated item includes non-
durable films intended to be used once before being discarded. The 
commenter then asked: How will the ``durable films'' item to be 
proposed at a later date be differentiated from this item? The 
commenter recommended that this item be retitled ``disposable bags, 
wrappings and liners.''
    Response: USDA agrees with the commenter that the name for this 
item should not refer to ``biodegradable'' films. USDA has renamed this 
item as ``films'' and has an included a non-durable films subcategory 
for the products that were in the ``biodegradable films'' item at 
proposal. USDA also proposed, under a separate rulemaking, designating 
an item named ``durable films'' and has now included under the new 
``films'' item a subcategory for the products that were in that 
proposed item. USDA has revised the definitions in the final rule for 
the ``semi-durable films'' subcategory to make it clearer as to the 
types of products it covers as opposed to those films that would be 
covered by the ``non-durable films'' subcategory. For example, USDA has 
revised the definition to clearly state that non-durable films are 
intended for single use before being discarded, as suggested by the 
commenter.
    Comment: One commenter recommended that, based on the data in the 
background information, the minimum biobased content for this item be 
set based on the products with tested biobased contents of either 52 or 
62 percent, rather than on the product with a tested biobased content 
of 25 percent, which resulted in the proposed minimum biobased content 
of 22 percent. The commenter then stated that USDA should obtain 
information to justify the claim made in the preamble that Federal 
agencies need products with a longer shelf-life, thereby supporting the 
22 percent content recommendation.
    Response: As discussed above, USDA has established two 
subcategories for this item, one for semi-durable films and one for 
non-durable films. For the semi-durable films subcategory, USDA has 
biobased content data for 11 products (25, 48, 49, 52, 62, 62, 62, 62,

[[Page 27965]]

62, 62, and 64 percent biobased). Because there is a significant break 
in the data between the 25 percent product and the 48 percent product, 
USDA investigated the product information available for the 25 percent 
product to determine if it offered characteristics not offered by the 
other products. USDA found that there were no performance claims for 
this product that distinguished it from the products with a higher 
biobased content. The biobased content for the remaining products were 
within a narrow range and no performance or applicability information 
was available to further divide the products within the subcategory. 
Therefore, the minimum biobased content has been set at 45 percent for 
this subcategory, based on the product with the tested biobased content 
of 48 percent.
    For the non-durable films subcategory, the tested biobased contents 
are: 88, 89, 90, 94, and 96 percent. The data points are within a 
narrow range and no information was available to further divide the 
products within the subcategory. USDA is, therefore setting the minimum 
biobased content for non-durable films at 85 percent, based on the 
product with a biobased content of 88 percent.
Stationary Equipment Hydraulic Fluids
    Comment: One commenter requested that USDA designate as a 
subcategory hydraulic oil used in mobile equipment for preferred 
procurement.
    Response: USDA has already designated mobile hydraulic fluids under 
the first group of products designated for preferred procurement. The 
commenter is referred to the March 16, 2006, Federal Register notice 
(71 FR 13686). To help avoid such confusion, USDA will try in future 
proposals to group similar items together within a rulemaking.
    Comment: Two commenters stated that the definition of stationary 
equipment hydraulic fluids was somewhat unclear and needed to be 
modified. One of the commenters suggested the following definition: 
Fluids used in stationary hydraulic equipment systems that have various 
mechanical parts, such as cylinders, pumps, valves, pistons, and gears, 
that are used for the transmission of power (and also for lubrication 
and/or wear, rust, or oxidation protection).
    Response: USDA appreciates the commenters' suggested revisions to 
the proposed definition of this designated item and has incorporated 
the suggestions into the definition in the final rule.
    Comment: Two commenters addressed the proposed minimum biobased 
content for stationary equipment hydraulic fluids. One commenter agreed 
with the proposed minimum biobased content of 46 percent. The other 
commenter felt that, based on the data in the background information, 
the proposed content was too low and should be based on the product 
with a tested biobased content of 64 percent. This commenter also 
stated that, if the lower content levels reflect products used for 
different applications than those with higher content levels, then USDA 
should provide separate content recommendations.
    Response: The 48 biobased content data points in this data set 
range from 47 percent to 100 percent. USDA's re-evaluation of the 
biobased content data for this item did not identify any significant 
breaks in the range nor was there data available to support 
subcategorization. Because of the very wide range of applications in 
which these products are used, USDA was unable to identify discreet 
subcategories without significant overlaps in the biobased contents 
among the subcategories. USDA is setting the minimum biobased content 
for this item at 44 percent, based on the product with a tested 
biobased content of 47 percent, because the products at this end of the 
range are believed to offer performance characteristics, such as the 
ability to be used in low temperature applications, not offered by some 
of the products with a higher biobased content. USDA will continue to 
gather additional information for this item and will consider creating 
subcategories based on product performance and/or applicability if 
sufficient supporting documentation can be obtained.
    Comment: One commenter stated that, as a practical matter, the 
overlap with biobased hydraulic fluids and EPA-designated recovered 
content lubricating oils is likely to be limited because most re-
refined oil is being used for motor/engine oil, not hydraulic fluids. 
The commenter stated that DLA's re-refined oil program is focused on 
motor/engine oil and not hydraulic fluids and that a check of the DLA 
Web site does not indicate any standards for, or purchase contract for, 
re-refined hydraulic fluid. Further, according to the commenter, most 
of the re-refined oil vendors listed in EPA's CPG supplier database are 
selling re-refined motor/engine oil, with only one or two companies on 
the list appearing to sell re-refined hydraulic fluids. The commenter 
believes that market factors are directing the current supply of re-
refined base oil stock into the engine oil segment, which probably 
makes sense given the size of that market.
    Based on these factors, the commenter believes that it is entirely 
possible that Federal buyers may have a difficult time finding and, 
with very limited choices, buying re-refined hydraulic fluids. The 
commenter believes that buyers wanting to replace petroleum-based 
hydraulic fluid products may find biobased hydraulic fluids more 
available in the marketplace than re-refined hydraulics. The commenter 
noted that, in situations where there are concerns for spills, readily 
biodegradable biobased hydraulic oil would be a better choice based on 
performance.
    Finally, the commenter stated that if more re-refined base stock 
oil becomes available in the market place, it is possible that 
manufacturers of hydraulic fluids could use a combination of vegetable 
oils and re-refined oil base stock to meet both biobased content and 
CPG Guidelines.
    Response: USDA believes that the commenter makes some very good and 
valid observations concerning the potential for, or lack of, overlap 
between biobased hydraulic fluids for stationary equipment and EPA-
designated recovered content re-refined lubricating oil. However, USDA 
continues to believe there is a potential for overlap and that to 
identify such potential is still worthwhile. Furthermore, USDA 
appreciates the point raised by the commenter concerning the potential 
preference to be shown to biobased hydraulic fluids over EPA-designated 
recovered content products where biodegradability may be an issue in 
the use of the fluid. In such instances, the biobased fluid may be able 
to meet the need to be biodegradable while the non-biobased fluid 
cannot.
Disposable Cutlery (Formerly Biodegradable Cutlery)
    Comment: One commenter asked why this biobased item was also 
``biodegradable.'' Another commenter pointed out that the other 
``biodegradable'' items referenced ASTM D6400 in their definitions and 
asked whether cutlery should also reference ASTM D6400 instead of ASTM 
D5338.
    Response: The products covered by this item were intended to be 
disposable cutlery, with preferred procurement to be given to biobased 
disposable cutlery. Further, it was USDA's intent that preferred 
procurement is given to biobased disposable cutlery that is also 
biodegradable. As discussed earlier in this preamble, where 
disposability considerations are equally important as

[[Page 27966]]

performance characteristics, USDA plans on requiring biodegradability 
for products within the designated item if there are established 
biodegradability standards. Some of the manufacturers of products 
within this item claim biodegradability as a feature of their products. 
However, USDA has not been successful in obtaining sufficient evidence 
that these products provide acceptable levels of performance. Thus, 
USDA does not believe that, at this time, biodegradability should be a 
requirement that products in this item must meet to qualify for 
preferred procurement. However, USDA will continue to investigate the 
performance of biodegradable disposable cutlery and, if sufficient 
evidence of acceptable performance is obtained, USDA will amend the 
designation of disposable cutlery to add biodegradability as a 
requirement for this item. USDA also continues to urge procuring 
agencies to consider biodegradability as a desirable feature of 
products within this item and to purchase biodegradable biobased 
disposable cutlery to the extent that these products meet their 
performance needs.
    USDA agrees with the commenter that ASTM D6400 should be the 
primary test method for demonstrating the biodegradability of biobased 
cutlery. However, there may be other biobased formulations for which 
ASTM D6400 would not be the appropriate test method for demonstrating 
biodegradability. For example, if the cutlery is to be disposed of in a 
marine environment, the appropriate test method would be ASTM D7081. 
Thus, while biodegradability is not a requirement for products within 
this item, manufacturers wishing to demonstrate biodegradability are 
encouraged to use the most appropriate ASTM test methods.
    Lastly, USDA notes that disposable cutlery needs to be composted 
rather than landfilled in order for the cutlery to biodegrade and that 
they need to be composted in commercial composting facilities in order 
to be exposed to the proper temperature and moisture requirements for 
composting. Composting these products in a ``backyard'' compost pile 
will not necessarily result in the complete biodegradation of the 
product.
    Comment: One commenter stated that the information provided in the 
Performance Standards document does not indicate whether biodegradable 
cutlery will perform when used for eating. A second commenter noted 
that biobased cutlery, if purchased, may not initially replace the 
combat-tested utensil, heavy duty, long handled spoon in the Meal, 
Ready-To-Eat without extensive DoD review, testing, field test and 
approval from U.S. Army Natick, ACES, Surgeon General and the Military 
Services. The second commenter also noted that applying the procurement 
preference rule to this combat-related product would not result in the 
multiplied effect across the economy that they would expect in the 
cutlery similar to that used in restaurants across the nation.
    Response: USDA agrees with the points made by the commenters. USDA 
was unable to identify any performance standards relevant to disposable 
cutlery and encourages the development of such to assist in the 
evaluation of such products. Without such standards as a guide, the 
performance of biobased cutlery may be unknown in any one situation. 
USDA does know through real-world experience that the performance of 
biobased cutlery will vary depending on its formulation and on the 
particular environment in which it is used.
    With regard to the second commenter, USDA notes that, for the 
reasons provided earlier in this preamble, the final rule does not 
require preferred procurement for disposable cutlery purchased for use 
in combat or combat-related missions. If and when biobased cutlery is 
demonstrated to meet all of the performance requirements of DoD in 
tactical situations, USDA reserves the right to withdraw such 
exemptions for disposable cutlery. Should that situation occur, USDA 
appreciates the fact that purchase of biobased cutlery may be more 
limited for combat-related purchases than for general restaurant 
purchases, but the statute for this program is aimed at Federal agency 
purchases and not for private enterprise purchases.
    Comment: Two commenters recommended that USDA set the minimum 
biobased content near 100 percent given the availability of products in 
this item containing 100 percent biobased content. One of the 
commenters stated that 33 percent is too low. A third commenter 
expressed concern with the direction of the biobased content for 
cutlery based on their experience. The commenter stated that they are 
likely to start procuring 50 percent biobased cutlery even though a 
superior 100 percent biobased utensil already exists. This commenter 
asked ``What are practical ways the Federal Government can find and 
place incentives in its policies for contractors to develop biobased 
products with the greatest degree (high percent) of biobased content, 
and measure its success in this regard?''
    Response: USDA appreciat