Designation of Biobased Items for Federal Procurement, 63298-63328 [E8-25037]

Agencies

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

[Federal Register Volume 73, Number 206 (Thursday, October 23, 2008)]
[Proposed Rules]
[Pages 63298-63328]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25037]



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Part IV





Department of Agriculture





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 Office of Energy Policy and New Uses



7 CFR Part 2902



 Designation of Biobased Items for Federal Procurement; Proposed Rule

Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / 
Proposed Rules

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DEPARTMENT OF AGRICULTURE

Office of Energy Policy and New Uses

7 CFR Part 2902

RIN 0503-AA33


Designation of Biobased Items for Federal Procurement

AGENCY: Departmental Administration, USDA.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to 
amend the Guidelines for Designating Biobased Products for Federal 
Procurement, by adding nine sections to designate the following nine 
items within which biobased products would be afforded Federal 
procurement preference: Chain and cable lubricants; corrosion 
preventatives; food cleaners; forming lubricants; gear lubricants; 
general purpose household cleaners; industrial cleaners; multipurpose 
cleaners; and parts wash solutions. USDA also is proposing minimum 
biobased content for each of these items.

DATES: USDA will accept public comments on this proposed rule until 
December 22, 2008.

ADDRESSES: You may submit comments by any of the following methods. All 
submissions received must include the agency name and Regulatory 
Information Number (RIN). The RIN for this rulemaking is 0503-AA33. 
Also, please identify submittals as pertaining to the ``Proposed 
Designation of Items.''
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: biopreferred@usda.gov. Include RIN number 0503-
AA33 and ``Proposed Designation of Items'' on the subject line. Please 
include your name and address in your message.
     Mail/commercial/hand delivery: Mail or deliver your 
comments to: Shana Love, USDA, Office of the Assistant Secretary for 
Administration, Room 209A, Whitten Building, 1400 Independence Avenue, 
SW., Washington, DC 20250-0103.
     Persons with disabilities who require alternative means 
for communication for regulatory information (Braille, large print, 
audiotape, etc.) should contact the USDA TARGET Center at (202) 720-
2600 (voice) and (202) 401-4133 (TDD).

FOR FURTHER INFORMATION CONTACT: Shana Love, USDA, Office of the 
Assistant Secretary for Administration, Room 209A, Whitten Building, 
1400 Independence Avenue, SW., Washington, DC 20250-0103; e-mail: 
biopreferred@usda.gov; phone (202) 205-4008. 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 Today's Proposed Rule
IV. Designation of Items, Minimum Biobased Contents, and Time Frame
    A. Background
    B. Items Proposed for Designation
    C. Minimum Biobased Contents
    D. Compliance Date for Procurement Preference and Incorporation 
Into Specifications
V. Where Can Agencies Get More Information on These USDA-Designated 
Items?
VI. Regulatory Information
    A. Executive Order 12866: Regulatory Planning and Review
    B. Regulatory Flexibility Act (RFA)
    C. Executive Order 12630: Governmental Actions and Interference 
With Constitutionally Protected Property Rights
    D. Executive Order 12988: Civil Justice Reform
    E. Executive Order 13132: Federalism
    F. Unfunded Mandates Reform Act of 1995
    G. Executive Order 12372: Intergovernmental Review of Federal 
Programs
    H. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    I. Paperwork Reduction Act
    J. Government Paperwork Elimination Act Compliance

I. Authority

    The designation of these items is proposed under the authority of 
section 9002 of the Farm Security and Rural Investment Act of 2002 
(FSRIA), as amended by the Food, Conservation, and Energy Act of 2008 
(FCEA), 7 U.S.C. 8102 (referred to in this document as ``section 
9002'').

II. Background

    Section 9002, as amended by the FCEA of 2008, provides for the 
preferred procurement of biobased products by Federal procuring 
agencies (referred to hereafter in this FR notice as the ``preferred 
procurement program''). The definition of ``procuring agency'' in 
section 9002, as amended by the FCEA of 2008, includes both Federal 
agencies and ``a person that is a party to a contract with any Federal 
agency, with respect to work performed under such a contract.'' Thus, 
Federal contractors, as well as Federal agencies, are expressly subject 
to the procurement preference provisions of section 9002.
    Once USDA designates an item, procuring agencies are required 
generally to purchase biobased products within these designated items 
where the purchase price of the procurement item exceeds $10,000 or 
where the quantity of such items or the functionally equivalent items 
purchased over the preceding fiscal year equaled $10,000 or more. 
Procuring agencies must procure biobased products within each 
designated item unless they determine that products within a designated 
item are not reasonably available within a reasonable period of time, 
fail to meet the reasonable performance standards of the procuring 
agencies, or are available only at an unreasonable price. As stated in 
the Guidelines, biobased products that are merely incidental to Federal 
funding are excluded from the preferred procurement program; that is, 
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. To illustrate, you are awarded a Federal contract to 
construct a Federal office building with elevators. The elevators 
require hydraulic fluid to operate. Because stationary equipment 
hydraulic fluids are an item that has been designated for preferred 
procurement, the hydraulic fluid purchased for use in the elevators 
would be subject to the requirements of section 9002. In order to 
install these elevators, cranes may be used. These cranes require 
hydraulic fluid to operate. The hydraulic fluid purchased for the 
maintenance of these cranes used in the performance of that contract, 
however, is considered to be incidental to the purpose of the Federal 
contract. Because it is incidental, it would not be subject to the 
requirements of section 9002, even though some of the monies received 
under the contract might be used to purchase the hydraulic fluid used 
in the cranes.
    In implementing the preferred procurement program for biobased 
products, procuring agencies should follow their procurement rules and 
Office of Federal Procurement Policy guidance on buying non-biobased 
products when biobased products exist and should document exceptions 
taken for price, performance, and availability.
    USDA recognizes that the performance needs for a given application 
are important criteria in making procurement decisions. USDA is not 
requiring procuring agencies to limit their choices to biobased 
products that fall under the items for designation in this proposed 
rule. Rather, the effect of the designation of the items is to require 
procuring agencies to determine their

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performance needs, determine whether there are qualified biobased 
products that fall under the designated items that meet the reasonable 
performance standards for those needs, and purchase such qualified 
biobased products to the maximum extent practicable as required by 
section 9002.
    Section 9002(a)(3)(B), as amended by the FCEA of 2008, requires 
USDA to provide information to procuring agencies on the availability, 
relative price, performance, and environmental and public health 
benefits of such items and to recommend where appropriate the minimum 
level of biobased content to be contained in the procured products.
    It is the responsibility of the manufacturers to ``self-certify'' 
that each product being offered as a biobased product for preferred 
procurement contains qualifying feedstock. USDA will develop a 
monitoring process for these self-certifications to ensure 
manufacturers are using qualifying feedstocks. If misrepresentations 
are found, USDA will remove the subject biobased product from the 
preferred procurement program and may take further actions as deemed 
appropriate.
    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 exist, USDA intends to 
create subcategories. For example, for the item ``hand cleaners and 
sanitizers,'' USDA has determined it is reasonable to create a ``hand 
cleaner'' subcategory and a ``hand sanitizer'' subcategory. Sanitizing 
specifications would be applicable to the latter 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 deicing products are required to meet, but it has 
only information on one type of deicing 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.
    Within today's proposed rule, USDA is not proposing subcategories 
for any of the nine items being proposed for designation, but is 
requesting specific comments on the appropriateness of creating 
subcategories within several items.
    Minimum Biobased Contents. The minimum biobased contents being 
proposed with today's rule 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 
including product performance information 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 
decisions 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 designated items, USDA will 
evaluate whether the minimum biobased content for a designated item 
will be revised.
    USDA anticipates that the minimum biobased content of an item that 
is based on a single product is more likely to change as additional 
products within that item are identified and tested. In today's 
proposed rule, none of the minimum biobased contents for the designated 
items are based on a single tested product.
    Where USDA receives additional information on biobased content for 
products within these proposed items during the public comment period, 
USDA will take that information into consideration when establishing 
the minimum biobased content when the items are designated in the final 
rulemaking.
    Overlap with EPA's Comprehensive Procurement Guideline program for 
recovered content products under the Resource Conservation and Recovery 
Act (RCRA) Section 6002. Some of the products that are biobased items 
designated for preferred procurement under the preferred procurement 
program 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 
Sec.  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 fossil energy-based components 
(including petroleum, coal, and natural gas) 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,''Standard Practice for Evaluating and 
Reporting Environmental Performance of Biobased Products,'' for 
evaluating and reporting on environmental performance of biobased 
products). Such information will permit agencies to determine whether 
or not an overlap occurs. Detailed information on the BEES analytical 
tool can be found on the Web site https://www.bfrl.nist.gov/oae/
software/bees.html. Summary information on ASTM Standard D7075, and 
other ASTM standards, can be

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found on ASTM's Web site at https://www.astm.org.
    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 proposed rule designates one item for preferred procurement 
for which there may be overlap with an EPA-designated recovered content 
product. This item is ``gear lubricants,'' which, depending on how they 
are used, may overlap with the EPA-designated recovered content product 
``Re-refined Lubricating Oils.'' EPA provides recovered materials 
content recommendations for this recovered content product in a 
Recovered Materials Advisory Notice (RMAN I). The RMAN recommendations 
for this CPG product 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.
    Federal Government Purchase of ``Green'' Products. Three components 
of the Federal government's green purchasing program are the Biobased 
Products Preferred Purchasing Program, the Environmental Protection 
Agency's Comprehensive Procurement Guideline for Products Containing 
Recovered Materials, and the Environmentally Preferable Products 
Program. The Office of the Federal Environmental Executive (OFEE) and 
the Office of Management and Budget (OMB) encourage agencies to 
implement these components comprehensively when purchasing products and 
services.
    Procuring agencies should note that not all biobased products are 
``environmentally preferable.'' For example, unless cleaning products 
contain no or reduced levels of metals and toxic and hazardous 
constituents, they can be harmful to aquatic life, the environment, 
and/or workers. Household cleaning products that are formulated to be 
disinfectants are required, under the Federal Insecticide, Fungicide 
and Rodenticide Act (FIFRA), to be registered with EPA and must meet 
specific labeling requirements warning of the potential risks 
associated with misuse of such products. When purchasing 
environmentally preferable cleaning products, many Federal agencies 
specify that products must meet Green Seal standards \1\ for 
institutional cleaning products or that products must have been 
reformulated in accordance with recommendations from the U.S. EPA's 
Design for the Environment (DfE) program. Both the Green Seal standards 
and the DfE program identify chemicals of concern in cleaning products. 
These include zinc and other metals, formaldehyde, ammonia, alkyl 
phenol ethoxylates, ethylene glycol ethers, and volatile organic 
compounds. In addition, both require that cleaning products have 
neutral or less caustic pH.
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    \1\ Reference to these standards does not represent or imply any 
endorsement by USDA.
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    On the other hand, some biobased products may be better for the 
environment than some products that meet Green Seal standards for 
institutional cleaning products or that have been reformulated in 
accordance with EPA's DfE program. To fully compare products, one must 
look at the ``cradle-to-grave'' impacts of the manufacture, use, and 
disposal of products. Biobased products that will be available for 
preferred procurement under this program have been assessed as to their 
``cradle-to-grave'' impacts.
    One consideration of a product's impact on the environment is 
whether (and to what degree) it introduces new, fossil carbon into the 
atmosphere. Qualifying biobased products offer the user the opportunity 
to manage the carbon cycle and limit the introduction of new, fossil 
carbon into the atmosphere, whereas non-biobased products derived from 
fossil fuels add new, fossil carbon to the atmosphere.
    Manufacturers of qualifying biobased products under the preferred 
procurement program will be able to provide, at the request of Federal 
agencies, factual information on environmental and human health effects 
of their products, including the results of the BEES analysis, which 
examines 11 different environmental parameters, including human health, 
or the comparable ASTM D7075. Therefore, USDA encourages Federal 
procurement agencies to examine all available information on the 
environmental and human health effects of products when making their 
purchasing decisions.
    Other Preferred Procurement Programs. Federal procurement officials 
should also note that biobased products may be available for purchase 
by Federal agencies through the AbilityOne Program (formerly known as 
the Javits-Wagner-O'Day (JWOD) program). Under this program, members of 
organizations including the National Industries for the Blind (NIB) and 
the National Institute for the Severely Handicapped (NISH) offer 
products and services for preferred procurement by Federal agencies. A 
search of the AbilityOne Program's JWOD online catalog (https://
www.jwodcatalog.com) indicated that three of the items being proposed 
today (``general purpose household cleaners'', ``industrial cleaners'', 
and ``multipurpose cleaners'') are available through the AbilityOne 
Program. While none of the specific products within these items are 
identified in the JWOD online catalog as being biobased products, there 
currently are biobased cleaning products available from at least one 
NIB affiliate. Also, because additional categories of products are 
frequently added to the AbilityOne Program, it is possible that 
biobased products within other items being proposed for designation 
today may be available through the AbilityOne Program in the future. 
Procurement of biobased products through the AbilityOne Program would 
further the objectives of both the AbilityOne Program and the preferred 
procurement program.
    Interagency Council. USDA has created, and is chairing, an 
``interagency council'' with membership selected from among Federal 
stakeholders to the preferred procurement program. To augment its own 
research, USDA consults with this council in identifying the order of 
item designation, manufacturers producing and marketing products that 
fall within an item proposed for designation, performance

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standards used by Federal agencies evaluating products to be procured, 
and warranty information used by manufacturers of end user equipment 
and other products with regard to biobased products.
    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 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 Today's Proposed Rule

    USDA is proposing to designate the following nine items for 
preferred procurement: Chain and cable lubricants; corrosion 
preventatives; food cleaners; forming lubricants; gear lubricants; 
general purpose household cleaners; industrial cleaners; multipurpose 
cleaners; and parts wash solutions. USDA is also proposing minimum 
biobased content for each of these items (see Section IV.C). Lastly, 
USDA is proposing a date by which Federal agencies must incorporate 
designated items into their procurement specifications (see Section 
IV.D).
    In today's proposed rule, USDA is providing information on its 
findings as to the availability, economic and technical feasibility, 
environmental and public health benefits, and life-cycle costs for each 
of the designated items. Information on the availability, relative 
price, performance, and environmental and public health benefits of 
individual products within each of these items is not presented in this 
notice. Further, USDA has reached an agreement with manufacturers not 
to publish their names in the Federal Register when designating items. 
This agreement was reached to encourage manufacturers to submit 
products for testing to support the designation of an item. Once an 
item has been designated, USDA will encourage the manufacturers of 
products within the designated item to voluntarily make their names and 
other contact information available for the BioPreferred Web site.
    Warranties. Some of the items, including subcategories, being 
proposed for designation today may affect maintenance warranties. As 
time and resources allow, USDA will work with original equipment 
manufacturers (OEMs) on addressing any effect the use of biobased 
products may have on their maintenance warranties. At this time, 
however, USDA does not have information available as to whether or not 
OEMs will state that the use of these products will void their 
maintenance warranties. This does not mean that use of biobased 
products will void warranties, only that USDA does not currently have 
such information. USDA encourages manufacturers of biobased products to 
test their products against all relevant standards, including those 
that affect warranties, and to work with OEMs to ensure that biobased 
products will not void maintenance warranties when used. Whenever 
manufacturers of biobased products find that existing performance 
standards for maintenance warranties are not relevant or appropriate 
for biobased products, USDA is willing to assist them in working with 
the appropriate OEMs to develop tests that are relevant and appropriate 
for the end uses in which biobased products are intended. If, in spite 
of these efforts, there is insufficient information regarding the use 
of a biobased product and its effect of maintenance warranties, USDA 
notes that the procurement agent would not be required to buy such a 
product. As information is available on warranties, USDA will make such 
information available on the BioPreferred Web site.
    Additional Information. USDA is working with manufacturers and 
vendors to make all relevant product and manufacturer contact 
information available on the BioPreferred Web site before a procuring 
agency asks for it, in order to make the preferred program more 
efficient. Steps USDA has implemented, or will implement, include: 
Making direct contact with submitting companies through e-mail and 
phone conversations to encourage completion of product listing; 
coordinating outreach efforts with intermediate material producers to 
encourage participation of their customer base; conducting targeted 
outreach with industry and commodity groups to educate stakeholders on 
the importance of providing complete product information; participating 
in industry conferences and meetings to educate companies on program 
benefits and requirements; and communicating the potential for expanded 
markets beyond the Federal government, to include State and local 
governments, as well as the general public markets. Section V provides 
instructions to agencies on how to obtain this information on products 
within these items through the following Web site: https://
www.biopreferred.gov.
    Comments. USDA invites comment on the proposed designation of these 
items, including the definition, proposed minimum biobased content, and 
any of the relevant analyses performed during the selection of these 
items. In addition, USDA invites comments and information in the 
following areas:
    1. One item, ``gear lubricants,'' may overlap with one of the 
products designated under EPA's Comprehensive Procurement Guideline for 
Products Containing Recovered Material. To help procuring agencies in 
making their purchasing decisions between biobased products within the 
proposed designated items that overlap with products containing 
recovered material, USDA is requesting product specific information on 
unique performance attributes, environmental and human health effects, 
disposal costs, and other attributes that would distinguish biobased 
products from products containing recovered material as well as non-
biobased products.
    2. We have attempted to identify relevant and appropriate 
performance standards and other relevant measures of performance for 
each of the proposed items. If you know of other such standards or 
relevant measures of performance for any of the proposed items, USDA 
requests that you submit information identifying such standards and 
measures, including their name (and other identifying information as 
necessary), identifying who is using the standard/measure, and 
describing the circumstances under which the product is being used.
    3. Many biobased products within the items being proposed for 
designation will have positive environmental and human health 
attributes. USDA is seeking comments on such attributes in order to 
provide additional information on the BioPreferred Web site. This 
information will then be available to Federal procuring agencies and 
will assist them in making ``best value'' purchase decisions. When 
possible, please provide appropriate documentation to support the

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environmental and human health attributes you describe.
    4. Several items (i.e., ``corrosion preventatives,'' ``industrial 
cleaners,'' and ``multipurpose cleaners'') have wide ranges of tested 
biobased contents. For the reasons discussed later in this preamble, 
USDA is proposing minimum biobased content levels for these items that 
would allow a high percentage of the tested products to be eligible for 
preferred procurement. USDA welcomes comments on the appropriateness of 
the proposed minimum biobased contents for these items and whether 
there are potential subcategories within the items that should be 
considered.
    5. USDA considered combining the proposed items ``gear 
lubricants,'' ``chain and cable lubricants,'' and ``forming 
lubricants'' into a single designated item with multiple subcategories. 
The decision to propose the items separately was based largely on the 
differences in functional performance between the items. While the 
basic purpose of products within each of these items is to provide 
lubrication, the applications and the conditions under which they 
perform are very different. USDA requests comments from procuring 
agencies and manufacturers of products within these items specifically 
addressing the advantages and disadvantages of these items being 
designated separately versus combined into a single item with 
subcategories.
    All comments should be submitted as directed in the ADDRESSES 
section above.
    To assist you in developing your comments, the background 
information used in proposing these items for designation has been 
assembled in a technical support document, ``Technical Support for 
Proposed Rule--Round 5 Designated Items,'' which 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). At 
the BioPreferred Web site, click on the Proposed and Final Regulations 
link on the left side of the page. At the next screen, click on the 
Supporting Documentation link under Round 5 Designated Items under the 
Proposed Regulations section. This will bring you to the link to the 
technical support document.

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

A. Background

    In order to designate items (generic groupings of specific products 
such as crankcase oils or products that contain qualifying biobased 
fibers) for preferred procurement, section 9002 requires USDA to 
consider: (1) The availability of items and (2) the economic and 
technological feasibility of using the items, including the life-cycle 
costs of the items.
    In considering an item's availability, USDA uses several sources of 
information. USDA performs Internet searches, contacts trade 
associations (such as the Bio organization) and commodity groups, 
searches the Thomas Register (a database, used as a resource for 
finding companies and products manufactured in North America, 
containing over 173,000 entries), and contacts individual manufacturers 
and vendors to identify those manufacturers and vendors with biobased 
products within items being considered for designation. USDA uses the 
results of these same searches to determine if an item is generally 
available.
    In considering an item's economic and technological feasibility, 
USDA examines evidence pointing to the general commercial use of an 
item and its cost and performance characteristics. This information is 
obtained from the sources used to assess an item's availability. 
Commercial use, in turn, is evidenced by any manufacturer and vendor 
information on the availability, relative prices, and performance of 
their products as well as by evidence of an item being purchased by a 
procuring agency or other entity, where available. In sum, USDA 
considers an item economically and technologically feasible for 
purposes of designation if products within that item are being offered 
and used in the marketplace.
    In considering the life-cycle costs of items proposed for 
designation, USDA uses the BEES analytical tool to test individual 
products within each proposed item. The BEES analytical tool measures 
the environmental performance and the economic performance of a 
product.
    Environmental performance is measured in the BEES analytical tool 
using the internationally-standardized and science-based, life-cycle 
assessment approach specified in the International Organization for 
Standardization (ISO) 14000 standards. The BEES environmental 
performance analysis, which includes human health as one of its 
components, is a ``cradle-to-grave'' assessment of a product. In it, 
all stages in the life of a product are analyzed: Raw material 
production; manufacture; transportation; installation; use; and 
recycling and waste management. The time period over which 
environmental performance is measured begins with raw material 
production and ends with disposal (waste management). The BEES 
environmental performance analysis also addresses products made from 
biobased feedstocks.
    Economic performance in the BEES analysis is measured using the 
ASTM Standard E917, ``Standard Practice for Measuring Life-Cycle Costs 
of Buildings and Building Systems,'' which covers the costs of initial 
investment, replacement, operation, maintenance and repair, and 
disposal. The time frame for economic performance extends from the 
purchase of the product to final disposal. USDA then utilizes the BEES 
results of individual products within a designated item in its 
consideration of the life-cycle costs at the item level.
    The environmental performance results are reported as both an 
impact value and as an environmental performance score for 12 different 
environmental impact areas:
     Acidification,
     Criteria pollutants,
     Ecological toxicity,
     Eutrophication,
     Fossil fuel depletion,
     Global warming,
     Habitat alteration,
     Human health,
     Indoor air quality,
     Ozone depletion,
     Smog, and
     Water intake.
    For each environmental impact area, BEES estimates the impact a 
product has in an area using certain units to standardize impacts. For 
example, acidification is measured as ``millimoles of hydrogen 
equivalents,'' while eutrophication is measured as ``grams of nitrogen 
equivalents.'' Thus, for acidification, BEES estimates how many 
millimoles of hydrogen equivalents and how many grams of nitrogen 
equivalents a product generates as the result of its production and 
use. These values are referred to as ``impact values'' and are 
calculated on a per functional unit basis. For example, the impact 
value for eutrophication for a chain and cable lubricant product was 
estimated to be 105 grams of nitrogen equivalents for one gallon of 
product (the functional unit).
    The impact values for a product are then used to determine the 
environmental performance scores of a product within each of the 12 
environmental impact areas. The

[[Page 63303]]

environmental performance score is a measure of the share a product 
contributes towards the annual per capita U.S. environmental impact in 
one of the 12 environmental impact areas. For example, the global 
warming impact value of a chain and cable lubricant product was 
estimated to be 9,710 grams of carbon dioxide equivalents. The total 
amount of carbon dioxide equivalents emitted in the United States in 
one year is divided by the U.S. population to yield a ``global warming 
per person'' value. The product's global warming impact value is then 
divided by the ``global warming per person'' value to derive the 
product's share of global warming. Specifically, for this example, the 
global warming environmental performance score is estimated to be 
0.0061. That is, every one gallon of this chain and cable lubricant is 
estimated to contribute 0.0061 percent to the global warming per person 
value.
    For both the impact values and the environmental performance 
scores, the BEES analysis uses a single unit of comparison associated 
with each designated item. The basis for the unit of comparison is the 
``functional unit,'' defined so that the products compared within an 
item are true substitutes for one another. If significant differences 
have been identified in the useful lives of alternative products within 
a designated item (e.g., if one product lasts twice as long as 
another), the functional unit includes reference to a time dimension to 
account for the frequency of product replacement. The functional unit 
also accounts for products used in different amounts for equivalent 
service. For example, one surface coating product may be 
environmentally and economically preferable to another on a pound-for-
pound basis, but may require twice the mass to cover one square foot of 
surface, and last half as long, as the other product. To account for 
these performance differences, the functional unit for the surface 
coating item could be ``one square foot of application for 20 years'' 
instead of ``one pound of surface coating product.'' The functional 
unit provides the critical reference point to which all BEES results 
for products within an item are scaled. Because functional units vary 
from item to item, performance comparisons are valid only among 
products within a designated item.
    The complete results of the BEES analysis, extrapolated to the item 
level, for each item proposed for designation in today's proposed rule 
can be found in the technical support document for this proposed rule.
    As discussed above, the BEES analysis includes information on the 
environmental performance, human health impacts, and economic 
performance. In addition, ASTM Standard D7075, which manufacturers may 
use in lieu of the BEES analytical tool, provides similar information. 
USDA is working with manufacturers and vendors to make this information 
available on the BioPreferred Web site in order to make the preferred 
procurement program more efficient.
    As discussed earlier, USDA has also implemented, or will implement, 
several other steps intended to educate the manufacturers and other 
stakeholders on the benefits of this program and the need to make this 
information, including manufacturer contact information, available on 
the BioPreferred Web site in order to then make it available to 
procurement officials. Additional information on specific products 
within the items proposed for designation may also be obtained directly 
from the manufacturers of the products. USDA has also provided a link 
on the BioPreferred Web site to the Defense Standardization Program and 
to General Services Administration (GSA)-related standards lists used 
as guidance when procuring products. These lists can be accessed 
through the ``Selling to the Federal Government'' link on the 
BioPreferred Web site.
    USDA recognizes that information related to the functional 
performance of biobased products is a primary factor in making the 
decision to purchase these products. USDA is gathering information on 
industry standard test methods and performance standards that 
manufacturers are using to evaluate the functional performance of their 
products. (Test methods are procedures used to provide information on a 
certain attribute of a product. For example, a test method might 
determine how many bacteria are killed. Performance standards identify 
the level at which a product must perform in order for it to be 
``acceptable'' to the entity that set the performance standard. For 
example, a performance standard might require that a certain percentage 
(e.g., 95 percent) of the bacteria must be killed through the use of 
the product.) The primary source of information on these test methods 
and performance standards are manufacturers of biobased products within 
these items. Additional test methods and performance standards are also 
identified during meetings of the Interagency council and during the 
review process for each proposed rule. We have listed, under the 
detailed discussion of each item proposed for designation (presented in 
Section IV.B), the functional performance test methods, performance 
standards, product certifications, and other measures of performance 
associated with the functional aspects of products identified during 
the development of this Federal Register notice for these items.
    While this process identifies many of the relevant test methods and 
standards, USDA recognizes that those identified herein do not 
represent all of the methods and standards that may be applicable for a 
designated item or for any individual product within the designated 
item. As noted earlier in this preamble, USDA is requesting 
identification of any other relevant performance standards and measures 
of performance. As the program becomes fully implemented, these and 
other additional relevant performance standards will be available on 
the BioPreferred Web site.
    In gathering information relevant to the analyses discussed above 
for this proposed rule, USDA has made extensive efforts to contact and 
request information and product samples within the items proposed for 
designation. For product information, USDA has attempted to contact 
representatives of the manufacturers of biobased products identified by 
the preferred procurement program. For product samples on which to 
conduct biobased content tests and BEES analysis, USDA has attempted to 
obtain samples and BEES input information for at least five different 
suppliers of products within each item in today's proposed rule. 
However, because the submission of information and samples is on a 
strictly voluntary basis, USDA was able to obtain information and 
samples only from those manufacturers who were willing voluntarily to 
invest the resources required to gather and submit the information and 
samples. The data presented are all the data that were submitted in 
response to USDA requests for information from manufacturers of the 
products within the items proposed for designation. While USDA would 
prefer to have complete data on the full range of products within each 
item, the data that were submitted are sufficient to support 
designation of the items in today's proposed rule.
    To propose an item for designation, USDA must have sufficient 
information on a sufficient number of products within an item to be 
able to assess its availability and its economic and technological 
feasibility, including its life-cycle costs. For some items, there may 
be numerous products available. For other items, there may be very few

[[Page 63304]]

products currently available. Given the infancy of the market for some 
items, it is not unexpected that even single-product items will be 
identified. Further, given that the intent of section 9002 is largely 
to stimulate the production of new biobased products and to energize 
emerging markets for those products, USDA has determined it is 
appropriate to designate an item or subcategory for preferred 
procurement even when there is only a single product with a single 
supplier. However, USDA has also determined that in such situations it 
is appropriate to defer the effective preferred procurement date until 
such time that more than one supplier is identified in order to provide 
choice to procuring agencies. Similarly, the documented availability, 
benefits, and life-cycle costs of even a very small percentage of all 
products that may exist within an item are also considered sufficient 
to support designation.

B. Items Proposed for Designation

    USDA uses a model (as summarized below) to identify and prioritize 
items for designation. Through this model, USDA has identified over 100 
items for potential designation under the preferred procurement 
program. A list of these items and information on the model can be 
accessed on the BioPreferred Web site at https://www.biopreferred.gov.
    In general, items are developed and prioritized for designation by 
evaluating them against program criteria established by USDA and by 
gathering information from other government agencies, private industry 
groups, and manufacturers. These evaluations begin by look at the cost, 
performance, and availability of products within each item. USDA then 
considers the following points:
     Are there manufacturers interested in providing the 
necessary test information on products within a particular item?
     Are there a number of manufacturers producing biobased 
products in this item?
     Are there products available in this item?
     What level of difficulty is expected when designating this 
item?
     Is there Federal demand for the product?
     Are Federal procurement personnel looking for biobased 
products?
     Will an item create a high demand for biobased feed stock?
     Does manufacturing of products within this item increase 
potential for rural development?
    After completing this evaluation, USDA prioritizes the list of 
items for designation. USDA then gathers information on products within 
the highest priority items and, as sufficient information becomes 
available for groups of approximately 10 items, a new rulemaking 
package is developed to designate the items within that group. USDA 
points out that the list of items may change, with items being added or 
dropped, and that the order in which items are proposed for designation 
is likely to change because the information necessary to designate an 
item may take more time to obtain than an item lower on the list.
    In today's proposed rule, USDA is proposing to designate the 
following items for the preferred procurement program: Chain and cable 
lubricants; corrosion preventatives; food cleaners; forming lubricants; 
gear lubricants; general purpose household cleaners; industrial 
cleaners; multipurpose cleaners; and parts wash solutions. USDA has 
determined that each of these proposed items meets the necessary 
statutory requirements--namely, that they are being produced with 
biobased products and that their procurement by procuring agencies will 
carry out the following objectives of section 9002:
     To increase demand for biobased products, which would in 
turn increase demand for agricultural commodities that can serve as 
feedstocks for the production of biobased products;
     To spur development of the industrial base through value-
added agricultural processing and manufacturing in rural communities; 
and
     To enhance the Nation's energy security by substituting 
biobased products for products derived from imported oil and natural 
gas.
    Further, USDA has sufficient information on the items to determine 
their availability and to conduct the requisite analyses to determine 
their biobased content and their economic and technological 
feasibility, including life-cycle costs.
    Overlap with EPA's Comprehensive Procurement Guideline program for 
recovered content products. In today's proposed rule, one item may 
overlap with the EPA-designated recovered content product ``Re-refined 
Lubricating Oils.'' This item is ``gear lubricants.'' For this item, 
USDA is requesting that information on the qualifying biobased ``gear 
lubricants'' be made available by their manufacturers to assist Federal 
agencies in determining if an overlap exists between ``gear 
lubricants'' and ``Re-refined Lubricating Oils'' (the applicable EPA-
designated recovered content product).
    As noted earlier in this preamble, USDA is requesting information 
on overlap situations to further help procuring agencies make informed 
decisions when faced with purchasing a recovered content material 
product or a biobased product. As this information is developed, USDA 
will make it available on the BioPreferred Web site.
    Exemptions. As explained in the May 14, 2008 Federal Register 
notice (73 FR 27928) promulgating the Round 2 designated items, the 
National Aeronautics and Space Administration (NASA) and the Department 
of Defense (DoD) are exempt from the procurement preference 
requirements that would be afforded to the items contained in today's 
proposed rule with respect to products used in space applications and 
combat and combat-related applications, respectively. In other words, 
they would apply to operations underlying NASA's and DoD's mission, 
such as janitorial services contracts, but not to uses on the space 
shuttle and military equipment. These ``blanket'' exemptions are 
contained in subpart A of part 2902. Therefore, today's proposed rule 
would not apply to NASA and DoD, as provided in subpart A of part 2902.
    Although each item in today's proposed rule would be exempt from 
the procurement preference requirement, this exemption does not extend 
to contractors performing work for NASA or DoD other than direct 
maintenance and support of the space shuttle and combat equipment. For 
example, if a contractor is producing a part for use on the space 
shuttle, the metalworking fluid the contractor uses to produce the part 
should be biobased (provided it meets the specifications for 
metalworking). The exemption does apply, however, if the product being 
purchased by the contractor is for use in combat or combat-related 
missions or for use in space applications. For example, if the part 
being produced by the contractor would actually be part of the space 
shuttle, then the exemption applies.
    USDA points out that it is not the intent of these exemptions to 
imply that biobased products are inferior to non-biobased products. If 
manufacturers of biobased products can meet the concerns of these two 
agencies, USDA is willing to reconsider such exemptions on an item-by-
item basis.
    Each of the proposed designated items are discussed in the 
following sections.
1. Chain and Cable Lubricants
    Chain and cable lubricants are products designed to provide 
lubrication for such applications as bar and roller chains, sprockets, 
and wire

[[Page 63305]]

ropes and cables. The products may also be designed to prevent rust and 
corrosion in these applications.
    USDA identified 20 different manufacturers producing 37 individual 
biobased chain and cable lubricant products. These 20 manufacturers do 
not necessarily include all manufacturers of biobased chain and cable 
lubricants, merely those identified during USDA information gathering 
activities. Information supplied by these manufacturers indicates that 
these products are being used commercially. In addition, manufacturers 
and stakeholders identified two test methods (as shown below) used in 
evaluating products within this item. While there may be additional 
test methods, as well as performance standards, product certifications, 
and other measures of performance, applicable to products within this 
item, the two test methods identified by manufacturers of products 
within this item are:
Test Methods
     Shake Flask Test (CG-2000) used by the lubricant industry 
to evaluate biodegradability (Environmental Protection Agency 
560/6-82-003); and
     Methods for Measuring the Acute Toxicity of Effluents and 
Receiving Waters to Freshwater and Marine Organisms (Environmental 
Protection Agency 600/4-90-027).
    USDA contacted procurement officials with various procuring 
agencies including the GSA, several offices within the Defense 
Logistics Agency, the OFEE, USDA Departmental Administration, the 
National Park Service, EPA, Oak Ridge National Laboratory, and OMB in 
an effort to gather information on the purchases of chain and cable 
lubricants and products within the other eight items proposed for 
designation today. Communications with these officials led to the 
conclusion that obtaining credible current usage statistics and 
specific potential markets within the Federal government for biobased 
products within the proposed designated items is not possible at this 
time.
    Most of the contacted officials reported that procurement data are 
reported in higher level groupings of materials and supplies than the 
proposed designated items. Using terms that best match the items in 
today's proposed rule, USDA queried the GSA database for Federal 
purchases of products within today's proposed items. The results 
indicate purchases of products within items in today's proposed rule. 
The results of this inquiry can be found in the technical support 
document for this proposed rule. Also, the purchasing of such materials 
as part of contracted services and with individual purchase cards used 
to purchase products locally further obscures credible data on 
purchases of specific products.
    USDA also investigated the Web site FEDBIZOPPS.gov, a site which 
lists Federal contract purchase opportunities greater than $25,000. The 
information provided on this Web site, however, is for broad categories 
of products rather than the specific types of products that are 
included in today's proposed rule. Therefore, USDA has been unable to 
obtain data on the amount of chain and cable lubricants purchased by 
procuring agencies. However, Federal agencies perform, or procure 
contract services to perform, activities, such as maintenance, clean-
up, and tree removal, in which chain and cable lubricants are used. For 
example, although quantities were not obtained, the National Park 
Service is known to be using biobased chain and cable lubricants at 
some of its parks. Thus, there is a need for chain and cable 
lubricants. Designation of ``chain and cable lubricants'' will promote 
the use of biobased products, furthering the objectives of this 
program.
    An analysis of the environmental and human health benefits and the 
life-cycle costs of biobased chain and cable lubricants was performed 
for three of the products using the BEES analytical tool. The impact 
values for these three lubricants are presented in Table 1a. The 
environmental performance scores are presented in Table 1b and in 
Figure 1.

                             Table 1a--Impact Values for Chain and Cable Lubricants
----------------------------------------------------------------------------------------------------------------
     Environmental impact area                  Units                Sample A        Sample B        Sample C
----------------------------------------------------------------------------------------------------------------
Acidification......................  millimoles of hydrogen ion            7,210           6,470           5,130
                                      equivalents.
Criteria Air Pollutants............  micro Disability-Adjusted             0.532           0.467           0.840
                                      Life Years.
Ecological Toxicity................  grams of 2,4-dichloro-                 77.1            69.7           1,950
                                      phenoxy-acetic acid.
Eutrophication.....................  grams of nitrogen                       105            94.6             246
                                      equivalent.
Fossil Fuel Depletion..............  megajoules of surplus                  43.6            39.9            83.6
                                      energy.
Global Warming.....................  grams of carbon dioxide               9,710           8,660          29,500
                                      equivalents.
Habitat Alteration.................  threatened and endangered                 0               0               0
                                      species count.
Human Health.......................  grams of toluene equivalent          61,500          54,800         316,000
Indoor Air.........................  grams of total volatile                   0               0               0
                                      organic compounds.
Ozone Depletion....................  grams of chloroflouro-             1.15E-07        9.69E-08        1.30E-04
                                      carbon-11 equivalents.
Smog...............................  grams of nitrogen oxide                 124             112            95.9
                                      equivalents.
Water Intake.......................  liters of water............           1,430           1,290           6,530
----------------------------------------------------------------------------------------------------------------
Functional Unit...............................................1 gallon.
----------------------------------------------------------------------------------------------------------------


                    Table 1b--Environmental Performance Scores for Chain and Cable Lubricants
----------------------------------------------------------------------------------------------------------------
                    Environmental impact area                        Sample A        Sample B        Sample C
----------------------------------------------------------------------------------------------------------------
Total Environmental Performance Score \1\.......................          0.0674          0.0606          0.4202
----------------------------------------------------------------------------------------------------------------
    Acidification (5%)..........................................          0.0000          0.0000          0.0000
    Criteria Air Pollutants (6%)................................          0.0002          0.0001          0.0003
    Ecological Toxicity (11%)...................................          0.0104          0.0094          0.2630
    Eutrophication (5%).........................................          0.0272          0.0246          0.0640
    Fossil Fuel Depletion (5%)..................................          0.0062          0.0056          0.0118
    Global Warming (16%)........................................          0.0061          0.0054          0.0184
    Habitat Alteration (16%)....................................          0.0000          0.0000          0.0000
    Human Health (11%)..........................................          0.0043          0.0038          0.0219

[[Page 63306]]

 
    Indoor Air (11%)............................................          0.0000          0.0000          0.0000
    Ozone Depletion (5%)........................................          0.0000          0.0000          0.0000
    Smog (6%)...................................................          0.0049          0.0044          0.0038
    Water Intake (3%)...........................................          0.0081          0.0073          0.0370
----------------------------------------------------------------------------------------------------------------
Economic Performance (Life-cycle Costs ($)) \2\.................         10.17           13.78           20.20
                                                                 -----------------------------------------------
    First Cost..................................................         10.17           13.78           20.20
    Future Cost (3.9%)..........................................      (\3\)           (\3\)           (\3\)
----------------------------------------------------------------------------------------------------------------
Functional Unit.................................................                     1 gallon.
----------------------------------------------------------------------------------------------------------------
\1\ Numbers in parentheses indicate weighting factor.
\2\ Costs are per functional unit.
\3\ For this item, no significant/quantifiable performance or durability differences were identified among
  competing alternative products. Therefore, future costs were not calculated.

  [GRAPHIC] [TIFF OMITTED] TP23OC08.000
  
    As seen in Table 1b, for the analyzed chain and cable lubricants, 
the total environmental performance score ranges from 0.0606 to 0.4202 
points per gallon of product and the life-cycle costs range from $10.17 
to $20.20 (present value dollars) per gallon of product.
    When evaluating the environmental performance scores presented in 
Table 1b, as well as in the subsequent tables presented in this 
preamble, it should be noted that comparisons of the environmental 
performance scores are valid only among products within a designated 
item. Thus, comparisons of the scores presented in Table 1b and the 
scores presented in tables for other proposed designated items are not 
meaningful. On the other hand, one can compare the impact values 
reported in Table 1a with those in the other, corresponding impact 
value tables. But such a comparison would only be useful if the 
compared products would be used as substitutes for each other.
    The numbers in parentheses following each of the 12 environmental 
impacts listed in the tables presenting the environmental performance 
scores in this preamble indicate weighting factors. The weighting 
factors represent the relative importance of the 12 environmental 
parameters, including human health impacts, which contribute to the 
BEES environmental performance score. They are derived from lists of 
the relative importance of these parameters developed by the EPA

[[Page 63307]]

Science Advisory Board for the purpose of advising EPA as to how best 
to allocate its limited resources among environmental impact areas. 
Note that a lower environmental performance score is better than a 
higher score.
    Life-cycle costs presented in the tables in this preamble are per 
the appropriate functional unit for the proposed designated item. 
Future costs are discounted to present value using the OMB discount 
rate of 3.9 percent.
    Present value dollars presented in this preamble represent the sum 
of all costs associated with a product over a fixed period of time, 
including any applicable costs for purchase, installation, replacement, 
operation, maintenance and repair, and disposal. Present value dollars 
presented in th