Designation of Biobased Items for Federal Procurement, 71492-71512 [2010-29191]

Agencies

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

[Federal Register Volume 75, Number 225 (Tuesday, November 23, 2010)]
[Proposed Rules]
[Pages 71492-71512]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29191]



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Part II





Department of Agriculture





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Office of Energy Policy and New Uses



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7 CFR Part 2902



Designation of Biobased Items for Federal Procurement; Proposed Rule

Federal Register / Vol. 75 , No. 225 / Tuesday, November 23, 2010 / 
Proposed Rules

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DEPARTMENT OF AGRICULTURE

Office of Energy Policy and New Uses

7 CFR Part 2902

RIN 0503-AA36


Designation of Biobased Items for Federal Procurement

AGENCY: Departmental Management, 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 (Guidelines) to add 14 sections that will designate the 
following items within which biobased products would be afforded 
Federal procurement preference: Animal repellents; bath products; 
bioremediation materials; compost activators and accelerators; concrete 
and asphalt cleaners; cuts, burns, and abrasions ointments; dishwashing 
products; erosion control materials; floor cleaners and protectors; 
hair care products; interior paints and coatings; oven and grill 
cleaners; slide way lubricants; and thermal shipping containers. USDA 
is also proposing minimum biobased contents for each of these items.

DATES: USDA will accept public comments on this proposed rule until 
January 24, 2011.

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-AA36. 
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. Direct your comments 
to Docket ID No. OPPM-2010-0002.
     E-mail: biopreferred@usda.gov. Include RIN number 0503-
AA36 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 Federal biobased 
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.
    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.
    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

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and to recommend, where appropriate, the minimum level of biobased 
content to be contained in the procured products.
    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 ``thermal 
shipping containers,'' some containers are designed as durable products 
that can be re-used over long periods of time. Such containers might be 
used, for example, in the trucking industry when trucks are dedicated 
to shipping the same types of products on a regular basis. Other 
thermal shipping containers may be non-durable, or intended for only a 
one-time use. These containers might be used to ship small quantities 
of perishable fruits or vegetables to consumers who would then dispose 
of the container. Where such subgroups exist, USDA intends to create 
subcategories. Thus, for example, for the item ``thermal shipping 
containers,'' USDA has determined it is reasonable to create a 
``durable thermal shipping container'' subcategory and a ``non-durable 
thermal shipping container'' subcategory. Where structural integrity 
may be a key characteristic of a durable thermal shipping container, 
disposal concerns are a key characteristic of a non-durable thermal 
shipping container. In sum, USDA looks at the products within each item 
category to evaluate whether there are subgroups of products within the 
item that have different characteristics or that meet different 
performance specifications and, where USDA finds these types of 
differences, 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 thermal shipping containers are required to meet, 
but it may have information on only one type of container. 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.
    Within today's proposed rule, USDA is proposing to subcategorize 
two of the items being proposed for designation. The first item is hair 
care products and the proposed subcategories are shampoo products and 
conditioner products. The second item is thermal shipping containers 
and the proposed subcategories are durable and non-durable thermal 
shipping containers.
    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 volunteered 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 six tested 
products within an item being proposed for designation today are 22, 
28, 82, 98, 100, and 100 percent. Because this is a very wide range, 
and because there is a significant gap in the data between the 28 
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 22 or 28 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. 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 or 
subcategory 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 designated item are identified and tested. In 
today's proposed rule, the minimum biobased contents for both 
subcategories under the thermal shipping containers designated item are 
based on a single tested product. Given that only three biobased 
products have been identified in this item, and only one manufacturer 
of products within each subcategory supplied a sample for testing, USDA 
believes it is reasonable to set minimum biobased contents for these 
subcategories based on the single data point for each subcategory.
    Where USDA receives additional biobased content test data for 
products within these proposed items and subcategories during the 
public comment period, USDA will take that information into 
consideration when establishing the minimum biobased content when the 
items and subcategories 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. In situations where it 
believes

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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 two items for preferred procurement 
for which there may be overlap with an EPA-designated recovered content 
product. The first item is interior paints and coatings, which may 
overlap with the EPA-designated recovered content products 
``reprocessed latex paints'' and ``consolidated latex paints.'' The 
second item is slide way 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 products 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 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 EPA's Design for the 
Environment (DfE) program. Both the Green Seal standards and the DfE 
program identify chemicals of concern in cleaning products. These 
include zinc and other metals, formaldehyde, ammonia, alkyl phenol 
ethoxylates, ethylene glycol, and volatile organic compounds. In 
addition, both require that cleaning products have neutral or less 
caustic pH.
    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 designated 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 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

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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 (concrete and asphalt cleaners, dishwashing detergent, floor 
cleaners and protectors, and hair care products) are available through 
the AbilityOne Program. While there is no specific product within these 
items identified in the AbilityOne online catalog as being a biobased 
product, it is possible that such 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.
    In the preamble to the first six items designated for preferred 
procurement (71 FR 13686, March 16, 2006), USDA stated that it planned 
to identify approximately 10 items in each future rulemaking. In an 
effort to finalize the designation of more items in a shorter time 
period, USDA now plans to increase the number of items in each 
rulemaking, whenever possible. Thus, today's proposed rulemaking would 
designate 14 items for preferred procurement.
    USDA has developed a preliminary list of items for future 
designation and has posted this preliminary list 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 and 
subcategories for preferred procurement: Animal repellents; bath 
products; bioremediation materials; compost activators and 
accelerators; concrete and asphalt cleaners; cuts, burns, and abrasions 
ointments; dishwashing products; erosion control materials; floor 
cleaners and protectors; hair care products, including shampoos and 
conditioners as subcategories; interior paints and coatings; oven and 
grill cleaners; slide way lubricants; and thermal shipping containers, 
including durable and non-durable thermal shipping containers as 
subcategories. USDA is also proposing minimum biobased content for each 
of these items and subcategories (see Section IV.C). Lastly, except for 
thermal shipping containers, USDA is proposing a date by which Federal 
agencies must incorporate these designated items into their procurement 
specifications (see Section IV.D). USDA is proposing to defer the 
preference compliance date for biobased thermal shipping containers 
until two or more manufacturers of these containers have been 
identified.
    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 and vendors 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

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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 and its effect on 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 procurement 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 and subcategories, 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. Two of the items being proposed for designation (interior paints 
and coatings and slide way lubricants) 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. Several items (e.g., animal repellents, bath products, concrete 
and asphalt cleaners, dishwashing products, floor cleaners and 
protectors, oven and grill cleaners, and hair care products) have wide 
ranges of tested biobased contents. For the reasons discussed later in 
this preamble, USDA is proposing a minimum biobased content 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 (TSD), ``Technical Support 
for Proposed Rule--Round 7 Designated Items,'' which is available on 
the BioPreferred Web site. The TSD 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 7 
Designation under the Proposed Regulations section. This will bring you 
to the link to the TSD.

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

[[Page 71497]]

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 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 7 designated items 
analyzed using the BEES analytical tool can be found in ``Technical 
Support for Proposed Rule--Round 7 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, 
including the Defense Logistics Agency (DLA), 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 sources 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 from 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 volunteered 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 expected that 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, though this will 
generally occur once other items with high biobased content and two or 
more producers are first designated. However, USDA has also determined 
that in such situations it is appropriate to defer the

[[Page 71498]]

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 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 and subcategories for the preferred procurement 
program: Animal repellents; bath products; bioremediation materials; 
compost activators and accelerators; concrete and asphalt cleaners; 
cuts, burns, and abrasions ointments; dishwashing products; erosion 
control materials; floor cleaners and protectors; hair care products, 
including shampoos and conditioners as subcategories; interior paints 
and coatings; oven and grill cleaners; slide way lubricants; and 
thermal shipping containers, including durable and non-durable thermal 
shipping containers as subcategories. 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, two items may 
overlap with EPA-designated recovered content products. The first item 
is interior paints and coatings, which may overlap with the EPA-
designated recovered content products ``Reprocessed Latex Paints'' and 
``Consolidated Latex Paints.'' The second item is slide way lubricants, 
which may overlap with the EPA-designated recovered content ``Re-
refined Lubricating Oils.''
    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 exempt from the biobased procurement 
preference are military equipment, defined as any product or system 
designed or procured for combat or combat-related missions, and 
spacecraft systems and launch support equipment. However, 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 cleaning the interior 
of a non-combat office building on a military base, the floor cleaners 
and protectors the contractor purchases and uses in the office building 
should be biobased. 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 the relevant contract, where 
contractors have any questions 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.
    Each of the proposed designated items and their subcategories are 
discussed in the following sections.

[[Page 71499]]

1. Animal Repellents (Minimum Biobased Content 79 Percent) \1\
---------------------------------------------------------------------------

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

    Animal repellents are products used to aid in deterring animals 
that cause destruction to plants and/or property.
    USDA identified 29 manufacturers and suppliers of 109 animal 
repellents. These 29 manufacturers and suppliers do not necessarily 
include all manufacturers of animal repellents, 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. 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 performance are 
identified for this item, USDA will provide such information on the 
BioPreferred Web site.
    USDA contacted procurement officials with various policy-making and 
procuring agencies in an effort to gather information on the purchases 
of animal repellents, as well as information on products within the 
other 13 items proposed for designation today. These agencies included 
GSA, several offices within the DLA, OFEE, USDA Departmental 
Administration, the National Park Service, EPA, a Department of Energy 
laboratory, and OMB. Communications with these Federal officials led to 
the conclusion that obtaining current item statistics and specific 
potential markets within the Federal government for biobased products 
within the 14 proposed designated items is not possible at this time.
    Most of the contacted officials reported that procurement data are 
appropriately reported in higher level groupings of Federal Supply 
Codes for materials and supplies, which is higher level coding 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 TSD 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 leads to less accurate data on purchases of specific products.
    USDA also investigated the Web site FEDBIZOPPS.gov, a site which 
lists Federal contract purchase opportunities and awards greater than 
$25,000. The information provided on this Web site, however, is for 
broad categories of services and 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 animal 
repellents purchased by procuring agencies. However, many Federal 
agencies routinely procure such products for use in animal control and 
related services involving the use of such products. On this basis, 
USDA reaches the conclusion that the government has a need for animal 
repellents and for services that use these products. Designation of 
animal repellents will promote the use of biobased products, furthering 
the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on eight animal repellents. Analyses of the environmental and 
human health benefits and the life-cycle costs of biobased animal 
repellents were performed for three of the products using the BEES 
analytical tool. The results of those analyses are presented in the TSD 
for the Round 7 items, which can be found on the BioPreferred Web site.
2. Bath Products (Minimum Biobased Content 61 Percent)
    Bath products are personal hygiene products, including soaps and 
other cleansers for the body. These products are generally bar soaps, 
liquids, or gels that are referred to as body washes, body shampoos, or 
cleansing lotions.
    USDA identified 369 manufacturers and suppliers of 888 bath 
products. These 369 manufacturers and suppliers do not necessarily 
include all manufacturers of bath products, 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 four 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 four test methods identified by the 
manufacturers of products within this item are:
    Test Methods:
     ASTM International D-130 Standard Test Method for 
corrosiveness to copper from petroleum products by copper strip test;
     ASTM International D-665 Standard Test Method for rust-
preventing characteristics of inhibited mineral oil in the presence of 
water;
     ISO 32 Calibration in analytical chemistry and use of 
certified reference materials; and
     Vickers I-286-S Tests for pump wear.
    USDA attempted to gather data on the potential market for bath 
products within the Federal government as discussed in the section on 
animal repellents. These attempts were largely unsuccessful. However, 
Federal agencies routinely procure such products and contract for 
lodging and health care related services involving the use of such 
products. On this basis, USDA concludes that the government has a need 
for bath products and for services that use bath products. Designation 
of bath products will promote the use of biobased products, furthering 
the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on 101 bath products. Analyses of the environmental and human 
health benefits and the life-cycle costs of biobased bath products were 
performed for three of the products using the BEES analytical tool. The 
results of those analyses are presented in the TSD for the Round 7 
items, which can be found on the BioPreferred Web site.
3. Bioremediation Materials (Minimum Biobased Content 86 Percent)
    Bioremediation materials are dry or liquid solutions used to clean 
oil, fuel, and other hazardous spill sites. They do not include sorbent 
materials, but may include bacteria or other microbes.
    USDA identified 31 manufacturers and suppliers of 53 bioremediation 
materials. The 31 manufacturers and suppliers do not necessarily 
include all manufacturers and suppliers of biobased bioremediation 
materials, merely those identified during USDA information

[[Page 71500]]

gathering activities. Information supplied by these manufacturers and 
suppliers 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 the 
manufacturers of products within this item are:
    Test Methods:
     American Type Culture Collection Biosafety Level 1 minimal 
potential for causing diseases in humans, plants, animals and aquatic 
life; and
     California Air Resources Board Method 310 VOCs.
    USDA attempted to gather data on the potential market for 
bioremediation materials within the Federal government as discussed in 
the section on animal repellents. These attempts were largely 
unsuccessful. However, many Federal agencies own residential and office 
buildings and routinely perform, or procure contract services to 
perform, the types of maintenance activities that would use these 
products. Thus, they have a need for bioremediation materials and for 
services that require the use of bioremediation materials. Designation 
of bioremediation materials will promote the use of biobased products, 
furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on 11 bioremediation materials. An analysis of the 
environmental and human health benefits and the life-cycle costs of 
biobased bioremediation materials 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 7 items, which can be found on the 
BioPreferred Web site.
4. Compost Activators and Accelerators (Minimum Biobased Content 95 
Percent)
    Compost activators and accelerators are products designed to be 
applied to compost piles to aid in speeding up the composting process 
and to ensure successful compost that is ready for consumer use. They 
are available in either liquid or powder forms.
    USDA identified 19 manufacturers and suppliers of 32 compost 
activators and accelerators. The 19 manufacturers and suppliers do not 
necessarily include all manufacturers and suppliers of biobased compost 
activators and accelerators, 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. 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, 
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 compost 
activator and accelerator products within the Federal government as 
discussed in the section on animal repellents. These attempts were 
largely unsuccessful. However, Federal agencies routinely perform, or 
procure contract services to perform, the types of composting 
activities that would use these products. Thus, they have a need for 
compost activators and accelerators and for services that require the 
use of compost activators and accelerators. Designation of compost 
activators and accelerators will promote the use of biobased products, 
furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on five compost activators and accelerators. An analysis of 
the environmental and human health benefits and the life-cycle costs of 
biobased compost activator and accelerator was performed for one of the 
products using the BEES analytical tool. The results of that analysis 
are pre