Designation of Biobased Items for Federal Procurement, 27978-27995 [E8-10116]

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 27978-27995]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10116]



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Part V





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-AA32


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 eight 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 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 October 11, 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 59862. This 
rulemaking is referred to in this preamble as Round 4 (RIN 0503-AA32).
    The Round 4 proposed rule proposed designating the following ten 
items, including their subcategories, for the preferred procurement 
program: Bathroom and spa cleaners; \1\ clothing products; \2\ concrete 
and asphalt release fluids; general purpose de-icers; \3\ durable 
plastic films; \4\ firearm lubricants; floor strippers; laundry 
products, including pretreatment/spot removers and general purpose 
laundry products as subcategories; metalworking fluids--straight oils; 
\5\ and wood and concrete sealers.
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    \1\ At proposal this item was named ``bath and tile cleaners.'' 
Based on public comments received, and as explained in section IV of 
this preamble, USDA has renamed this item as ``bathroom and spa 
cleaners.''
    \2\ Based on public comments received, and as explained in 
section IV of this preamble, this proposed item has been withdrawn 
from the final rule.
    \3\ At proposal this item was named ``de-icers.'' Based on 
public comments received, and as explained in this preamble, USDA 
has renamed this item as ``general purpose de-icers.''
    \4\ Based on public comments received, and as explained in 
section IV of this preamble, this proposed item is now a subcategory 
under the designated item ``films,'' which is included in the Round 
3 final rulemaking.
    \5\ At proposal this item was named ``cutting, drilling, and 
tapping oils.'' Based on public comments received, and as explained 
in section IV of this preamble, USDA has renamed this item as 
``metalworking fluids'' and has included three subcategories.
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    Today's final rule designates the following eight items, including 
subcategories, within which biobased products will be afforded Federal 
procurement preference: Bathroom and spa cleaners; concrete and asphalt 
release fluids; general purpose de-icers; firearm lubricants; floor 
strippers; laundry products, including pretreatment/spot removers and 
general purpose laundry products as subcategories; metalworking fluids, 
including straight oils, general purpose soluble, semi-synthetic, and 
synthetic oils, and high performance soluble, semi-synthetic, and 
synthetic oils as subcategories; and wood and concrete sealers, 
including penetrating liquid sealers and membrane concrete sealers 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

[[Page 27979]]

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. 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--laundry products, metalworking fluids, and wood and 
concrete sealers. For laundry products, the subcategories are: (1) 
Pretreatment/spot removers and (2) general purpose laundry products. 
For metalworking fluids, the subcategories are: (1) Straight oils, (2) 
general purpose soluble, semi-synthetic, and synthetic oils, and (3) 
high performance soluble, semi-synthetic, and synthetic oils. For wood 
and concrete sealers, the subcategories are: (1) Penetrating liquid 
sealers and (2) membrane concrete sealers.
    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 eight 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.
    Preference compliance date. Because USDA has identified only one 
manufacturer of products within the high performance soluble, semi-
synthetic, and synthetic oils subcategory, the preference compliance 
date is deferred until USDA identifies two or more manufacturers of 
products in this subcategory. When it identifies two or more 
manufacturers, USDA will publish a document in the Federal Register 
announcing that Federal agencies will have one year from the date of 
publication of that announcement to give procurement preference to 
biobased metalworking fluids in the high performance soluble, semi-
synthetic, and synthetic oils subcategory.
    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.
    Exemptions. In earlier item designation rules, USDA created 
exemptions from the preferred procurement program's requirements for 
procurements involving combat or combat-related missions and for 
spacecraft systems and launch support equipment. Since publication of 
those final rules in the Federal Register, and in response to comments 
from the Department of Defense (DoD) (see General Comments, below), 
USDA has decided to create ``blanket'' exemptions for all items used in 
products or systems designed or procured for combat or combat-related 
missions, which will apply to all items designated for the procurement 
preference. These ``blanket'' exemptions can be found in subpart A of 
part 2902. Because these blanket exemptions are included in subpart A 
of part 2902, it is unnecessary to repeat them in the individual item 
designations. Accordingly, in order to avoid repetition, this final 
rule removes all the exemption references contained in individual item 
designations.

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 withdrawn. The proposed ``clothing products'' item has been 
withdrawn from the group of items being designated for preferred 
procurement in today's final rulemaking. USDA has determined that 
sufficient data are not available to support the designation of this 
item at this time. At proposal, USDA had information on clothing 
products made of polylactic acid (PLA), one type of

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biobased synthetic fiber. USDA is also aware that other types of 
biobased synthetic fibers could be used for clothing products but does 
not have sufficient information to include these products in the 
evaluation of this item. Because there is potentially a wide variation 
in the biobased contents, performance, and life cycle costs between 
clothing products made of PLA and those made of other biobased 
synthetic fibers, USDA believes that the designation of this item 
should be delayed until additional products can be obtained and 
analyzed.
    Item names. The names for four of the proposed items were revised. 
``Bath and tile cleaners'' is now ``bathroom and spa cleaners.'' ``De-
icers'' is now ``general purpose de-icers.'' ``Durable plastic films'' 
was renamed ``durable films'' and is now a subcategory under the 
designated item ``films,'' which is included in the Round 3 final 
rulemaking. ``Cutting, drilling and tapping oils'' was renamed 
``metalworking fluids--straight oils'' and is now a subcategory under 
the designated item ``metalworking fluids'' in today's final 
rulemaking.
    Item definitions. Except for ``concrete and asphalt release 
fluids'' and ``floor strippers,'' the definitions for the other items 
were modified to varying degrees. The definitions for metalworking 
fluids and wood and concrete sealers were modified in order to address 
the addition of subcategories (as discussed in the following 
paragraph).
    Subcategories. In addition to finalizing the proposed subcategories 
under the ``laundry products'' item, subcategories were created for two 
items. Metalworking fluids was subcategorized into (1) straight oils, 
(2) general purpose soluble, semi-synthetic, and synthetic oils and (3) 
high performance soluble, semi-synthetic, and synthetic oils. Wood and 
concrete sealers was subcategorized into (1) penetrating liquid sealers 
and (2) membrane concrete sealers.
    Minimum biobased contents. 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 general purpose de-icers, the minimum biobased content was 
changed from 97 percent to 93 percent.
    For floor strippers, the minimum biobased content was changed from 
79 percent to 78 percent.
    For laundry products, the minimum biobased content of the 
pretreatment/spot removers subcategory was changed from 8 percent to 46 
percent.
    For metalworking fluids, the minimum biobased content for the high 
performance soluble, semi-synthetic, and synthetic oils subcategory was 
set at 40 percent and the minimum biobased content for the general 
purpose soluble, semi-synthetic, and synthetic oils subcategory was set 
at 57 percent. For the straight oils subcategory, the minimum biobased 
content was set at 66 percent.
    For wood and concrete sealers, the proposed minimum biobased 
content of 79 percent was retained for the penetrating liquid sealers 
subcategory and the minimum biobased content for the membrane concrete 
sealers subcategory was set at 11 percent.
    Preference compliance date. For the high performance soluble, semi-
synthetic, and synthetic metalworking fluids subcategory, the 
preference compliance date is deferred until USDA identifies two or 
more manufacturers in the subcategory. When it identifies two or more 
manufacturers, USDA will publish a document in the Federal Register 
announcing that Federal agencies will have one year from the date of 
publication of that announcement to give procurement preference to 
biobased high performance soluble, semi-synthetic, and synthetic 
metalworking fluids.

IV. Discussion of Comments

    USDA solicited comments on the proposed rule for 60 days ending on 
December 11, 2006. USDA received comments from 11 commenters by that 
date. The comments were from individual manufacturers, trade 
organizations, and Federal agencies.
    The comments contained in this Federal Register notice address 
general comments related to the preferred procurement program under the 
BioPreferred Program and specific comments related to Round 4 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 4 
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 4 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 A), and (3) a tabular and graphical presentation of the 
BEES environmental performance scores for each item (Appendix B). This 
information is being presented in the technical support document as the 
result of general comments received on the proposed rules for Rounds 2 
and 3. The technical support document for Round 4 includes additional 
information as identified in the remainder of this preamble.

General Comments

    Several of the commenters expressed appreciation for USDA's effort 
in designating items for preferred procurement. While these comments 
are not presented within this preamble, USDA thanks the commenters for 
such comments.
Minimum Biobased Content
    Comment: Several commenters have expressed concern 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

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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 three items, USDA reviewed the biobased content data 
but did not find sufficient justification for revising the proposed 
minimum biobased content level. For bathroom and spa cleaners item, 8 
biobased content test results were available (16, 77, 78, 82, 83, 98, 
99, and 100 percent). With the exception of the 16 percent product, 
this is a fairly narrow range of data points with a noticeable break 
between the 83 percent and the 98 percent products. USDA investigated 
the 16 percent product but could find no basis for creating a 
subcategory or for considering setting the minimum biobased content 
based on this product. At proposal, USDA found that the products with 
77 and 83 percent biobased content met Green Chemical Specifications 
that the remaining products do not claim to meet. In order to include 
these products in the preferred procurement program, USDA proposed 
setting the minimum biobased content at 74 percent, based on the 
product with a biobased content of 77 percent. No public comments or 
additional data were received to support changing the proposed level. 
As a result, the proposed minimum biobased content of 74 percent was 
retained for the final rule.
    For the concrete and asphalt release fluids item, USDA reviewed the 
biobased content data (90, 91, 92, 93, 94, 94, 96, 96, and 98 percent) 
and found that because the range of the data points is so narrow and 
does not include any breaks, there is no justification for revising the 
proposed 87 percent minimum biobased content.
    For the firearm lubricants item, USDA proposed a minimum biobased 
content of 49 percent. Three biobased content data points (52, 53, 95) 
are available. USDA considered subcategorizing this item into two 
subcategories (general purpose and cold weather) but decided that not 
enough data were available to justify the subcategorization. The 
manufacturer of one of the three products claims that the product is 
formulated for use in cold weather applications, but the other products 
are also described as unique performance products. Because of the 
uncertainty regarding product performance claims, USDA has decided to 
set the minimum biobased content of the item at 49 percent, as 
proposed, and to continue to gather information that will be used in 
considering subcategorization in a future rulemaking.
Terminology
    Comment: One commenter stated that the biobased products 
procurement program, as proposed, may create a confusing picture of 
what the program is intended to cover because the terms ``biobased,'' 
``biodegradable,'' and ``compostable'' are used at times 
interchangeably. The commenter asked whether Federal purchasing agents 
understand the term ``biobased'' and that a biobased product is not 
necessarily biodegradable. The commenter pointed out that 
compostability most often only occurs when a product that is designed 
to be compostable is properly managed in a composting facility. 
According to the commenter, there are very limited numbers of 
commercial composting facilities in the U.S. The commenter also asked 
why some of the biobased items are designated as ``biodegradable'' and 
others are not.
    Response: USDA agrees that there can be confusion with regard to 
the three terms mentioned by the commenter. A ``biobased'' product is a 
product that is composed, in whole or in significant part, of 
biological products or renewable domestic agricultural materials or 
forestry materials. A biobased product may or may not be biodegradable 
and/or compostable. In simple terms, ``biodegradable'' generally means 
a product is capable of decomposing into simple compounds under natural 
conditions (either aerobic or anaerobic) by microorganisms. 
``Compostable'' generally means a product is capable of biological 
decomposition under controlled aerobic conditions, such as found in a 
compost pile or compost bin, by microorganisms or soil invertebrates. 
Therefore, all biodegradable products would be compostable, but not all 
compostable products are biodegradable.
    As discussed earlier in this preamble, USDA believes that the 
relationship between performance and biodegradability of an item must 
be considered before biodegradability is included as a prerequisite for 
a designated item to receive preferred

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procurement under the BioPreferred Program. In the case of items where 
USDA judges performance to be the key decision-making factor for 
purchasers, USDA will not require biodegradability as a prerequisite 
for receiving preferred procurement. In the case of items where USDA 
judges disposal to be as important as performance, USDA will require 
biodegradability as a prerequisite for receiving preferred procurement. 
This is why some items will be required to be biodegradable and others 
will not in order to receive preferred procurement under the 
BioPreferred Program. Although USDA is not requiring products in any of 
the items and subcategories being designated in today's rulemaking to 
be biodegradable, USDA intends to promote biobased products that are 
also biodegradable as part of the BioPreferred Program.
Prequalification of Biobased Materials
    Comment: Two commenters recommended that USDA develop a program for 
prequalifying the biobased material that will form the basis of 
biobased products. The commenters point out that biobased products are 
made from biobased materials. According to the commenters, testing and 
qualifying biobased materials will greatly accelerate the designation 
process for preferred procurement--if a product is made from a 
prequalified biobased material, it is then a simple matter for the 
manufacturer of the bioproduct to provide information to USDA on its 
biobased composition and, if verification of manufacturer supplied 
compositional information is needed, the ASTM biobased content test can 
always be conducted as needed. The commenters also suggested making 
prequalified biobased materials part of the ``U.S.D.A. Certified'' 
labeling program. When part of the labeling program, manufacturers 
would be able, according to the commenter, to contact biomaterial 
suppliers for information on the performance and other characteristics 
to determine the most appropriate biomaterials for their particular 
application. According to the commenters, this would expedite the 
development of biobased products consistent with the Congressional 
intent of FSRIA.
    Response: USDA agrees that there is merit in the concept of 
prequalifying biobased materials that are used to manufacture biobased 
products for preferred procurement. However, as noted in a response to 
public comments on the first six items designated for preferred 
procurement (71 FR 13702), section 9002 of FSRIA requires USDA to 
designate ``products'' for preferred procurement. Section 9001 of FSRIA 
defines ``biobased products'' as ``a product determined by the 
Secretary to be a commercial or industrial product (other than food or 
feed) that is composed, in whole or in significant part, of biological 
products or renewable domestic agricultural materials or forestry 
materials.'' Based on this definition, USDA does not believe it has the 
authority to consider ``biobased material used in the manufacture of 
biobased products'' to be ``products.'' USDA is, however, gathering 
information on biobased intermediate feedstocks and developing a list 
of these materials. USDA will provide this information on the 
BioPreferred Web site. USDA also notes that NIST currently includes 
soybeans, corn, wheat, rice, cotton, canola, potatoes, and wool as 
feedstocks when conducting the BEES life cycle analysis for biobased 
products.
    USDA has considered the commenter's recommendation to make 
prequalified biobased materials part of the ``U.S.D.A. Certified'' 
labeling program in developing the proposed rule for that program.
Overlap With EPA's Comprehensive Procurement Guideline (CPG)
    Comment: Two commenters recommended that USDA's Guidelines 
Designating Biobased Products for Federal Procurement be upgraded to 
include the proposal in this rulemaking for handling the ``overlap'' 
between the recycled content and biobased content programs.
    Response: While USDA appreciates the commenters' suggestion on 
revising the Guidelines to reflect the overlap potential between 
biobased products and products with recycled content, USDA will 
continue to discuss such overlap within each of the designated item 
rulemakings on an item-by-item basis. USDA believes that the discussion 
on overlap is more meaningful when presented in individual notices for 
designated items where such overlap exists or may exist.
Environmental and Health Information
    Comment: Two commenters recommended that USDA continue to emphasize 
the potential of biobased products to reduce greenhouse gas emissions 
as part of the preferred procurement program.
    Response: USDA agrees with the commenters that the potential for 
biobased products to reduce greenhouse gas emissions is an important 
attribute of which purchasers and others need to be aware. USDA will 
continue to identify this potential in preambles and in the background 
information on the BioPreferred Web site. USDA encourages the 
commenters, and others, to provide USDA with ``cradle-to-grave'' 
studies that demonstrate this potential attribute. USDA would then 
consider putting such results on the BioPreferred Web site.
Purchase of Biobased Products by Federal Agencies
    Comment: One commenter recommended that information on the 
following products be provided in the final rule for the benefit of 
Federal agency purchasers implementing both this round of biobased 
products and earlier biobased product designations: BioRenewables Glass 
Cleaner, NSN 7930-00-NIB-0331 (2 liter) and 7930-00-NIB-0330 (gallon); 
BioRenewables Restroom Cleaner, NSN 7930-00-NIB-0437; BioRenewables 
Graffiti Remover SAC, NSN 7930-00-NIB-0433 (quart) and 7930-00-NIB-0434 
(gallon); BioRenewables Waterless Hand Cleaner, NSN 8520-00-NIB-0093; 
BioRenewables Waterless Plus Hand Cleaner, NSN 8520-00-NIB-0094; 
TriBase Multi Purpose Cleaner, NSN 7930-00-NIB-0329; Lite'n Foamy 
Sunflower Fresh foaming hand, hair, and body wash.
    Response: USDA will include these products, offered through the 
National Industries for the Blind, in the product information provided 
on the BioPreferred Web site. Also note that the National Stock Numbers 
(NSN) provided by the commenter have changed since the comment was 
submitted. The revised NSN for the products are as follows: 
BioRenewables Glass Cleaner, NSN 7930-01-555-2898 (32 oz) and 7930-01-
555-3384 (gallon); BioRenewables Restroom Cleaner, NSN 7930-01-555-2900 
(32 oz); BioRenewables Graffiti Remover SAC, NSN 7930-01-555-3382 (32 
oz) and 7930-01-555-2899 (gallon); TriBase Multi Purpose Cleaner, NSN 
7930-01-555-2901 (gallon); Lite'n Foamy Sunflower Fresh foaming hand, 
hair, and body wash, NSN 8520-01-555-2903.
    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

[[Page 27983]]

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 BioPreferred 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.
Information Accuracy
    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.
Publicly Available Information
    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.
Recycling
    Comment: Several commenters were concerned about the effect of 
biobased products on existing recycling operations.
    One commenter requested that USDA evaluate and address the effect 
that biobased polymers used for durable films 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.
    Another commenter voiced concern over the introduction of biobased 
plastics, such as PLA, into the recycling stream because such products 
cannot be mixed with conventional plastics, such as PET, because the 
materials are not compatible for recycling processes. The commenter 
noted that PLA itself can be recycled, but that the recycling industry 
infrastructure is not currently configured to implement segregation 
collection and recycling of PLA plastics and there are no well-
established manufacture buy-back type programs to incentivize and 
facilitate local or regional composting and recycling to turn PLA back 
into PLA.
    The third commenter noted that the impacts of interest for the 
presence of biopolymers are on (1) the reclamation process and (2) on 
the appearance and functionality of the recycled PET and HDPE plastic 
products. The commenter then provided technical detail on the 
characteristics of biobased polymers and PET and HDPE to illustrate the 
reasons why such recycling incompatibility exists. This commenter then 
made the following conclusions: (1) Biopolymers are unlikely to justify 
an independent recycling business any time soon; (2) Biopolymers could 
be a technical nuisance to HDPE reclaimers, creating a yield loss with 
some economic cost; (3) Biopolymers could be a technical problem for 
PET reclaimers, creating degraded PET product quality and serious 
economic cost; (4) Biopolymers may be an opportunity for current 
reclaimers if the value exceeds costs and the presence does not disrupt 
current operations. Until critical mass is achieved, biopolymers will 
likely represent some level of cost and technical challenges to 
reclaimers and must pay their own way in collection, sorting, and 
processing. The third commenter stated that biopolymers should target 
product applications not currently included for recycling. Some 
biopolymers are targeted for packaging applications that are not 
typically recycled, such as food storage containers, bowls, and blister 
packaging.

[[Page 27984]]

These packages may become included with bales of bottles destined for 
recycling. Some parties have advocated the use of biopolymers for 
packaging applications such as juice and other beverage containers that 
are frequently recycled. As such, the impact of the USDA program on 
existing recycling streams and programs needs to be considered.
    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 (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.
    Comment: One commenter stated that to be successfully recycled a 
significant critical mass must be reached and that many resins, 
including various biopolymers, are not and are not likely soon to be 
present in sufficient quantities to justify free-standing recycling. 
The commenter believes that each resin must be self-supporting and not 
rely on subsidy from other resins for successful recycling. According 
to the commenter, although PVC is normally removed from the PET recycle 
stream as a matter of course, considerable development would be needed 
to make this possibility a working reality for other polymer bottles. 
If the ``other'' polymer, be it a biopolymer or petroleum-derived 
polymer, is not removed, then the impacts of potential contamination 
must be considered. Like many variants in the recycling stream, the 
effects of inclusion of ``other'' resins starts as a nuisance, rises to 
a problem with higher levels of occurrence, and finally becomes an 
opportunity when critical mass is achieved.
    Response: As discussed in the response to the previous comment, 
USDA recognizes the challenges presented to the plastic resin recycling 
industry by the increased use of biopolymers. USDA will post relevant 
information on the BioPreferred Web site to assist manufacturers, 
purchasers, and users become aware of the potential impacts and the 
preferred disposable methods for biopolymer-based products.
    Comment: One commenter made several recommendations on how USDA 
should address recycling in the purchase of biobased packaging 
materials.
    First, the commenter recommended that USDA stress that it is not 
requiring procuring agencies to limit their choices to biopolymer-based 
packaging that is incompatible with current reclamation. The commenter 
believes that to do so is consistent with other guidance USDA provides 
with regard to other ``green'' programs.
    Second, the commenter also recommended that, beyond the life cycle 
of the product itself, USDA ask agencies to consider the impact of the 
introduction of a new or non-traditional polymer for a specific 
application on existing recycling streams. The commenter believes that 
containers being recycled are as valuable to sustainability as 
containers being made of renewable material.
    Third, for the reason stated above, the commenter further asked 
that USDA establish sustainable solid waste management (i.e., 
recycling) as one of the product performance standards for procuring 
agencies to request information on and consider. The commenter 
considers that the definition of sustainable solid waste management 
must include the economic ability of items to be processed for 
recycling and sold profitably. Similarly, an item that meets 
sustainable solid waste management criteria must not significantly 
degrade the ongoing, successful recycling of other items. In closing, 
the commenter stated that packaging material should be selected if it 
meets the functional and aesthetic requirements for the intended 
application, is commercially available and competitively priced, and 
does not disrupt existing, sustainable solid waste management programs.
    Response: While USDA is concerned with all aspects of the 
BioPreferred Program, its statutory authority does not extend to 
include regulating the disposal, recovery, or recycling of biobased 
products. USDA encourages Federal procuring agencies to consider the 
impact that proper disposal of biobased products may have when they

[[Page 27985]]

are making decisions on the purchase of such products. As discussed in 
the previous responses, USDA will attempt to provide information on the 
disposal of biobased products to procuring agencies via its 
BioPreferred Web site.
Exemptions
    Comment: One commenter requested that the rule reflect exemptions 
for all items used in products and systems designed or procured for 
combat or combat-related missions and that this exemption be extended 
to all services and products contracted for combat or combat-related 
missions. The commenter pointed out that USDA has stated that it is 
inappropriate to apply the preferred procurement requirement unless 
Department of Defense (DoD) has documented that such products can meet 
the performance requirements for such equipment and are available in 
sufficient supply to meet domestic and overseas deployment needs. 
According to the commenter, their experiences to date have reinforced 
that it is not practical at this time to conduct the testing and 
evaluation necessary for such performance documentation for all 
products used in combat. The commenter therefore recommended that the 
rule continue to reflect or include exemptions for all items used in 
products and systems designed or procured for combat or combat-related 
missions in sections 2902.37, 2902.39, 2902.40, and 2902.42. Sections 
2902.36, 2902.38, 2902.41, 2902.43, 2902.44, and 2902.45 may at some 
future time be found to require a combat exemption for a specialized 
use we have not been able to determine at this time. The commenter 
suggested that the goals of the biobased preference program are better 
served if the focus in DoD is on product used for more conventional 
purposes (similar to commercially available items), rather than 
extending the requirements to combat uses. The commenter stated that 
DoD is being very proactive in encouraging the use of bio-based 
products through both policy and research and development investments 
related to combat uses, however DoD is not in a position to support 
USDA selection of materials at this time.
    Response: USDA has discussed, at length, with DoD the need for 
exempting from preferred procurement items whose products are used in 
combat or combat-related situations. This discussion has included 
whether there is a need for an exemption and, if so, whether an 
exemption should be on an item-by-item basis or whether a ``blanket'' 
exemption should be implemented. After such discussions, USDA is 
exempting from preferred procurement all items used in products or 
systems designed or procured for combat or combat-related missions. The 
exemption is stated in the Guidelines (subpart A) rather than under 
each item designation. USDA believes it is inappropriate to apply the 
biobased purchasing requirement to tactical equipment at this time. 
However, USDA reserves the right to withdraw such exemptions, on an 
item-by-item basis, as biobased products are demonstrated to meet all 
of the performance requirements of DoD in tactical situations.
    Comment: Two commenters stated that the proposed exemptions for 
critical applications are unnecessary given the provisions of the 
Guidelines, noting that no product, biobased or not, should be used in 
any critical application if it does not meet performance requirements. 
The commenter is concerned that proposing an exemption that limits the 
use of biobased products to ``more conventional applications'' implies 
that biobased products are inferior in their performance 
characteristics to the incumbent product. According to the commenter, 
not only is this not the case, but it sends the wrong message regarding 
the potential benefits of and uses for biobased products. The 
commenters note that they are aware of applications in the clothing 
(military uniforms and other clothing) and de-icers (airport runways) 
where the introduction of a biobased ingredient into these products 
could result in not only equal performance but potentially enhanced 
performance. The commenters state that performance testing is currently 
in progress to support the intended uses for these products. 
Recognizing that the biobased products industry is in its infancy, the 
commenters believe that proposing exemptions for critical performance 
applications because there is a current lack of performance testing 
data to support some of these applications is both unnecessary, as 
discussed above, and counter to the intent of the Farm Bill of using 
federal procurement to pull biobased products into the marketplace.
    Response: USDA agrees with the commenters that providing exemptions 
could imply that biobased products are inferior to non-biobased 
products. USDA can only emphasize that these exemptions are not 
intended to convey such meaning. USDA points out, however, that the 
statute does allow agencies the ability to not purchase a biobased 
product if it does not meet applicable performance standards. Because 
so many biobased products are in their infancy, more effort is required 
on the part of their manufacturers to demonstrate that the biobased 
products perform as well as their non-biobased counterparts, whether in 
conventional or non-conventional applications.
    USDA also agrees that all Federal agencies have the same ``off 
ramps'' available to them in determining whether or not to purchase 
biobased products within a designated item. USDA has received repeated 
requests from both DoD and NASA for exemptions. DoD is particularly 
concerned about the use of biobased products in combat or combat-
related situations and NASA about the use of any biobased product in 
critical mission areas. USDA has reached agreement with these agencies 
to provide ``blanket'' exemptions for both NASA and DoD.
    USDA recognizes that such blanket exemptions could discourage 
manufacturers from developing biobased products for these two 
``markets.'' However, if manufacturers of biobased products can 
demonstrate to the satisfaction of these two agencies that biobased 
products can meet all of their concerns, USDA would reconsider such 
exemptions on an item-by-item basis.
Biobased Content Testing
    Comment: One commenter recommended that the ASTM active standard 
06866-06 (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.
Incidental Funding
    Comment: One commenter noted that under a separate rulemaking USDA 
clarified that the procurement guidelines do not apply to purchases of 
designated items that are unrelated to or incidental to Federal 
funding. The commenter stated that ``incidental to federal funding'' 
should be defined or clarified. According to the commenter, because the 
Energy Policy Act of 2005 extended the biobased procurement preference 
program applicability to contractors of the federal government, the 
question of what constitutes an

[[Page 27986]]

incidental purchase becomes important and could benefit from additional 
clarification, either through regulations or guidance, to ensure 
federal agencies take a consistent approach. This area seems inherently 
open to a range of interpretation. For example, one could logically 
conclude that in a contract that requires submission of a report in 
paper format, the paper and the recycled material content of the paper 
would be incidental to the purpose of the contract (i.e., the reporting 
effort). However, the Federal Acquisition Regulations (FAR) actually 
contains a specific contract clause, 52.204-4, to ``encourage'' 
contractors to submit paper documents, such as offers, letters, or 
reports, printed or copied double-sided on 30 percent post-consumer 
recycled content paper. The commenter then provided other examples, 
which were identified to them by the Office of the Federal 
Environmental Executive.
    In conclusion, the commenter recommended that USDA provide some 
additional regulatory language indicating when procurement is 
considered incidental to federal funding. The commenter offered the 
following example. Unless a material procurement meets all three of the 
following tests it would be considered incidental to the purpose of the 
contract: (1) The biobased material item is ultimately delivered to the 
federal government, or is consumed on the government facility as part 
of performing the contract; (2) The biobased material is not a 
subcomponent of a commercially available manufactured item (for 
example, the hydraulic fluid provided in a piece of equipment) unless 
the industry provides for procuring the item with a biobased component 
option; and (3) The presence or absence of the biobased material can 
reasonably be determined from technical data sheets or other available 
product information.
    Response: The definition of ``procuring agency'' in FSRIA section 
9001, as amended by the Energy Policy Act of 2005, makes it clear that 
the requirements of section 9002 apply to ``indirect purchases'' (i.e., 
purchases by contractors). However, the requirements to purchase 
biobased products do not apply to such purchases if they are unrelated 
to or incidental to the purpose of the Federal contract. For example, 
when a construction contractor purchases hydraulic fluid for 
maintenance service of construction equipment being used in the 
performance of a Federal building construction contract, that purchase 
is incidental to the purpose of the construction contract. The 
hydraulic fluid purchase would not be subject to the requirements of 
section 9002 or the guidelines, even though some of the monies received 
under the contract might be used to finance the purchase. USDA issued 
an Interim Final Rule on July 27, 2006 (71 FR 42572) amending the 
Guidelines at 7 CFR part 2902 to clarify that incidental purchases are 
excepted. Agencies may, however, encourage contractors to investigate 
biobased products in order to further develop markets for these 
products.
Need for Program
    Comment: One commenter questioned the need for ``another mandatory 
preference program.'' According to the commenter, the proposed rule is 
``diametrically opposed'' to the Federal Acquisition Reform Act, which 
is supposed to simplify the Government acquisition process. The 
commenter concludes that ``unless the manufacturers and vendors of the 
items listed in the proposed rule can price them competitively (since 
unreasonable price is an exception to the rule), no [contracting 
officer] worth their weight will give the program a second look.''
    Response: USDA respectfully disagrees with the commenter's 
assessment of the need and possible outcome of the BioPreferred 
Program. The Congressional intent in establishing the statutory 
requirements of section 9002 were clearly spelled out in section 9002 
and the subsequent Guidelines. The BioPreferred Program is not intended 
to make Federal procurement more complicated, only to ensure that 
procuring agencies give preference to biobased products that meet the 
cost, performance, and availability criteria. USDA is confident that 
manufacturers of biobased products will strive to develop and market 
products that meet these criteria, including cost competitive biobased 
products.
Qualifying Products and Country of Origin
    Comment: One commenter expressed concern about the inability to 
verify that feedstocks (e.g., palm or palm kernel oil or tallows) used 
in surfactants originate from domestic sources or from designated 
countries. According to the commenter, the major sources of palm and 
palm kernel oil are Malaysia and the Philippines, neither of which is 
on the FAR list of designated countries and, to their knowledge, there 
is no production of palm or palm kernel oil in the U.S. or designated 
countries. Therefore, USDA should not assume feedstocks for biobased 
products are produced in the U.S. or in FAR-designated countries. The 
commenter, in referring to the inability of the ASTM D6866 to determine 
the country of