Designation of Biobased Items for Federal Procurement, 6796-6812 [2010-2651]

Agencies

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

[Federal Register Volume 75, Number 27 (Wednesday, February 10, 2010)]
[Proposed Rules]
[Pages 6796-6812]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2651]



[[Page 6795]]

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

Part II





Department of Agriculture





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



Office of Energy Policy and New Uses



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



7 CFR Part 2902



Designation of Biobased Items for Federal Procurement; Proposed Rule

Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / 
Proposed Rules

[[Page 6796]]


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

DEPARTMENT OF AGRICULTURE

Office of Energy Policy and New Uses

7 CFR Part 2902

RIN 0503-AA34


Designation of Biobased Items for Federal Procurement

AGENCY: Departmental Management, USDA.

ACTION: Notice of Proposed Rulemaking.

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

SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to 
amend the Guidelines for Designating Biobased Products for Federal 
Procurement (Guidelines) to add nine sections that will designate the 
following items within which biobased products would be afforded 
Federal procurement preference: Disposable tableware; expanded 
polystyrene foam recycling products; heat transfer fluids; ink removers 
and cleaners; mulch and compost materials; multipurpose lubricants; 
office paper; topical pain relief products; and turbine drip oils. USDA 
is also proposing minimum biobased contents for each of these items.

DATES: USDA will accept public comments on this proposed rule until 
April 12, 2010.

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-AA34. 
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-
AA34 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: Ron Buckhalt, USDA, Office of Procurement and Property 
Management, Room 361, Reporters Building, 300 7th St., SW., Washington, 
DC 20024.
     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) 690-0942 (TTY).

FOR FURTHER INFORMATION CONTACT: Ron Buckhalt, USDA, Office of 
Procurement and Property Management, Room 361, Reporters Building, 300 
7th St., SW., Washington, DC 20024; e-mail: biopreferred@usda.gov; 
phone (202) 205-4008. Information regarding the preferred procurement 
program (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 13132: Federalism
    E. Unfunded Mandates Reform Act of 1995
    F. Executive Order 12372: Intergovernmental Review of Federal 
Programs
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Paperwork Reduction Act
    I. e-Government Act

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 provides for the preferred procurement of biobased 
products by Federal procuring agencies and is referred to hereafter in 
this Federal Register notice as the ``preferred procurement program.'' 
The definition of ``procuring agency'' in section 9002 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, as 
amended in section 9002 of the 2008 Farm Bill.
    The term ``item'' is used in the designation process to mean a 
generic grouping of specific products that perform a similar function, 
such as the various brands of crankcase oils or interior paints. 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 7 CFR Part 2902--
``Guidelines for Designating Biobased Products for Federal 
Procurement'' (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. In implementing the 
preferred procurement program for biobased products, procuring agencies 
should follow their procurement rules and Office of Federal Procurement 
Policy guidance on buying non-biobased products when biobased products 
exist and should document exceptions taken for price, performance, and 
availability.
    USDA recognizes that the performance needs for a given application 
are important criteria in making procurement decisions. USDA is not 
requiring procuring agencies to limit their choices to biobased 
products that fall under the items for designation in this proposed 
rule. Rather, the effect of the designation of the items is to require 
procuring agencies to determine their performance needs, determine 
whether there are qualified biobased products that fall under the 
designated items that meet the reasonable performance standards for 
those needs, and purchase such qualified biobased products to the 
maximum extent practicable as required by section 9002 of the 2002 Farm 
Bill.
    Section 9002(a)(3)(B) 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.

[[Page 6797]]

    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 put a notice of this action on the 
BioPreferred Web site.
    Subcategorization. Most of the items USDA is considering for 
designation for preferred procurement cover a wide range of products. 
For some items, there are subgroups of products within the item that 
meet different requirements, uses and/or different performance 
specifications. For example, within the item category ``hand cleaners 
and sanitizers,'' products that are used in medical offices may be 
required to meet performance specifications for sanitizing, while other 
products that are intended for general purpose hand washing may not 
need to meet these specifications. Where such subgroups exist, USDA 
intends to create subcategories. Thus, 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 category to evaluate whether there are 
subgroups of products within the item that meet different performance 
specifications and, where USDA finds this type of difference, it 
intends to create subcategories with the minimum biobased content based 
on the tested products within the subcategory.
    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 
information on only 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. Once USDA has received 
sufficient additional information to justify the designation of a 
subcategory, the subcategory will be designated through the proposed 
and final rulemaking process.
    USDA is not proposing to subcategorize any of the items being 
proposed for designation in today's action. However, public comments 
and additional data are being requested for several of the items and 
subcategories may be created in a future proposed rulemaking.
    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. Because the submission of product samples 
for biobased content testing is on a strictly voluntary basis, USDA was 
able to obtain samples only from those manufacturers who volunteer to 
invest the resources required to submit the samples.
    In addition to considering the biobased content test data for each 
item, USDA also considers other factors including product performance 
information. USDA evaluates this information to determine whether some 
products that may have a lower biobased content also have unique 
performance or applicability attributes that would justify setting the 
minimum biobased content at a level that would include these products. 
For example, a lubricant product that has a lower biobased content than 
others within an item but is formulated to perform over a wider 
temperature range than the other products may be more desirable to 
Federal agencies. Thus, it would be beneficial to set the minimum 
biobased content for the item at a level that would include the product 
with superior performance features.
    USDA also considers the overall range of the tested biobased 
contents within an item, groupings of similar values, and breaks 
(significant gaps between two groups of values) in the biobased content 
test data array. For example, the biobased contents of five tested 
products within an item being proposed for designation today are 5, 22, 
31, 82, and 85 percent. Because this is a very wide range, and because 
there is a significant gap in the data between the 31 percent biobased 
product and the 82 percent biobased product, USDA reviewed the product 
literature to determine whether subcategories could be created within 
this item. USDA found that the available product information did not 
justify subcategorization. Further, USDA did not find any performance 
claims that would justify setting the minimum biobased content based on 
the 5, 22, or 31 percent biobased content products. Thus, USDA is 
proposing to set the minimum biobased content for this item based on 
the product with a tested biobased content of 82 percent. USDA believes 
that this evaluation process allows it to establish minimum biobased 
contents based 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, in some cases, USDA has been able to obtain biobased 
content data for only a single product within a designated item because 
only one manufacturer volunteered to supply a sample for testing. As 
USDA obtains additional data on the biobased contents for products 
within these designated items and their subcategories, USDA will 
evaluate whether the minimum biobased content for a designated item 
will be revised. Where future revisions of established minimum biobased 
contents are justified, such revisions will be announced in a proposed 
rulemaking with an opportunity for public comment prior to finalizing 
the rulemaking.
    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 designated item are identified and tested. In 
today's proposed rule, the minimum biobased contents for one of the 
designated items (``expandable polystyrene foam recycling products'') 
is based on a single tested product. Given that only two biobased 
products have been identified in this item, and only one manufacturer 
supplied a sample for testing, USDA believes it is reasonable to set a 
minimum biobased content for this item based on the single data point.
    Where USDA receives additional biobased content test data for 
products within any of 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

[[Page 6798]]

materials. In situations where it believes there may be an overlap, 
USDA is asking manufacturers of qualifying biobased products to make 
additional product and performance information available to Federal 
agencies conducting market research 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. 
Manufacturers are asked to provide information highlighting the 
sustainable features of their biobased products and 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 also may ask manufacturers for information 
on a product's biobased content and its profile against environmental 
and health measures and life-cycle costs (the ASTM Standard D7075, 
``Standard Practice for Evaluating and Reporting Environmental 
Performance of Biobased Products,'' or the Building for Environmental 
and Economic Sustainability (BEES) analysis for evaluating and 
reporting on environmental performance of biobased products). Federal 
agencies may then use this information to make purchasing decisions 
based on the sustainability features of the products. Detailed 
information on ASTM Standard D7075, and other ASTM standards, can be 
found on ASTM's Web site at https://www.astm.org. Information on the 
BEES analytical tool can be found on the Web site https://www.bfrl.nist.gov/oae/software/bees.html.
    Section 6002 of RCRA requires a procuring agency procuring an item 
designated by EPA generally to procure such an item 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 reasonable price, availability, and performance 
considerations.
    This proposed rule designates three items for preferred procurement 
for which there may also be an EPA-designated recovered content 
product. The first item is mulch and compost materials, which are also 
EPA-designated recovered content products ``hydraulic mulch products'' 
and ``compost materials'' under the ``landscaping products'' category 
of products. The second item is multipurpose lubricants, which, 
depending on how they are used, may be an EPA-designated recovered 
content product ``re-refined lubricating oils.'' The third item is 
office paper, which is an EPA-designated recovered content product 
under the ``paper and paper products'' category of products. EPA 
provides recovered materials content recommendations for these 
recovered content products in a Recovered Materials Advisory Notice 
(RMAN I). The RMAN recommendations for these CPG products can be found 
by accessing EPA's Web site https://www.epa.gov/epaoswer/non-hw/procure/products.htm and then clicking on the appropriate product name.
    Federal Government Purchase of Sustainable Products. The Federal 
government's sustainable purchasing program includes the following 
three statutory preference programs for designated products: the 
BioPreferred Program, the Environmental Protection Agency's 
Comprehensive Procurement Guideline for products containing recovered 
materials, and the Environmentally Preferable Purchasing 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 for institutional 
cleaning products or that the products have been reformulated in 
accordance with recommendations from the U.S. EPA's Design for the 
Environment (DfE) program. Both the Green Seal standards and the DfE 
program identify chemicals of concern in cleaning products. These 
include zinc and other metals, formaldehyde, ammonia, alkyl phenol 
ethoxylates, ethylene glycol ethers, and volatile organic compounds. In 
addition, both require that cleaning products have neutral or less 
caustic pH.
    In contrast, some biobased products may be more environmentally 
preferable 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. Fossil carbon is derived from non-renewable sources 
(typically fossil fuels such as coal and oil), whereas renewable 
biomass carbon is derived from renewable sources (biomass). Qualifying 
biobased products offer the user the opportunity to manage the carbon 
cycle and reduce the introduction of new fossil carbon into 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

[[Page 6799]]

of the ASTM D7075, or the comparable BEES analysis which examines 12 
different environmental parameters, including human health. Therefore, 
USDA encourages Federal procurement agencies to consider that USDA has 
already examined all available information on the environmental and 
human health effects of biopreferred 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 online catalog (https://www.abilityone.gov) indicated that four of the items being proposed 
today (``disposable tableware,'' ``mulch and compost materials,'' 
``multipurpose lubricants,'' and ``office paper'') 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, it is possible that biobased products are available 
or will be available in the future. Also, because additional categories 
of products are frequently added to the 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.
    Outreach. To augment its own research, USDA consults with industry 
and Federal stakeholders to the preferred procurement program during 
the development of the rulemaking packages for the designation of 
items. USDA consults with stakeholders to gather information used in 
determining the order of item designation and in identifying: 
Manufacturers producing and marketing products that fall within an item 
proposed for designation; performance standards used by Federal 
agencies evaluating products to be procured; and warranty information 
used by manufacturers of end user equipment and other products with 
regard to biobased products.
    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. Based on these results, USDA 
will then propose new items for designation for preferred procurement.
    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. In response to comments from other 
Federal agencies, USDA intends to give increased priority to those 
items that contain the highest biobased content. In addition, as the 
program matures, manufacturers of biobased products within some 
industry segments have become more responsive to USDA's requests for 
technical information than those in other segments. Thus, items with 
high biobased content and for which sufficient technical information 
can be obtained quickly may be added or moved up on the prioritization 
list. USDA intends to update the list of items for future designation 
on the Biopreferred Web site every six months, or more often if 
significant changes are made to the list.

III. Summary of Today's Proposed Rule

    USDA is proposing to designate the following items for preferred 
procurement: Disposable tableware; expanded polystyrene (EPS) foam 
recycling products; heat transfer fluids; ink removers and cleaners; 
mulch and compost materials; multipurpose lubricants; office paper; 
topical pain relief products; and turbine drip oils. 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 understanding with manufacturers 
not to publish their names in conjunction with specific product data 
published in the Federal Register when designating items. This 
understanding 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 being proposed for designation today 
may affect original equipment manufacturers' (OEMs) warranties for 
equipment in which the items are used. For example, the manufacturer of 
a piece of equipment that requires lubrication typically includes a 
list of recommended lubricants in the owner/operator's manual that 
accompanies the equipment when purchased. If the purchaser of the 
equipment uses a lubricant (including a biobased lubricant) that is not 
among the lubricants recommended by the equipment manufacturer, the 
manufacturer may cite that as a reason not to honor the warranty on the 
equipment. At this time, USDA does not have information available as to 
the extent that OEMs have included, or will include, biobased products 
among their recommended lubricants (or other similar operating 
components). This does not necessarily mean that use of biobased 
products will void warranties, only that USDA does not currently have 
such information. USDA is requesting comments and information on this 
topic, but cannot be held responsible if damage were to occur. 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 are accepted and 
recommended for use. Whenever manufacturers of biobased products find 
that existing performance standards for 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. In addition to outreach to biobased product manufacturers and 
Federal agencies, USDA will, as time and resources allow, work with 
OEMs on addressing any effect the use of biobased products may have on 
their warranties. If, in spite of these efforts, there is insufficient 
information regarding the use of a biobased product

[[Page 6800]]

and its effect of warranties, 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. Updates to the BioPreferred Web site will occur 
whenever new information is submitted.
    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. Three items (``mulch and compost materials,'' ``multipurpose 
lubricants,'' and ``office paper'') may overlap with 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 informed sustainable procurement decisions. 
When possible, please provide appropriate documentation to support the 
environmental and human health attributes you describe.
    4. Some items (e.g., ``disposable tableware,'' ``heat transfer 
fluids,'' and ``ink removers and cleaners'') have wide ranges of tested 
biobased contents. For the reasons discussed later in this preamble, 
USDA is proposing minimum biobased content levels that would allow many 
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. As discussed above, the effect that the use of biobased products 
may have on original equipment manufacturers' warranties is uncertain. 
USDA requests comments and supporting information on any aspect of this 
issue.
    6. Today's proposed rule is expected to have both positive and 
negative impacts on individual businesses, including small businesses. 
USDA anticipates that the biobased preferred procurement program will 
provide additional opportunities for businesses and manufacturers to 
begin supplying products under the proposed designated biobased items 
to Federal agencies and their contractors. However, other businesses 
and manufacturers that supply only non-qualifying products and do not 
offer biobased alternatives may experience a decrease in demand from 
Federal agencies and their contractors. Because USDA has been unable to 
determine the number of businesses, including small businesses, that 
may be adversely affected by today's proposed rule, USDA requests 
comment on how many small entities may be affected by this rule and on 
the nature and extent of that effect.
    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 6 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 right side 
of the BioPreferred Web site's home page (https://www.biopreferred.gov). 
At the next screen, click on the Supporting Documentation link under 
Round 6 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 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 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 life-cycle 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

[[Page 6801]]

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 has obtained the necessary input information (on a 
voluntary basis) from manufacturers of biobased products and has used 
the BEES analytical tool to analyze individual products within each 
proposed item. The BEES analytical tool measures the environmental 
performance and the economic performance of a product. The 
environmental performance scores, impact values, and economic 
performance results for products within the Round 6 designated items 
analyzed using the BEES analytical tool can be found in ``Technical 
Support for Proposed Rule--Round 6 Designated Items,'' located on the 
BioPreferred Web site (https://www.biopreferred.gov).
    In addition to the BEES analytical tool, manufacturers wishing to 
make similar life-cycle information available may choose to use the 
ASTM Standard D7075 analysis. The ASTM Standard D7075 product analysis 
includes information on environmental performance, human health 
impacts, and economic performance. 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 the 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 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 volunteer 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 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 
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

[[Page 6802]]

them against program criteria established by USDA and by gathering 
information from other government agencies, private industry groups, 
and manufacturers. These evaluations begin by looking 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 a group of 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: Disposable 
tableware; EPS foam recycling products; heat transfer fluids; ink 
removers and cleaners; mulch and compost materials; multipurpose 
lubricants; office paper; topical pain relief products; and turbine 
drip oils. USDA has determined that each of these items meets the 
necessary statutory requirements--namely, that they are being produced 
with biobased products and that their procurement by procuring agencies 
will carry out the following objectives of section 9002:
     To increase demand for biobased products, which would in 
turn increase demand for agricultural commodities that can serve as 
feedstocks for the production of biobased products;
     To spur development of the industrial base through value-
added agricultural processing and manufacturing in rural communities; 
and
     To enhance the Nation's energy security by substituting 
biobased products for products derived from imported oil and natural 
gas.
    Further, USDA has sufficient information on these 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, three items being 
designated for preferred procurement may overlap with EPA-designated 
recovered content products. The first item is ``mulch and compost 
materials,'' which may overlap with the EPA-designated recovered 
content products ``hydraulic mulch products'' and ``compost materials'' 
under the ``landscaping products'' category of products. The second 
item is ``multipurpose lubricants,'' which, depending on how they are 
used, may overlap with the EPA-designated recovered content product 
``re-refined lubricating oils.'' The third item is ``office paper,'' 
which may overlap with the EPA-designated recovered content products 
under the ``paper and paper products'' category of products.
    For these items, USDA is requesting that information on qualifying 
biobased products be made available by their manufacturers to assist 
Federal agencies in determining if an overlap exists between the 
biobased products and the applicable EPA-designated recovered content 
products. USDA is requesting this 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. Products used in spacecraft systems and launch support 
applications and military equipment used in combat and combat-related 
applications are exempt from the biobased product procurement 
preference, but agencies may purchase biobased products wherever 
performance, availability and reasonable price indicates that such 
purchases are justified.
    Although each item in today's proposed rule would be exempt from 
the procurement preference requirement when used in spacecraft systems 
or launch support application or in military equipment used in combat 
and combat-related applications, this exemption does not extend to 
contractors performing work other than direct maintenance and support 
of the spacecraft or launch support equipment or combat or combat-
related missions. For example, if a contractor is painting the interior 
of a non-combat office building on a military base, the interior paint 
the contractor purchases and uses in the office building should be a 
biobased interior paint (provided it meets the specifications for the 
designated item ``interior paints and coatings''). 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 or launch 
applications. After reviewing the regulatory requirement and their 
contract, where a contractor has any question on the exemption, they 
should contact the cognizant contracting officer.
    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. Any changes to the current exemptions would be announced in 
a proposed rule amendment with an opportunity for public comment.
    The proposed designated items are discussed in the following 
sections.
1. Disposable Tableware (Minimum Biobased Content 72 Percent) \1\
---------------------------------------------------------------------------

    \1\ Additional information on the determination of minimum 
biobased contents is presented in Section IV.C of this preamble.
---------------------------------------------------------------------------

    Disposable tableware is one-time-use drink ware and dishware, 
including cups, plates, bowls, and serving platters used for dining.
    USDA identified 19 different manufacturers and suppliers of 65 
biobased disposable tableware products. These 19 manufacturers and 
suppliers do not necessarily include all manufacturers and suppliers of 
biobased disposable tableware, merely those identified during USDA 
information gathering activities. Relevant product information supplied 
by these manufacturers and suppliers indicates that these products are 
being used commercially. In addition, manufacturers and stakeholders 
identified two performance standards and one product certification (as 
shown below) used in evaluating products within this item. While there 
may be additional performance standards, as

[[Page 6803]]

well as test methods, product certifications, and other measures of 
performance applicable to products within this item, those identified 
by manufacturers of product within this item are:

Performance Standards

     ASTM D6400, ``Standard Specification for Compostable 
Plastics;'' and
     ASTM D6868, ``Standard Specification for Biodegradable 
Plastics Used as Coatings on Paper and Other Compostable Substrates.''

Product Certifications and Other Measures

     Biodegradable Products Institute certified compostable 
plastic products will biodegrade and compost satisfactorily in actively 
managed compost facilities.
    USDA contacted procurement officials with various policy-making and 
procuring agencies including GSA, several offices within the Defense 
Logistics Agency, 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 disposable tableware 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 
nine 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 disposable tableware purchased by 
procuring agencies. However, Federal agencies routinely procure such 
products and contract for food preparation services involving the use 
of such products. Thus, they have a need for disposable tableware and 
for services that use disposable tableware. Designation of ``disposable 
tableware'' 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 disposable tableware was performed for one 
of the products using the BEES analytical tool. The results of that 
analysis are presented in the TSD for the Round 6 items, which can be 
found on the BioPreferred Web site.
2. Expanded Polystyrene (EPS) Foam Recycling Products (Minimum Biobased 
Content 90 Percent)
    These are products formulated to dissolve EPS foam (examples would 
include foam coolers, hot drink cups, and flotation devices) to reduce 
the volume of recycled or discarded EPS foam items. The products are 
sprayed on the EPS foam, which is quickly dissolved into a concentrated 
material that can then be recycled or landfilled. The primary uses of 
these products are in recycling operations and construction/demolition 
projects.
    USDA identified two manufacturers and one supplier of two biobased 
EPS foam recycling products. These manufacturers and supplier do not 
necessarily include all manufacturers of biobased EPS foam recycling 
products, merely those identified during USDA information gathering 
activities. Information supplied by the manufacturers and supplier 
indicates that these products are being used commercially. However, 
manufacturers and stakeholders contacted by USDA did not identify any 
applicable performance standards, test methods, or other industry 
measures of performance against which these products have been tested. 
USDA points out that the lack of identified performance standards is 
not relevant to the designation of an item for preferred procurement 
because it is not one of the criteria section 9002 requires USDA to 
consider in order to designate an item for preferred procurement. If 
and when performance standards, test methods, product certifications, 
and other relevant measures of performance are identified for this 
item, USDA will provide such information on the BioPreferred Web site.
    USDA attempted to gather data on the potential market for biobased 
products within the Federal government using the procedure described in 
the section on ``disposable tableware.'' These attempts were largely 
unsuccessful. USDA is aware that products used for recycling EPS foam 
represent a developing application that will be working into the market 
and that there are many potential applications where Federal facilities 
could benefit from this technology. For example, at this time, there is 
a project on the Lake of the Ozarks (Corps of Engineers) to recycle EPS 
foam from boat docks to prevent the material from getting into the 
power generation plants. Thus, USDA believes that designation of ``EPS 
foam recycling products'' will promote the use of biobased products, 
furthering the objectives of this program.
    An analysis of the environmental and human health benefits and the 
life-cycle costs of biobased EPS foam recycling products was performed 
for one of the products using the BEES analytical tool. The results of 
that analysis are presented in the TSD for the Round 6 items, which can 
be found on the BioPreferred Web site.
3. Heat Transfer Fluids (Minimum Biobased Content 89 Percent)
    Heat transfer fluids are products with high thermal capacities used 
to facilitate the transfer of heat from one location to another, 
including coolants or refrigerants for use in HVAC applications, 
internal combustion engines, personal cooling devices, thermal energy 
storage, or other heating or cooling closed-loops.
    USDA identified five manufacturers and suppliers of six heat 
transfer fluids. These five manufacturers and suppliers do not 
necessarily include all manufacturers and suppliers of heat transfer 
fluids, merely those identified during USDA information gathering 
activities. Information supplied by these manufacturers and suppliers 
indicates that these products are being used commercially. However, 
manufacturers and stakeholders contacted by USDA did not identify any 
performance standards, test methods, or applicable industry measures of 
performance against which these products have been tested. As noted 
earlier in this preamble, the lack of identified performance standards 
is not relevant to the designation of an item for preferred procurement 
because it is not one of the criteria section 9002 requires USDA to 
consider in order to designate an item for preferred procurement. If 
and when performance standards, test methods, and other relevant 
measures of

[[Page 6804]]

performance are identified for this item, USDA will provide such 
information on the BioPreferred Web site.
    USDA attempted to gather data on the potential market for heat 
transfer fluids within the Federal government as discussed in the 
section on ``disposable tableware.'' These attempts were largely 
unsuccessful. However, most Federal agencies routinely perform, or 
procure services to perform, activities that use these products. Thus, 
they have a need for heat transfer fluids and for services that require 
the use of heat transfer fluids. Designation of ``heat transfer 
fluids'' will promote the use of biobased products, furthering the 
objectives of this program.
    An analysis of the environmental and human health benefits and the 
life-cycle costs of biobased heat transfer fluids was performed for two 
of the products using the BEES analytical tool. The results of those 
analyses are presented in the TSD for the Round 6 items, which can be 
found on the BioPreferred Web site.
4. Ink Removers and Cleaners (Minimum Biobased Content 79 Percent)
    Ink removers and cleaners are chemicals used for removing ink, 
haze, glaze, and other residual ink contaminants from ink presses, 
rollers, and other equipment used in the printing and textile 
industries.
    USDA identified nine manufacturers and suppliers of 15 biobased ink 
removers and cleaners. These nine manufacturers and suppliers do not 
necessarily include all manufacturers and suppliers of biobased ink 
removers and cleaners, merely those identified during USDA information 
gathering activities. Information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. 
However, manufacturers and stakeholders contacted by USDA did not 
identify any applicable performance standards, test methods, or other 
industry measures of performance against which these products have been 
tested. As noted earlier in this preamble, the lack of identified 
performance standards is not relevant to the designation of an item for 
preferred procurement because it is not one of the criteria section 
9002 requires USDA to consider in order to designate an item for 
preferred procurement. If and when performance standards, test methods, 
product certifications, and other relevant measures of performance are 
identified for this item, USDA will provide such information on the 
BioPreferred Web site.
    USDA attempted to gather data on the potential market for biobased 
products within the Federal government as discussed in the section on 
``disposable tableware.'' These attempts were largely unsuccessful. 
However, Federal agencies (e.g., Bureau of Engraving and Printing) have 
ink presses and similar equipment that would be cleaned with such 
products. In addition, such Federal agencies may contract for cleaning 
services that would use such products. Thus, they have a need for ink 
removers and cleaners and for services that require the use of ink 
removers and cleaners. Designation of ``ink removers and cleaners'' 
will promote the use of biobased products, furthering the objectives of 
this program.
    An analysis of the environmental and human health benefits and the 
life-cycle costs of biobased ink removers and cleaners was performed 
for one of the products using the BEES analytical tool. The results of 
that analysis are presented in the TSD for the Round 6 items, which can 
be found on the BioPreferred Web site.
5. Mulch and Compost Materials (Minimum Biobased Content 95 Percent)
    Mulch is a protective covering placed atop the soil, primarily to 
keep down weeds and to improve the appearance of landscaping. Compost 
is the aerobically decomposed remnants of organic materials used in 
gardening and agriculture as a soil amendment, and commercially by the 
landscaping and container nursery industries.
    USDA identified 67 manufacturers and suppliers of 232 mulch and 
compost materials. These 67 manufacturers and suppliers do not 
necessarily include all manufacturers of mulch and compost materials, 
merely those identified during USDA information gathering activities. 
Information supplied by the manufacturers and suppliers indicates that 
these products are being used commercially. In addition, manufacturers 
and stakeholders identified three test methods (as shown below) used in 
evaluating products within this item. While other test methods and 
measures of performance, as well as performance standards, applicable 
to products within this item may exist, the three test methods 
id