Designation of Biobased Items for Federal Procurement, 43808-43819 [2011-18478]

Download as PDF 43808 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations Constitutionally Protected Property Rights D. Executive Order 12988: Civil Justice Reform E. Executive Order 13132: Federalism F. Unfunded Mandates Reform Act of 1995 G. Executive Order 12372: Intergovernmental Review of Federal Programs H. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments I. Paperwork Reduction Act J. E-Government Act K. Congressional Review Act conducted by APHIS and the NPPO of Peru and appropriate mitigations have been implemented. * * * * * Done in Washington, DC, this 19th day of July 2011. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. 2011–18707 Filed 7–20–11; 4:15 pm] BILLING CODE 3410–34–P DEPARTMENT OF AGRICULTURE I. Authority Office of Energy Policy and New Uses 7 CFR Part 2902 RIN 0503–AA36 Designation of Biobased Items for Federal Procurement Departmental Management, USDA. ACTION: Final rule. II. Background AGENCY: The U.S. Department of Agriculture (USDA) is amending the Guidelines for Designating Biobased Products for Federal Procurement, to add 14 sections to designate items within which biobased products will be afforded Federal procurement preference, as provided for under section 9002 of the Farm Security and Rural Investment Act of 2002, as amended by the Food, Conservation, and Energy Act of 2008 (referred to in this document as ‘‘section 9002’’). USDA is also establishing minimum biobased contents for each of these items. DATES: This rule is effective August 22, 2011. 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 http://www.biopreferred.gov. SUPPLEMENTARY INFORMATION: The information presented in this preamble is organized as follows: emcdonald on DSK2BSOYB1PROD with RULES SUMMARY: I. Authority II. Background III. Summary of Changes IV. Discussion of Public Comments V. Regulatory Information A. Executive Order 12866: Regulatory Planning and Review B. Regulatory Flexibility Act (RFA) C. Executive Order 12630: Governmental Actions and Interference With VerDate Mar<15>2010 18:10 Jul 21, 2011 Jkt 223001 These items are designated 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’’). As part of the BioPreferred Program, USDA published, on November 23, 2010, a proposed rule in the Federal Register (FR) for the purpose of designating a total of 14 items for the preferred procurement of biobased products by Federal agencies (referred to hereafter in this FR notice as the ‘‘preferred procurement program’’). This proposed rule can be found at 75 FR 71492. This rulemaking is referred to in this preamble as Round 7 (RIN 0503– AA36). In the proposed rule, USDA proposed designating the following 14 items 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. Today’s final rule designates the proposed items within which biobased products will be afforded Federal procurement preference. USDA has determined that each of the items being designated under today’s rulemaking meets the necessary statutory requirements; that they are being produced with biobased products; and that their procurement will carry out the following objectives of section 9002: to improve demand for biobased products; to spur development of the industrial base through value-added agricultural PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 processing and manufacturing in rural communities; and to enhance the Nation’s energy security by substituting biobased products for products derived from imported oil and natural gas. When USDA designates by rulemaking an item (a generic grouping of products) for preferred procurement under the BioPreferred Program, manufacturers of all products under the umbrella of that item, that meet the requirements to qualify for preferred procurement, can claim that status for their products. To qualify for preferred procurement, a product must be within a designated item and must contain at least the minimum biobased content established for the designated item. When the designation of specific items is finalized, USDA will invite the manufacturers and vendors of these qualifying products to post information on the product, contacts, and performance testing on its BioPreferred Web site, http://www.biopreferred.gov. Procuring agencies will be able to utilize this Web site as one tool to determine the availability of qualifying biobased products under a designated item. Once USDA designates an item, procuring agencies are required generally to purchase biobased products within these designated items where the purchase price of the procurement item exceeds $10,000 or where the quantity of such items or of functionally equivalent items purchased over the preceding fiscal year equaled $10,000 or more. Subcategorization. Most of the items USDA is considering for designation for preferred procurement cover a wide range of products. For some items, there are subgroups of products within the item that meet different requirements, uses and/or different performance specifications. Where such subgroups exist, USDA intends to create subcategories within the designated items. 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 designation to create subcategories within an item. 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 E:\FR\FM\22JYR1.SGM 22JYR1 emcdonald on DSK2BSOYB1PROD with RULES Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 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 final rule, USDA has subcategorized three of the items being designated. The first item is hair care products and the subcategories are (1) shampoo products, and (2) conditioner products. The second item is interior paints and coatings and the subcategories are (1) interior latex and waterborne alkyd paints and coatings, and (2) interior oil-based and solventborne alkyd paints and coatings. The third item is thermal shipping containers and the subcategories are (1) durable thermal shipping containers, and (2) non-durable thermal shipping containers. Minimum Biobased Contents. The minimum biobased contents being established with today’s rulemaking are based on products for which USDA has biobased content test data. 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 public comments received on the proposed minimum biobased contents and product performance information. 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. 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. 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 VerDate Mar<15>2010 18:10 Jul 21, 2011 Jkt 223001 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 final 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. 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 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 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 43809 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 http:// www.astm.org. Information on the BEES analytical tool can be found on the Web site http://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 rerefined oil’’ has already been designated by EPA for that purpose, then the Federal agency must purchase the EPAdesignated 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 final rule designates one item for preferred procurement for which there may be overlap with an EPA-designated recovered content product. The interior latex and waterborne alkyd subcategory within the interior paints and coatings item may overlap with the EPA- E:\FR\FM\22JYR1.SGM 22JYR1 emcdonald on DSK2BSOYB1PROD with RULES 43810 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations designated recovered content products ‘‘reprocessed latex paints’’ and ‘‘consolidated latex paints.’’ 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 http://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 (VOC). 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 VerDate Mar<15>2010 18:10 Jul 21, 2011 Jkt 223001 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 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 JavitsWagner-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 (www.abilityone.gov) indicated that four of the items being designated 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 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 other items being designated 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 final rulemaking designates 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 E:\FR\FM\22JYR1.SGM 22JYR1 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations 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. emcdonald on DSK2BSOYB1PROD with RULES III. Summary of Changes As a result of the comments received on the proposed rule, USDA has made several changes in finalizing the proposed rule. These changes are summarized in the remainder of this section. A summary of each comment received, and USDA’s response to the comment, is presented in section IV. The definitions of three proposed items were revised to avoid potential overlap with previously designated items. The definition of the bath products designated item was revised to specifically exclude products marketed as hand cleaners and/or hand sanitizers. The definition of the concrete and asphalt cleaners designated item was revised to include only those products marketed for use in commercial or residential construction or industrial applications. The definition of the floor cleaners and protectors designated item was revised to include only those products marketed specifically for use on industrial, commercial, and/or residential flooring. The proposed item interior paints and coatings was subcategorized. The subcategories are (1) interior latex and waterborne alkyd paints and coatings, and (2) interior oil-based and solventborne alkyd paints and coatings. The discussion of potential overlap with the EPA recovered content product re-refined lubricating oil was removed from the slide way lubricants. IV. Discussion of Public Comments USDA solicited comments on the proposed rule for 60 days ending on January 24, 2011. USDA received comments from five commenters by that date. The comments were from three Federal government agencies and two biobased product manufacturers. In the remainder of this section, USDA first addresses two general comments that relate to the overall designation process. Comments related to the designation of specific items are presented next, followed by USDA’s response to those comments. General Comment: One commenter stated that the BioPreferred Web site might imply to some that the listed products have been tested and meet all Federal requirements, when the primary test of VerDate Mar<15>2010 18:10 Jul 21, 2011 Jkt 223001 concern is for biobased content. The commenter stated that, in numerous cases, the products have not been tested/evaluated for DoD applications. The commenter suggested that there should be some type of statement on the Web site explaining that the item type meets USDA requirements but not necessarily those of any other component of the Federal government. Response: USDA agrees with the commenter that the functional performance of biobased products is of great concern to procuring agencies and that such performance is not guaranteed as a part of the designation process. USDA attempts to gather performance information from biobased product manufacturers during the designation process, but does not have the statutory authority to require manufacturers to provide such information. The absence of industry standards listed in association with a catalog entry simply indicates that the company has elected not to provide any information about performance testing associated with their products. Purchasing officials interested in performance data associated with a specific product are encouraged to contact the listed contacts for further information. USDA will consider the feasibility of including a symbol in the catalog (when the performance standards record is null) so that purchasing officials can quickly see which products have testing standards associated with their products. New Product Category Comment: One commenter believes that it is important to have a product category designation for automotive motor oils. The commenter states that there are categories for 2-cycle engine oil, and bar and chain lubricant, which are typically petroleum-based products. The commenter believes there would be significant benefit in designating automotive motor oils as a product category in the next round. The commenter stated that this could lead to the creation of more effective and environmentally friendly motor oil from biobased materials. Response: USDA thanks the commenter for the recommendation and is willing to work with the commenter to obtain valid information regarding the potential for establishing a product category for automotive motor oils. USDA would be especially interested in obtaining information related to performance characteristics of biobased automotive motor oils, including documentation of successful performance testing by recognized testing organizations such as ASTM and SAE. PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 43811 Animal Repellents Comment: One commenter stated that Federal agencies are implementing integrated pest management (IPM) in place of the use of pesticides. The commenter recommends USDA address whether the use of biobased animal repellents is consistent with Federal IPM efforts. Response: USDA contacted Dr. Martin Draper, the National Program Leader— Plant Pathology, of USDA’s National Institute of Food and Agriculture to discuss whether the use of biobased animal repellents is consistent with Federal IPM programs. Dr. Draper stated that IPM encourages the use of diverse methods of mitigating pest pressures, in most cases reducing pesticide use. He further stated that biorational pesticides and biological controls would be welcome and encouraged within the constructs of IPM. He stated that IPM programs are focused on efficacious products and strategies that optimize economic advantage while reducing potential deleterious effects on the environment and human health and that if the products that can do that are biobased, all the better. He further stated that pest repellents would be included as a component of IPM if that was an appropriate strategy. According to Dr. Draper, exclusion, the best option in managing vertebrate pests, is impractical or illegal in some cases. In those cases, repellents become very important in the management of some very damaging pests. Dr. Draper concluded by saying that he did not see where the use of biobased animal repellents would be a conflict with IPM programs. Bath Products Comment: One commenter believes that the proposed designation of bath products overlaps with the previous designation of hand cleaners. The commenter stated that manufacturers and purchasers need clear guidance as to which biobased content level applies, as the recommended minimum biobased content level for hand cleaners is slightly higher than that proposed for bath products. The commenter further recommends that USDA provide a clear definition of bath products that distinguishes it from hand cleaners. Response: USDA does not believe that the designation of bath products overlaps significantly with the previous designation of hand cleaners and sanitizers. Hand cleaners and sanitizers are defined as products formulated exclusively for use as human hand personal care products. Bath products, as defined, are personal hygiene E:\FR\FM\22JYR1.SGM 22JYR1 43812 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations emcdonald on DSK2BSOYB1PROD with RULES products, including soaps and other cleansers. However, USDA does agree that there may be some confusion regarding these differences and has amended the definition of bath products to state that these exclude products that are specifically marketed as ‘‘hand cleaners’’ and/or ‘‘hand sanitizer’’ products. Bioremediation Materials and Compost Activators and Accelerators Comment: One commenter stated that the designation of bioremediation materials and compost activators could lead to unnecessary addition of biobased components to these products in order to qualify for Federal procurement preference. The commenter stated that a review of the Technical Support Document indicates that the overwhelming majority of the products identified within these two product categories consist of active biological microorganism cultures. The commenter further noted that some product descriptions also indicate that the product contains nutrients or organic materials. However, the active ingredient is typically a culture of microorganisms. Thus, according to the commenter, developing a formula for sale to the government by adding more biobased organic materials that simply dilute the microbiological active ingredient is a logical response to USDA’s contemplated biobased content minimum. The commenter stated that the result of a ‘‘successful’’ USDA designation in this area might be simply the wasting of biobased products into the compost pile or into soils being remediated. The commenter further stated that the addition of biobased organic materials would also increase the use of packaging materials, fuels, etc. for product transport, having a negative effect on the environment. The commenter also noted that neither of these product classes appears to have standardized tests to determine product effectiveness—which increases the difficulty to the government to avoid procurement of diluted products prepared to satisfy a biobased content mandate. The commenter recommends that the ‘‘bioremediation materials’’ product category and the ‘‘compost activators and accelerators’’ product category not be designated under the biobased procurement preference program. Response: USDA disagrees with the commenter’s recommendation that bioremediation materials and compost activators and accelerators not be included in the biobased procurement VerDate Mar<15>2010 18:10 Jul 21, 2011 Jkt 223001 preference program. Based on the information collected prior to proposing these items for designation, available products within these two items are almost universally high in biobased content. Also, because the microorganisms that are the active ingredients in the products would be counted as biobased content, reducing the percentage of the microorganisms in the product and increasing the biobased nutrient, or carrier, content would not increase the overall biobased content of a product. In addition, reformulating the product to include fewer microorganisms would tend to hurt the performance of the product. Thus, manufacturers would have no reason to add inactive biobased ingredients to increase the biobased content of the products. USDA held a meeting with the commenter to clarify the comments/ responses and explain the rationale for finalizing the designation of these two items, but did not make any changes in the final rule. Concrete and Asphalt Cleaners Comment: One commenter stated that the proposed designation of concrete and asphalt cleaners overlaps with the previously designated graffiti remover. The commenter believes that guidance is needed as to which biobased content applies, as the proposed minimum biobased content level for graffiti remover is significantly lower than that for the concrete and asphalt cleaners. The commenter further stated that concrete and asphalt cleaners should be clearly distinguished from graffiti remover. Response: USDA reviewed the product information collected on both the proposed concrete and asphalt cleaners item and the previously designated graffiti remover item to investigate clarifications that could be made to the definitions. Based on the product descriptions provided by manufacturers, USDA found that products within the proposed concrete and asphalt cleaners item were predominantly described as being intended for use in construction or industrial applications. Graffiti and grease remover products were generally described as being intended for use in janitorial and/or institutional applications. USDA has, therefore, clarified the definition of concrete and asphalt cleaners to specify that products within this item include only those marketed for use in construction or industrial applications. Comment: One commenter, in reference to the Boeing Spec D6–17487P listed in connection with the proposed concrete and asphalt cleaners item, PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 asked if proprietary standards like these are readily available to the purchasing agencies. The commenter stated that, if so, their Hazardous Minimization/Green Products Community would like access to them. Response: USDA does not have access to individual performance specifications such as Boeing Specification D6– 17487P. USDA suggests that interested parties contact biobased product vendors/manufacturers, or the entity that established the performance standard, directly regarding access to their specifications. Dishwashing Products Comment: One commenter, in reference to the Boeing Spec D6–7127 listed in connection with the proposed dishwashing products item, asked if proprietary standards like these are readily available to purchasing agencies. The commenter stated that, if so, their Hazardous Minimization/Green Products Community would like access to them. Response: As stated in the response to a similar comment related to the concrete and asphalt cleaners item, USDA does not have access to individual performance standards and recommends that interested parties contact biobased product vendors/ manufacturers, or the entity that established the performance standard. Floor Cleaners and Protectors Comment: One commenter believes that the proposed designation of floor cleaners and protectors overlaps with the previous designation of bathroom and spa cleaners, as both types of products can be used to clean similar surfaces. The commenter believes that guidance is needed as to which biobased content applies, as the proposed minimum biobased content level for floor cleaners is slightly higher than that recommended for bathroom cleaning products. The commenter further stated that a definition of floor cleaners that clearly distinguishes it from bathroom cleaners is needed. Response: USDA has revised the definition of the proposed floor cleaners and protectors item to specify that products within this item are marketed specifically for use on industrial, commercial, and/or residential flooring. USDA agrees with the commenter that some products that are marketed within the previously designated bathroom and spa cleaners item may be used on floors. Those products are generally marketed as multi-surface cleaners formulated specifically for use in bathrooms and spa areas. By specifying that applicable floor cleaner and protector products are E:\FR\FM\22JYR1.SGM 22JYR1 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations those marketed specifically for use on flooring, USDA believes that most overlay issues will be eliminated. emcdonald on DSK2BSOYB1PROD with RULES Hair Care Products Comment: One commenter recommends that USDA create a category of ‘‘personal care products,’’ with bath products, hand cleaners, and hair care products listed as subsets. Each item should be clearly defined to be distinguishable from each other. Response: USDA agrees with the commenter that some of the proposed and previously designated items include products that are functionally similar and could be more clearly defined to avoid overlap. USDA has developed the designation rulemakings in several individual ‘‘rounds’’ as new product information was gathered. In addition, biobased product manufacturers have continued to introduce biobased alternatives that are marketed in an increasing variety of applications, especially in the category of ‘‘multipurpose’’ cleaners and lubricants. USDA recognizes that the potential for many biobased products to be marketed under multiple designated items continues to increase. On one hand, this is encouraging because it means that biobased alternatives are becoming more widespread and more marketable. On the other hand, it means that some of the items that were designated early in the process are not organized and defined in the most practical way. Once the initial designation of those items for which information is readily available has been completed, USDA intends to revisit the entire list of designated items and undertake a reorganization to streamline and clarify the items and update the minimum biobased content requirements, as applicable. Interior Paints and Coatings Comment: One commenter proposes that this item designation be subcategorized based on differences in the requirements, uses, and performance specifications. Based on the USDA definition of subgroups, the commenter believes two subgroups exist for interior paints and coatings, ‘‘interior latex and latex-hybrid paints and coatings’’ and ‘‘interior oil-based and alkyd paints and coatings.’’ Because significantly different technologies and chemistries are used to meet the requirements, uses, and performance specific to each of these subgroups, different minimum biobased content levels should be set for each of these. The commenter stated that coatings within the first proposed subcategory, interior latex and latex-hybrid paints and coatings, are carried in water and VerDate Mar<15>2010 18:10 Jul 21, 2011 Jkt 223001 are capable of meeting all national and regional VOC regulations. The commenter also stated that it is important that procurement officers have biobased options capable of meeting the VOC regulations in their particular region. The commenter stated that they currently sell products that would fall into this subcategory and can provide them to the USDA for biobased content testing. The commenter recommended that a minimum level of approximately 20 percent biobased carbon would be appropriate for the latex and latex hybrid-paints and coatings subcategory. According to the commenter, latex paint is the dominant coating type used in the interior paint and coatings market; used for typical painting projects, such as wall paint. The commenter stated that users of latex paints have very specific performance expectations, including fast drying times and low odor. The commenter noted that these are very important factors, because the paint cost accounts for only about 20–30 percent of the total paint-job cost, with the majority of costs being related to labor. Faster drying paints significantly reduce labor costs and allow office buildings and other interior spaces to be quickly returned to service after painting. These coatings are also carried in water which results in low odor, low VOC and significantly lower contribution to indoor air quality issues. The commenter also stated that subcategorization of interior latex and latex-hybrid paint and coatings will also provide the requested clarity on the potential overlap that was identified by the USDA, with the EPA’s Resource Conservation and Recovery Act (RCRA). By subcategorizing in this manner, there is no overlap for applications that require a paint from the ‘‘interior oilbased and alkyd paint and coatings’’ subcategory. The commenter stated that, in the case of applications requiring paint from the ‘‘interior latex and latexhybrid paints and coatings’’ subcategory, the decision between a biobased latex paint (USDA BioPreferred) or reprocessed/ consolidated latex paint (EPA RCRA) can be made by the procurement officer based on price, availability, and performance considerations. The commenter stated that the second proposed subcategory, interior oil-based and alkyd paints and coatings are defined by the ACA as ‘‘a paint that contains drying oil, oil varnish or oilmodified resin as the film-forming ingredient.’’ The commenter explained that an alkyd resin is defined by the ACA as ‘‘synthetic resin modified with PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 43813 oil.’’ Thus, alkyd paints and coatings are defined as ‘‘coatings that contains alkyd resins in the binder.’’ The commenter also stated that these coatings typically are carried in a natural or synthetic solvent and therefore may not meet VOC regulations in certain geographical regions. The commenter stated that the coating HC84–0015 tested by the USDA qualifies for this subcategory and the coatings Q14G–0009, Q14G–0013, and Q14G–0002, may qualify for this subcategory as well. The commenter agrees with a 67 percent biobased content level for this subcategory. The commenter explained that interior alkyd and oil-based paints in the U.S. market are typically used for trim paint and as wood primers, especially where tannin blocking is specifically required. The commenter stated that users of alkyd and oil-based paints have very specific performance expectations and that these coatings are used on trim specifically for their hardness, smooth application, tannin blocking ability, and the ability to achieve substantially higher gloss levels. They can also be used for wall coatings when this type of performance is required. In contrast to latex and latex hybrid, these types of coatings are slow to dry and often have some odor associated with them. The commenter recommended the following changes to the proposed designation of biobased interior paints and coatings for preferred Federal procurement: The subcategories should be based on their differentiated use and performance specifications. Allowing for the inclusion of latex paints will lead to wider adoption and use of biobased products in the interior paints and coatings category. The commenter believes that a level of 67 percent biobased content is appropriate for the interior oil-based and alkyd paints and coatings subcategory, but the level for the interior latex and latex-hybrid paints and coatings should be approximately 20 percent biobased carbon content. The commenter also stated that the 100 percent biobased content level found in product MXF6–0004 should not be used to determine the minimum biobased content for interior paints and coatings or either of the proposed subcategories because this type of coating is not feasible for use and this product was not tested for biobased content as it is intended to be used. The commenter stated that, when used as instructed by the manufacture in the product description, the biobased content of the full painting system will E:\FR\FM\22JYR1.SGM 22JYR1 emcdonald on DSK2BSOYB1PROD with RULES 43814 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations be significantly lower. While the milkpaint base itself is biobased, according to the product description provided by the USDA, it requires mixing with an adhesive in order to adhere to nonporous surfaces (e.g. any previously painted surfaces). Milk-paint manufactures also typically recommend using an acrylic top-coat for durability. The commenter stated that, since the adhesive is a necessary part of the ‘‘coating’’ to insure adhesion to the substrate, it must be included in any determination of biobased content. Response: USDA considered the information provided by the commenter, reviewed the data previously collected on this proposed item, and also researched other coatingrelated information available on the Internet. USDA agrees with the commenter that the proposed item should include at least two subcategories based on two fundamentally different coating technologies. USDA found that within the broad category of interior paints and coatings all products can be categorized at the highest level as either waterborne or solventborne. As the names imply, the products can be divided into those that use water as the ‘‘carrier’’ liquid and those that use a solvent other than water (e.g., typically petroleum-based solvents). Waterborne coatings have traditionally been formulated as an emulsion of petroleum based acrylic resins in water. These coatings were low in VOC content, but did not contain biobased components. Solventborne coatings have traditionally been formulated as plant based (soy, linseed, castor) alkyd resins in petroleum based solvents. These coatings have a much higher VOC content, but do include a biobased component. Recent advances in coating technology have resulted in the formulation of waterborne coatings that include varying levels of plant based alkyd resins. Thus, there are now biobased alternatives within both the waterborne and solventborne coating types. While solventborne alkyd coatings still generally contain a much higher biobased content, waterborne coatings with a significant biobased content are becoming increasingly popular. The commenter reported selling a line of waterborne coating products with at least 20 percent biobased content. USDA also contacted a major resin manufacturer who confirmed that their products are used in waterborne alkyd coatings containing biobased contents in the 20 to 30 percent range. VerDate Mar<15>2010 18:10 Jul 21, 2011 Jkt 223001 USDA agrees with the commenter that other types of coatings, such as the milk-paint discussed by the commenter, are not generally representative of the coating technologies that dominate the interior coatings market. While various other types of coating technologies are available, their use is very specialized and the volumes that would potentially be purchased by Federal procurement officials is negligible compared to waterborne and solventborne coatings. USDA has, therefore, not considered these specialty coatings in establishing subcategories for this item. However, to the extent that any of these specialty coatings fall within the subcategories established in today’s final rule, they would be eligible for the same consideration for preferred procurement as more traditional coatings. For the reasons presented above, USDA has decided to create two subcategories within the interior paints and coatings item. USDA recognizes that there are many factors for purchasing officials to consider when purchasing interior paints and coatings. Procurement decisions must be made considering applicable VOC regulations as well as a long list of necessary coating performance characteristics. Creating two subcategories within the interior paints and coatings item allows USDA to acknowledge the differences between the two basic coating types and also to set minimum biobased contents that are representative of each type. In the final rule, the two subcategories are: (1) Interior latex and waterborne alkyd paints and coatings, and (2) interior oilbased and solventborne alkyd paints and coatings. The minimum biobased content of the first subcategory is 20 percent and the minimum biobased content of the second subcategory is 67 percent. USDA believes that these minimum biobased contents will result in procuring officials being able to select from a sufficiently large number of products to ensure that their performance needs can be met. Comment: One commenter stated that, under E.O. 13423 and 13514, Federal agencies are using interior paints with no or low VOC content as part of their high performance sustainable building efforts. For some agencies, the use of noor low-VOC paints is necessary to help meet air non-attainment area requirements. USDA should address the VOC content of biobased paints and whether the use of these products is consistent with agency efforts to reduce their use of VOC-containing products. Response: As discussed in the response to the previous comment, USDA has subcategorized the interior paints and coatings item into two PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 subcategories. The two subcategories can generally be described as being either waterborne (the latex and waterborne alkyds subcategory) or solventborne (the oil-based and solventborne alkyds subcategory). Waterborne coatings, as the name implies, use water as the carrier for the resins and pigments. Solventborne coatings use an organic solvent (typically a petroleum-derived solvent) as the carrier. The vast majority of coatings used in the interior paints and coatings market are waterborne coatings and one of the primary driving factors in the emergence of waterborne technology was the low organic solvent content of these coatings. Not only do these coatings meet VOC requirements, they are fast drying and low in odor. Solventborne coatings are typically used as primers and for wood trim, cabinets, and furniture. They are used primarily for their hardness, smooth application, and higher gloss levels. Because they contain organic solvents, however, these coatings may not meet VOC regulations in some geographical regions. USDA agrees with the commenter that the use of low VOC coatings is an important consideration in many Federal agency’s environmental programs. USDA recommends that purchasing officials first consider the performance and environmental concerns when deciding whether to purchase waterborne or solventborne coatings. Once that decision is made, purchasing officials must determine whether the available biobased alternatives within each coating type meet their performance and cost criteria. Slide Way Lubricants Comment: One commenter stated that the proposed designation of slide way lubricants does not overlap with EPA’s designation of re-refined lubricating oils. The commenter stated that the EPA designation applies to engine lubricants, hydraulic fluids, and gear oils. Response: USDA thanks the commenter for the comment. USDA reconsidered the potential for an overlap and agrees that slide way lubricants do not overlap with EPA’s designated re-refined lubricating oil. USDA has removed the discussion of the potential overlap for this item from the final rule. Thermal Shipping Containers Comment: One commenter stated that this proposed category has two subcategories with only one manufacturer and that USDA is proposing to defer the compliance date until additional manufacturers are identified. The commenter suggests that E:\FR\FM\22JYR1.SGM 22JYR1 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations in future rounds it may be preferable to hold off designating an item until more than one manufacturer is identified. Response: 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), states that USDA shall ‘‘* * * designate those items (including finished products) that are or can be produced with biobased products (including biobased products for which there is only a single product or manufacturer in the category) that will be subject to the preference described in paragraph (2) * * *’’. Thus, USDA does not agree that it should defer designating an item until more than one manufacturer is identified. emcdonald on DSK2BSOYB1PROD with RULES V. Regulatory Information A. Executive Order 12866: Regulatory Planning and Review Executive Order 12866 requires agencies to determine whether a regulatory action is ‘‘significant.’’ The Order defines a ‘‘significant regulatory action’’ as one that is likely to result in a rule that may: ‘‘(1) Have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in this Executive Order.’’ Today’s final rule has been determined by the Office of Management and Budget to be not significant for purposes of Executive Order 12866. We are not able to quantify the annual economic effect associated with today’s final rule. As discussed earlier in this preamble, USDA made extensive efforts to obtain information on the Federal agencies’ usage within the 14 designated items, including their subcategories. These efforts were largely unsuccessful. Therefore, attempts to determine the economic impacts of today’s final rule would require estimation of the anticipated market penetration of biobased products based upon many assumptions. In addition, because agencies have the option of not purchasing designated items if price is ‘‘unreasonable,’’ the product is not VerDate Mar<15>2010 18:10 Jul 21, 2011 Jkt 223001 readily available, or the product does not demonstrate necessary performance characteristics, certain assumptions may not be valid. While facing these quantitative challenges, USDA relied upon a qualitative assessment to determine the impacts of today’s final rule. Consideration was also given to the fact that agencies may choose not to procure designated items due to unreasonable price. 1. Summary of Impacts Today’s final rule is expected to have both positive and negative impacts to 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 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. USDA is unable to determine the number of businesses, including small businesses, that may be adversely affected by today’s final rule. The final rule, however, will not affect existing purchase orders, nor will it preclude businesses from modifying their product lines to meet new requirements for designated biobased products. Because the extent to which procuring agencies will find the performance, availability and/or price of biobased products acceptable is unknown, it is impossible to quantify the actual economic effect of the rule. 2. Benefits of the Final Rule The designation of these 14 items provides the benefits outlined in the objectives of section 9002; to increase domestic demand for many agricultural commodities that can serve as feedstocks for production of biobased products, and to spur development of the industrial base through value-added agricultural processing and manufacturing in rural communities. On a national and regional level, today’s final rule can result in expanding and strengthening markets for biobased materials used in these items. 3. Costs of the Final Rule Like the benefits, the costs of today’s final rule have not been quantified. Two types of costs are involved: Costs to producers of products that will compete with the preferred products and costs to Federal agencies to provide procurement preference for the PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 43815 preferred products. Producers of competing products may face a decrease in demand for their products to the extent Federal agencies refrain from purchasing their products. However, it is not known to what extent this may occur. Pre-award procurement costs for Federal agencies may rise minimally as the contracting officials conduct market research to evaluate the performance, availability and price reasonableness of preferred products before making a purchase. B. Regulatory Flexibility Act (RFA) The RFA, 5 U.S.C. 601–602, generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. USDA evaluated the potential impacts of its designation of these items to determine whether its actions would have a significant impact on a substantial number of small entities. Because the preferred procurement program established under section 9002 applies only to Federal agencies and their contractors, small governmental (city, county, etc.) agencies are not affected. Thus, the proposal, if promulgated, will not have a significant economic impact on small governmental jurisdictions. USDA anticipates that this program will affect entities, both large and small, that manufacture or sell biobased products. For example, the designation of items for preferred procurement will provide additional opportunities for businesses to manufacture and sell biobased products to Federal agencies and their contractors. Similar opportunities will be provided for entities that supply biobased materials to manufacturers. The intent of section 9002 is largely to stimulate the production of new biobased products and to energize emerging markets for those products. Because the program is still in its infancy, however, it is unknown how many businesses will ultimately be affected. While USDA has no data on the number of small businesses that may choose to develop and market biobased products within the items designated by this rulemaking, the number is expected to be small. Because biobased products represent a small emerging market, only a small percentage of all manufacturers, E:\FR\FM\22JYR1.SGM 22JYR1 emcdonald on DSK2BSOYB1PROD with RULES 43816 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations large or small, are expected to develop and market biobased products. Thus, the number of small businesses manufacturing biobased products affected by this rulemaking is not expected to be substantial. The preferred procurement program may decrease opportunities for businesses that manufacture or sell nonbiobased products or provide components for the manufacturing of such products. Most manufacturers of non-biobased products within the items being designated for preferred procurement in this rule are expected to be included under the following NAICS codes: 324191 (petroleum lubricating oil and grease manufacturing), 325320 (pesticide and other agricultural chemical manufacturing), 325412 (pharmaceutical preparation manufacturing), 325510 (paint and coating manufacturing), 325611 (soap and other detergent manufacturing), 325612 (polish and other sanitation goods manufacturing), 325620 (toilet preparation manufacturing), 325998 (other miscellaneous chemical products and preparation manufacturing), 326150 (urethane and other foam product manufacturing), and 314999 (other miscellaneous textile mill products). USDA obtained information on these 10 NAICS categories from the U.S. Census Bureau’s Economic Census database. USDA found that the Economic Census reports about 8,092 companies within these 10 NAICS categories and that these companies own a total of about 9,255 establishments. Thus, the average number of establishments per company is about 1.1. The Census data also reported that of the 9,255 individual establishments, about 9,119 (98.5 percent) have fewer than 500 employees. USDA also found that the overall average number of employees per company among these industries is about 58, with only one segment reporting an average of more than 100 employees (the pharmaceutical preparation industry segment at about 250 employees per company). Thus, nearly all of the businesses fall within the Small Business Administration’s definition of a small business (fewer than 500 employees, in most NAICS categories). USDA does not have data on the potential adverse impacts on manufacturers of non-biobased products within the items being designated, but believes that the impact will not be significant. Most of the items being designated in this rulemaking are typical consumer products widely used by the general public and by industrial/ commercial establishments that are not subject to this rulemaking. Thus, USDA VerDate Mar<15>2010 18:10 Jul 21, 2011 Jkt 223001 believes that the number of small businesses manufacturing non-biobased products within the items being designated and selling significant quantities of those products to government agencies affected by this rulemaking to be relatively low. Also, this final rule will not affect existing purchase orders and it will not preclude procuring agencies from continuing to purchase non-biobased items when biobased items do not meet the availability, performance, or reasonable price criteria. This final rule will also not preclude businesses from modifying their product lines to meet new specifications or solicitation requirements for these products containing biobased materials. After considering the economic impacts of this final rule on small entities, USDA certifies that this action will not have a significant economic impact on a substantial number of small entities. While not a factor relevant to determining whether the final rule will have a significant impact for RFA purposes, USDA has concluded that the effect of the rule will be to provide positive opportunities to businesses engaged in the manufacture of these biobased products. Purchase and use of these biobased products by procuring agencies increase demand for these products and result in private sector development of new technologies, creating business and employment opportunities that enhance local, regional, and national economies. C. Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights This final rule has been reviewed in accordance with Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and does not contain policies that would have implications for these rights. D. Executive Order 12988: Civil Justice Reform This rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. This rule does not preempt State or local laws, is not intended to have retroactive effect, and does not involve administrative appeals. E. Executive Order 13132: Federalism This final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Provisions of this final rule will not have a substantial direct effect on States or their political subdivisions PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 or on the distribution of power and responsibilities among the various government levels. F. Unfunded Mandates Reform Act of 1995 This final rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538, for State, local, and tribal governments, or the private sector. Therefore, a statement under section 202 of UMRA is not required. G. Executive Order 12372: Intergovernmental Review of Federal Programs For the reasons set forth in the Final Rule Related Notice for 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials. This program does not directly affect State and local governments. H. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Today’s final rule does not significantly or uniquely affect ‘‘one or more Indian tribes, * * * the relationship between the Federal Government and Indian tribes, or * * * the distribution of power and responsibilities between the Federal Government and Indian tribes.’’ Thus, no further action is required under Executive Order 13175. I. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 through 3520), the information collection under this final rule is currently approved under OMB control number 0503–0011. J. E-Government Act Compliance USDA is committed to compliance with the E-Government Act, which requires Government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. USDA is implementing an electronic information system for posting information voluntarily submitted by manufacturers or vendors on the products they intend to offer for preferred procurement under each designated item. For information pertinent to E-Government Act compliance related to this rule, please contact Ron Buckhalt at (202) 205–4008. E:\FR\FM\22JYR1.SGM 22JYR1 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, that includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. USDA has submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. List of Subjects in 7 CFR Part 2902 Biobased products, Procurement. For the reasons stated in the preamble, the Department of Agriculture is amending 7 CFR chapter XXIX as follows: Chapter XXIX Office of Energy PART 2902—GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL PROCUREMENT 1. The authority citation for part 2902 continues to read as follows: ■ Authority: 7 U.S.C. 8102. 2. Add §§ 2902.61 through 2902.74 to subpart B to read as follows: ■ Sec. 2902.61 Animal repellents. 2902.62 Bath products. 2902.63 Bioremediation materials. 2902.64 Compost activators and accelerators. 2902.65 Concrete and asphalt cleaners. 2902.66 Cuts, burns, and abrasions ointments. 2902.67 Dishwashing products. 2902.68 Erosion control materials. 2902.69 Floor cleaners and protectors. 2902.70 Hair care products. 2902.71 Interior paints and coatings. 2902.72 Oven and grill cleaners. 2902.73 Slide way lubricants. 2902.74 Thermal shipping containers. emcdonald on DSK2BSOYB1PROD with RULES § 2902.61 Animal repellents. (a) Definition. Products used to aid in deterring animals that cause destruction to plants and/or property. (b) Minimum biobased content. The Federal preferred procurement product must have a minimum biobased content of at least 79 percent, which shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, VerDate Mar<15>2010 18:10 Jul 21, 2011 Jkt 223001 will give a procurement preference for qualifying biobased animal repellents. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant specifications require the use of biobased animal repellents. § 2902.62 Bath products. (a) Definition. Personal hygiene products including bar soaps, liquids, or gels that are referred to as body washes, body shampoos, or cleansing lotions, but excluding products marketed as hand cleaners and/or hand sanitizers. (b) Minimum biobased content. The Federal preferred procurement product must have a minimum biobased content of at least 61 percent, which shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, will give a procurement preference for qualifying biobased bath products. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant specifications require the use of biobased bath products. § 2902.63 Bioremediation materials. (a) Definition. Dry or liquid solutions (including those containing bacteria or other microbes but not including sorbent materials) used to clean oil, fuel, and other hazardous spill sites. (b) Minimum biobased content. The Federal preferred procurement product must have a minimum biobased content of at least 86 percent, which shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, will give a procurement preference for qualifying biobased bioremediation materials. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant specifications require the use of biobased bioremediation materials. § 2902.64 Compost activators and accelerators. (a) Definition. Products in liquid or powder form 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. PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 43817 (b) Minimum biobased content. The Federal preferred procurement product must have a minimum biobased content of at least 95 percent, which shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, will give a procurement preference for qualifying biobased compost activators and accelerators. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant specifications require the use of biobased compost activators and accelerators. § 2902.65 Concrete and asphalt cleaners. (a) Definition. Chemicals used in concrete etching as well as to remove petroleum-based soils, lubricants, paints, mastics, organic soils, rust, and dirt from concrete, asphalt, stone and other hard porous surfaces. Products within this item include only those marketed for use in commercial or residential construction or industrial applications. (b) Minimum biobased content. The Federal preferred procurement product must have a minimum biobased content of at least 70 percent, which shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, will give a procurement preference for qualifying biobased concrete and asphalt cleaners. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant specifications require the use of biobased concrete and asphalt cleaners. § 2902.66 Cuts, burns, and abrasions ointments. (a) Definition. Products designed to aid in the healing and sanitizing of scratches, cuts, bruises, abrasions, sun damaged skin, tattoos, rashes and other skin conditions. (b) Minimum biobased content. The Federal preferred procurement product must have a minimum biobased content of at least 84 percent, which shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. E:\FR\FM\22JYR1.SGM 22JYR1 43818 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, will give a procurement preference for qualifying biobased cuts, burns, and abrasions ointments. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant specifications require the use of biobased cuts, burns, and abrasions ointments. § 2902.67 Dishwashing products. (a) Definition. Soaps and detergents used for cleaning and clean rinsing of tableware in either hand washing or dishwashing. (b) Minimum biobased content. The Federal preferred procurement product must have a minimum biobased content of at least 58 percent, which shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, will give a procurement preference for qualifying biobased dishwashing products. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant specifications require the use of biobased dishwashing products. emcdonald on DSK2BSOYB1PROD with RULES § 2902.68 Erosion control materials. (a) Definition. Woven or non-woven fiber materials manufactured for use on construction, demolition, or other sites to prevent wind or water erosion of loose earth surfaces, which may be combined with seed and/or fertilizer to promote growth. (b) Minimum biobased content. The Federal preferred procurement product must have a minimum biobased content of at least 77 percent, which shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, will give a procurement preference for qualifying biobased erosion control materials. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant specifications require the use of biobased erosion control materials. VerDate Mar<15>2010 18:10 Jul 21, 2011 Jkt 223001 § 2902.69 Floor cleaners and protectors. (a) Definition. Cleaning solutions for either direct application or use in floor scrubbers for wood, vinyl, tile, or similar hard surface floors. Products within this item are marketed specifically for use on industrial, commercial, and/or residential flooring. (b) Minimum biobased content. The Federal preferred procurement product must have a minimum biobased content of at least 77 percent, which shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, will give a procurement preference for qualifying biobased floor cleaners and protectors. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant specifications require the use of biobased floor cleaners and protectors. § 2902.70 Hair care products. (a) Definitions. (1) Personal hygiene products specifically formulated for hair cleaning and treating applications, including shampoos and conditioners. (2) Hair care products for which Federal preferred procurement applies are: (i) Shampoos. These are products whose primary purpose is cleaning hair. Products that contain both shampoos and conditioners are included in this subcategory because the primary purpose of these products is cleaning the hair. (ii) Conditioners. These are products whose primary purpose is treating hair to improve the overall condition of hair. (b) Minimum biobased content. The minimum biobased content for all hair care products shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. The applicable minimum biobased contents for the Federal preferred procurement products are: (1) Shampoos—66 percent. (2) Conditioners—78 percent. (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, will give a procurement preference for qualifying biobased hair care products. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 specifications require the use of biobased hair care products. § 2902.71 Interior paints and coatings. (a) Definition. (1) Pigmented liquids, formulated for use indoors, that dry to form a film and provide protection and added color to the objects or surfaces to which they are applied. (2) Interior paints and coatings products for which Federal preferred procurement applies are: (i) Interior latex and waterborne alkyd paints and coatings. (ii) Interior oil-based and solventborne alkyd paints and coatings. (b) Minimum biobased content. The minimum biobased content for all interior paints and coatings products shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. The applicable minimum biobased contents for the Federal preferred procurement products are: (1) Interior latex and waterborne alkyd paints and coatings—20 percent. (2) Interior oil-based and solventborne alkyd paints and coatings—67 percent. (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, will give a procurement preference for qualifying biobased interior paints and coatings. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant specifications require the use of biobased interior paints and coatings. (d) Determining overlap with an EPAdesignated recovered content product. Qualifying biobased products within the interior latex and waterborne alkyd paints and coatings subcategory may, in some cases, overlap with the EPAdesignated recovered content products: Reprocessed latex paints and consolidated latex paints. USDA is requesting that manufacturers of these qualifying biobased products provide information on the USDA Web site of qualifying biobased products about the intended uses of the product, information on whether or not the product contains any recovered material, in addition to biobased ingredients, and performance standards against which the product has been tested. This information will assist Federal agencies in determining whether or not a qualifying biobased product overlaps with EPA-designated reprocessed latex paints and consolidated latex paints and which product should be afforded the preference in purchasing. E:\FR\FM\22JYR1.SGM 22JYR1 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations Note to paragraph (d): Biobased interior latex and waterborne alkyd paints and coatings products within this subcategory can compete with similar reprocessed latex paint and consolidated latex paint products with recycled content. Under the Resource Conservation and Recovery Act of 1976, section 6002, the U.S. Environmental Protection Agency designated reprocessed latex paints and consolidated latex paints containing recovered materials as items for which Federal agencies must give preference in their purchasing programs. The designation can be found in the Comprehensive Procurement Guideline, 40 CFR 247.12. § 2902.72 Oven and grill cleaners. (a) Definition. Liquid or gel cleaning agents used on high temperature cooking surfaces such as barbeques, smokers, grills, stoves, and ovens to soften and loosen charred food, grease, and residue. (b) Minimum biobased content. The Federal preferred procurement product must have a minimum biobased content of at least 66 percent, which shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, will give a procurement preference for qualifying biobased oven and grill cleaners. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant specifications require the use of biobased oven and grill cleaners. emcdonald on DSK2BSOYB1PROD with RULES § 2902.73 Slide way lubricants. (a) Definition. Products used to provide lubrication and eliminate stickslip and table chatter by reducing friction between mating surfaces, or slides, found in machine tools. (b) Minimum biobased content. The Federal preferred procurement product must have a minimum biobased content of at least 74 percent, which shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. (c) Preference compliance date. No later than July 23, 2012, procuring agencies, in accordance with this part, will give a procurement preference for VerDate Mar<15>2010 18:10 Jul 21, 2011 Jkt 223001 qualifying biobased slide way lubricants. By that date, Federal agencies that have the responsibility for drafting or reviewing specifications for items to be procured shall ensure that the relevant specifications require the use of biobased slide way lubricants. non-durable thermal shipping containers. § 2902.74 43819 BILLING CODE 3410–93–P Thermal shipping containers. (a) Definitions. (1) Insulated containers designed for shipping temperature-sensitive materials. (2) Thermal shipping containers for which Federal preferred procurement applies are: (i) Durable thermal shipping container. These are thermal shipping containers that are designed to be reused over an extended period of time. (ii) Non-durable thermal shipping containers. These are thermal shipping containers that are designed to be used once. (b) Minimum biobased content. The minimum biobased content for all thermal shipping container products shall be based on the amount of qualifying biobased carbon in the product as a percent of the weight (mass) of the total organic carbon in the finished product. The applicable minimum biobased contents for the Federal preferred procurement products are: (1) Durable thermal shipping containers—21 percent. (2) Non-durable thermal shipping containers—82 percent. (c) Preference compliance date—(1) Durable thermal shipping containers. Determination of the preference compliance date for durable thermal shipping containers is deferred until USDA identifies two or more manufacturers of biobased durable thermal shipping containers. At that time, USDA will publish a document in the Federal Register announcing that Federal agencies have one year from the date of publication to give procurement preference to biobased durable thermal shipping containers. (2) Non-durable thermal shipping containers. Determination of the preference compliance date for nondurable thermal shipping containers is deferred until USDA identifies two or more manufacturers of biobased nondurable thermal shipping containers. At that time, USDA will publish a document in the Federal Register announcing that Federal agencies have one year from the date of publication to give procurement preference to biobased PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 Dated: July 15, 2011. Pearlie S. Reed, Assistant Secretary for Administration, U.S. Department of Agriculture. [FR Doc. 2011–18478 Filed 7–21–11; 8:45 am] DEFENSE NUCLEAR FACILITIES SAFETY BOARD 10 CFR Part 1703 FOIA Fee Schedule Update Defense Nuclear Facilities Safety Board. ACTION: Establishment of FOIA Fee Schedule. AGENCY: The Defense Nuclear Facilities Safety Board is publishing its Freedom of Information Act (FOIA) Fee Schedule Update pursuant to the Board’s regulations. DATES: Effective Date: July 29, 2011. FOR FURTHER INFORMATION CONTACT: Brian Grosner, General Manager, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue, NW., Suite 700, Washington, DC 20004–2901, (202) 694– 7060. SUPPLEMENTARY INFORMATION: The FOIA requires each Federal agency covered by the Act to specify a schedule of fees applicable to processing of requests for agency records. 5 U.S.C. 552(a)(4)(A)(i). On May 16, 2011 the Board published for comment in the Federal Register its Proposed FOIA Fee Schedule, 76 FR 28194. In response to the notice, one comment was received regarding excessive fees. The Board’s 2010 and 2011 FOIA fee schedules are the same; there is no proposed increase. The Board is now establishing the Fee Schedule. Pursuant to 10 CFR 1703.107(b)(6) of the Board’s regulations, the Board’s General Manager will update the FOIA Fee Schedule once every 12 months. The previous Fee Schedule Update was published in the Federal Register and went into effect on June 15, 2010, 75 FR 39629. SUMMARY: Board Action Accordingly, the Board issues the following schedule of updated fees for services performed in response to FOIA requests: E:\FR\FM\22JYR1.SGM 22JYR1

Agencies

[Federal Register Volume 76, Number 141 (Friday, July 22, 2011)]
[Rules and Regulations]
[Pages 43808-43819]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18478]


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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: Final rule.

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SUMMARY: The U.S. Department of Agriculture (USDA) is amending the 
Guidelines for Designating Biobased Products for Federal Procurement, 
to add 14 sections to designate items within which biobased products 
will be afforded Federal procurement preference, as provided for under 
section 9002 of the Farm Security and Rural Investment Act of 2002, as 
amended by the Food, Conservation, and Energy Act of 2008 (referred to 
in this document as ``section 9002''). USDA is also establishing 
minimum biobased contents for each of these items.

DATES: This rule is effective August 22, 2011.

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 http://www.biopreferred.gov.

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

I. Authority
II. Background
III. Summary of Changes
IV. Discussion of Public Comments
V. Regulatory Information
    A. Executive Order 12866: Regulatory Planning and Review
    B. Regulatory Flexibility Act (RFA)
    C. Executive Order 12630: Governmental Actions and Interference 
With Constitutionally Protected Property Rights
    D. Executive Order 12988: Civil Justice Reform
    E. Executive Order 13132: Federalism
    F. Unfunded Mandates Reform Act of 1995
    G. Executive Order 12372: Intergovernmental Review of Federal 
Programs
    H. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    I. Paperwork Reduction Act
    J. E-Government Act
    K. Congressional Review Act

I. Authority

    These items are designated 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

    As part of the BioPreferred Program, USDA published, on November 
23, 2010, a proposed rule in the Federal Register (FR) for the purpose 
of designating a total of 14 items for the preferred procurement of 
biobased products by Federal agencies (referred to hereafter in this FR 
notice as the ``preferred procurement program''). This proposed rule 
can be found at 75 FR 71492. This rulemaking is referred to in this 
preamble as Round 7 (RIN 0503-AA36).
    In the proposed rule, USDA proposed designating the following 14 
items 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.
    Today's final rule designates the proposed items within which 
biobased products will be afforded Federal procurement preference. USDA 
has determined that each of the items being designated under today's 
rulemaking meets the necessary statutory requirements; that they are 
being produced with biobased products; and that their procurement will 
carry out the following objectives of section 9002: to improve demand 
for biobased products; to spur development of the industrial base 
through value-added agricultural processing and manufacturing in rural 
communities; and to enhance the Nation's energy security by 
substituting biobased products for products derived from imported oil 
and natural gas.
    When USDA designates by rulemaking an item (a generic grouping of 
products) for preferred procurement under the BioPreferred Program, 
manufacturers of all products under the umbrella of that item, that 
meet the requirements to qualify for preferred procurement, can claim 
that status for their products. To qualify for preferred procurement, a 
product must be within a designated item and must contain at least the 
minimum biobased content established for the designated item. When the 
designation of specific items is finalized, USDA will invite the 
manufacturers and vendors of these qualifying products to post 
information on the product, contacts, and performance testing on its 
BioPreferred Web site, http://www.biopreferred.gov. Procuring agencies 
will be able to utilize this Web site as one tool to determine the 
availability of qualifying biobased products under a designated item. 
Once USDA designates an item, procuring agencies are required generally 
to purchase biobased products within these designated items where the 
purchase price of the procurement item exceeds $10,000 or where the 
quantity of such items or of functionally equivalent items purchased 
over the preceding fiscal year equaled $10,000 or more.
    Subcategorization. Most of the items USDA is considering for 
designation for preferred procurement cover a wide range of products. 
For some items, there are subgroups of products within the item that 
meet different requirements, uses and/or different performance 
specifications. Where such subgroups exist, USDA intends to create 
subcategories within the designated items. 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 designation to create subcategories within an item. 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

[[Page 43809]]

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 final rule, USDA has subcategorized three of the 
items being designated. The first item is hair care products and the 
subcategories are (1) shampoo products, and (2) conditioner products. 
The second item is interior paints and coatings and the subcategories 
are (1) interior latex and waterborne alkyd paints and coatings, and 
(2) interior oil-based and solventborne alkyd paints and coatings. The 
third item is thermal shipping containers and the subcategories are (1) 
durable thermal shipping containers, and (2) non-durable thermal 
shipping containers.
    Minimum Biobased Contents. The minimum biobased contents being 
established with today's rulemaking are based on products for which 
USDA has biobased content test data. 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 public comments 
received on the proposed minimum biobased contents and product 
performance information. 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. 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. 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 final 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.
    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 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 http://www.astm.org. 
Information on the BEES analytical tool can be found on the Web site 
http://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 final rule designates one item for preferred procurement for 
which there may be overlap with an EPA-designated recovered content 
product. The interior latex and waterborne alkyd subcategory within the 
interior paints and coatings item may overlap with the EPA-

[[Page 43810]]

designated recovered content products ``reprocessed latex paints'' and 
``consolidated latex paints.'' 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 http://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 (VOC). 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 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 (www.abilityone.gov) 
indicated that four of the items being designated 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 designated 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 final rulemaking 
designates 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

[[Page 43811]]

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 Changes

    As a result of the comments received on the proposed rule, USDA has 
made several changes in finalizing the proposed rule. These changes are 
summarized in the remainder of this section. A summary of each comment 
received, and USDA's response to the comment, is presented in section 
IV.
    The definitions of three proposed items were revised to avoid 
potential overlap with previously designated items. The definition of 
the bath products designated item was revised to specifically exclude 
products marketed as hand cleaners and/or hand sanitizers. The 
definition of the concrete and asphalt cleaners designated item was 
revised to include only those products marketed for use in commercial 
or residential construction or industrial applications. The definition 
of the floor cleaners and protectors designated item was revised to 
include only those products marketed specifically for use on 
industrial, commercial, and/or residential flooring.
    The proposed item interior paints and coatings was subcategorized. 
The subcategories are (1) interior latex and waterborne alkyd paints 
and coatings, and (2) interior oil-based and solventborne alkyd paints 
and coatings.
    The discussion of potential overlap with the EPA recovered content 
product re-refined lubricating oil was removed from the slide way 
lubricants.

IV. Discussion of Public Comments

    USDA solicited comments on the proposed rule for 60 days ending on 
January 24, 2011. USDA received comments from five commenters by that 
date. The comments were from three Federal government agencies and two 
biobased product manufacturers.
    In the remainder of this section, USDA first addresses two general 
comments that relate to the overall designation process. Comments 
related to the designation of specific items are presented next, 
followed by USDA's response to those comments.

General

    Comment: One commenter stated that the BioPreferred Web site might 
imply to some that the listed products have been tested and meet all 
Federal requirements, when the primary test of concern is for biobased 
content. The commenter stated that, in numerous cases, the products 
have not been tested/evaluated for DoD applications. The commenter 
suggested that there should be some type of statement on the Web site 
explaining that the item type meets USDA requirements but not 
necessarily those of any other component of the Federal government.
    Response: USDA agrees with the commenter that the functional 
performance of biobased products is of great concern to procuring 
agencies and that such performance is not guaranteed as a part of the 
designation process. USDA attempts to gather performance information 
from biobased product manufacturers during the designation process, but 
does not have the statutory authority to require manufacturers to 
provide such information. The absence of industry standards listed in 
association with a catalog entry simply indicates that the company has 
elected not to provide any information about performance testing 
associated with their products. Purchasing officials interested in 
performance data associated with a specific product are encouraged to 
contact the listed contacts for further information. USDA will consider 
the feasibility of including a symbol in the catalog (when the 
performance standards record is null) so that purchasing officials can 
quickly see which products have testing standards associated with their 
products.

New Product Category

    Comment: One commenter believes that it is important to have a 
product category designation for automotive motor oils. The commenter 
states that there are categories for 2-cycle engine oil, and bar and 
chain lubricant, which are typically petroleum-based products. The 
commenter believes there would be significant benefit in designating 
automotive motor oils as a product category in the next round. The 
commenter stated that this could lead to the creation of more effective 
and environmentally friendly motor oil from biobased materials.
    Response: USDA thanks the commenter for the recommendation and is 
willing to work with the commenter to obtain valid information 
regarding the potential for establishing a product category for 
automotive motor oils. USDA would be especially interested in obtaining 
information related to performance characteristics of biobased 
automotive motor oils, including documentation of successful 
performance testing by recognized testing organizations such as ASTM 
and SAE.

Animal Repellents

    Comment: One commenter stated that Federal agencies are 
implementing integrated pest management (IPM) in place of the use of 
pesticides. The commenter recommends USDA address whether the use of 
biobased animal repellents is consistent with Federal IPM efforts.
    Response: USDA contacted Dr. Martin Draper, the National Program 
Leader--Plant Pathology, of USDA's National Institute of Food and 
Agriculture to discuss whether the use of biobased animal repellents is 
consistent with Federal IPM programs. Dr. Draper stated that IPM 
encourages the use of diverse methods of mitigating pest pressures, in 
most cases reducing pesticide use. He further stated that biorational 
pesticides and biological controls would be welcome and encouraged 
within the constructs of IPM. He stated that IPM programs are focused 
on efficacious products and strategies that optimize economic advantage 
while reducing potential deleterious effects on the environment and 
human health and that if the products that can do that are biobased, 
all the better. He further stated that pest repellents would be 
included as a component of IPM if that was an appropriate strategy. 
According to Dr. Draper, exclusion, the best option in managing 
vertebrate pests, is impractical or illegal in some cases. In those 
cases, repellents become very important in the management of some very 
damaging pests. Dr. Draper concluded by saying that he did not see 
where the use of biobased animal repellents would be a conflict with 
IPM programs.

Bath Products

    Comment: One commenter believes that the proposed designation of 
bath products overlaps with the previous designation of hand cleaners. 
The commenter stated that manufacturers and purchasers need clear 
guidance as to which biobased content level applies, as the recommended 
minimum biobased content level for hand cleaners is slightly higher 
than that proposed for bath products. The commenter further recommends 
that USDA provide a clear definition of bath products that 
distinguishes it from hand cleaners.
    Response: USDA does not believe that the designation of bath 
products overlaps significantly with the previous designation of hand 
cleaners and sanitizers. Hand cleaners and sanitizers are defined as 
products formulated exclusively for use as human hand personal care 
products. Bath products, as defined, are personal hygiene

[[Page 43812]]

products, including soaps and other cleansers. However, USDA does agree 
that there may be some confusion regarding these differences and has 
amended the definition of bath products to state that these exclude 
products that are specifically marketed as ``hand cleaners'' and/or 
``hand sanitizer'' products.

Bioremediation Materials and Compost Activators and Accelerators

    Comment: One commenter stated that the designation of 
bioremediation materials and compost activators could lead to 
unnecessary addition of biobased components to these products in order 
to qualify for Federal procurement preference.
    The commenter stated that a review of the Technical Support 
Document indicates that the overwhelming majority of the products 
identified within these two product categories consist of active 
biological microorganism cultures. The commenter further noted that 
some product descriptions also indicate that the product contains 
nutrients or organic materials. However, the active ingredient is 
typically a culture of microorganisms.
    Thus, according to the commenter, developing a formula for sale to 
the government by adding more biobased organic materials that simply 
dilute the microbiological active ingredient is a logical response to 
USDA's contemplated biobased content minimum. The commenter stated that 
the result of a ``successful'' USDA designation in this area might be 
simply the wasting of biobased products into the compost pile or into 
soils being remediated. The commenter further stated that the addition 
of biobased organic materials would also increase the use of packaging 
materials, fuels, etc. for product transport, having a negative effect 
on the environment.
    The commenter also noted that neither of these product classes 
appears to have standardized tests to determine product effectiveness--
which increases the difficulty to the government to avoid procurement 
of diluted products prepared to satisfy a biobased content mandate.
    The commenter recommends that the ``bioremediation materials'' 
product category and the ``compost activators and accelerators'' 
product category not be designated under the biobased procurement 
preference program.
    Response: USDA disagrees with the commenter's recommendation that 
bioremediation materials and compost activators and accelerators not be 
included in the biobased procurement preference program. Based on the 
information collected prior to proposing these items for designation, 
available products within these two items are almost universally high 
in biobased content. Also, because the microorganisms that are the 
active ingredients in the products would be counted as biobased 
content, reducing the percentage of the microorganisms in the product 
and increasing the biobased nutrient, or carrier, content would not 
increase the overall biobased content of a product. In addition, 
reformulating the product to include fewer microorganisms would tend to 
hurt the performance of the product. Thus, manufacturers would have no 
reason to add inactive biobased ingredients to increase the biobased 
content of the products. USDA held a meeting with the commenter to 
clarify the comments/responses and explain the rationale for finalizing 
the designation of these two items, but did not make any changes in the 
final rule.

Concrete and Asphalt Cleaners

    Comment: One commenter stated that the proposed designation of 
concrete and asphalt cleaners overlaps with the previously designated 
graffiti remover. The commenter believes that guidance is needed as to 
which biobased content applies, as the proposed minimum biobased 
content level for graffiti remover is significantly lower than that for 
the concrete and asphalt cleaners. The commenter further stated that 
concrete and asphalt cleaners should be clearly distinguished from 
graffiti remover.
    Response: USDA reviewed the product information collected on both 
the proposed concrete and asphalt cleaners item and the previously 
designated graffiti remover item to investigate clarifications that 
could be made to the definitions. Based on the product descriptions 
provided by manufacturers, USDA found that products within the proposed 
concrete and asphalt cleaners item were predominantly described as 
being intended for use in construction or industrial applications. 
Graffiti and grease remover products were generally described as being 
intended for use in janitorial and/or institutional applications. USDA 
has, therefore, clarified the definition of concrete and asphalt 
cleaners to specify that products within this item include only those 
marketed for use in construction or industrial applications.
    Comment: One commenter, in reference to the Boeing Spec D6-17487P 
listed in connection with the proposed concrete and asphalt cleaners 
item, asked if proprietary standards like these are readily available 
to the purchasing agencies. The commenter stated that, if so, their 
Hazardous Minimization/Green Products Community would like access to 
them.
    Response: USDA does not have access to individual performance 
specifications such as Boeing Specification D6-17487P. USDA suggests 
that interested parties contact biobased product vendors/manufacturers, 
or the entity that established the performance standard, directly 
regarding access to their specifications.

Dishwashing Products

    Comment: One commenter, in reference to the Boeing Spec D6-7127 
listed in connection with the proposed dishwashing products item, asked 
if proprietary standards like these are readily available to purchasing 
agencies. The commenter stated that, if so, their Hazardous 
Minimization/Green Products Community would like access to them.
    Response: As stated in the response to a similar comment related to 
the concrete and asphalt cleaners item, USDA does not have access to 
individual performance standards and recommends that interested parties 
contact biobased product vendors/manufacturers, or the entity that 
established the performance standard.

Floor Cleaners and Protectors

    Comment: One commenter believes that the proposed designation of 
floor cleaners and protectors overlaps with the previous designation of 
bathroom and spa cleaners, as both types of products can be used to 
clean similar surfaces. The commenter believes that guidance is needed 
as to which biobased content applies, as the proposed minimum biobased 
content level for floor cleaners is slightly higher than that 
recommended for bathroom cleaning products. The commenter further 
stated that a definition of floor cleaners that clearly distinguishes 
it from bathroom cleaners is needed.
    Response: USDA has revised the definition of the proposed floor 
cleaners and protectors item to specify that products within this item 
are marketed specifically for use on industrial, commercial, and/or 
residential flooring. USDA agrees with the commenter that some products 
that are marketed within the previously designated bathroom and spa 
cleaners item may be used on floors. Those products are generally 
marketed as multi-surface cleaners formulated specifically for use in 
bathrooms and spa areas. By specifying that applicable floor cleaner 
and protector products are

[[Page 43813]]

those marketed specifically for use on flooring, USDA believes that 
most overlay issues will be eliminated.

Hair Care Products

    Comment: One commenter recommends that USDA create a category of 
``personal care products,'' with bath products, hand cleaners, and hair 
care products listed as subsets. Each item should be clearly defined to 
be distinguishable from each other.
    Response: USDA agrees with the commenter that some of the proposed 
and previously designated items include products that are functionally 
similar and could be more clearly defined to avoid overlap. USDA has 
developed the designation rulemakings in several individual ``rounds'' 
as new product information was gathered. In addition, biobased product 
manufacturers have continued to introduce biobased alternatives that 
are marketed in an increasing variety of applications, especially in 
the category of ``multi-purpose'' cleaners and lubricants. USDA 
recognizes that the potential for many biobased products to be marketed 
under multiple designated items continues to increase. On one hand, 
this is encouraging because it means that biobased alternatives are 
becoming more widespread and more marketable. On the other hand, it 
means that some of the items that were designated early in the process 
are not organized and defined in the most practical way. Once the 
initial designation of those items for which information is readily 
available has been completed, USDA intends to revisit the entire list 
of designated items and undertake a reorganization to streamline and 
clarify the items and update the minimum biobased content requirements, 
as applicable.

Interior Paints and Coatings

    Comment: One commenter proposes that this item designation be 
subcategorized based on differences in the requirements, uses, and 
performance specifications. Based on the USDA definition of subgroups, 
the commenter believes two subgroups exist for interior paints and 
coatings, ``interior latex and latex-hybrid paints and coatings'' and 
``interior oil-based and alkyd paints and coatings.'' Because 
significantly different technologies and chemistries are used to meet 
the requirements, uses, and performance specific to each of these 
subgroups, different minimum biobased content levels should be set for 
each of these.
    The commenter stated that coatings within the first proposed 
subcategory, interior latex and latex-hybrid paints and coatings, are 
carried in water and are capable of meeting all national and regional 
VOC regulations. The commenter also stated that it is important that 
procurement officers have biobased options capable of meeting the VOC 
regulations in their particular region. The commenter stated that they 
currently sell products that would fall into this subcategory and can 
provide them to the USDA for biobased content testing. The commenter 
recommended that a minimum level of approximately 20 percent biobased 
carbon would be appropriate for the latex and latex hybrid-paints and 
coatings subcategory.
    According to the commenter, latex paint is the dominant coating 
type used in the interior paint and coatings market; used for typical 
painting projects, such as wall paint. The commenter stated that users 
of latex paints have very specific performance expectations, including 
fast drying times and low odor. The commenter noted that these are very 
important factors, because the paint cost accounts for only about 20-30 
percent of the total paint-job cost, with the majority of costs being 
related to labor. Faster drying paints significantly reduce labor costs 
and allow office buildings and other interior spaces to be quickly 
returned to service after painting. These coatings are also carried in 
water which results in low odor, low VOC and significantly lower 
contribution to indoor air quality issues.
    The commenter also stated that subcategorization of interior latex 
and latex-hybrid paint and coatings will also provide the requested 
clarity on the potential overlap that was identified by the USDA, with 
the EPA's Resource Conservation and Recovery Act (RCRA). By 
subcategorizing in this manner, there is no overlap for applications 
that require a paint from the ``interior oil-based and alkyd paint and 
coatings'' subcategory. The commenter stated that, in the case of 
applications requiring paint from the ``interior latex and latex-hybrid 
paints and coatings'' subcategory, the decision between a biobased 
latex paint (USDA BioPreferred) or reprocessed/consolidated latex paint 
(EPA RCRA) can be made by the procurement officer based on price, 
availability, and performance considerations.
    The commenter stated that the second proposed subcategory, interior 
oil-based and alkyd paints and coatings are defined by the ACA as ``a 
paint that contains drying oil, oil varnish or oil-modified resin as 
the film-forming ingredient.'' The commenter explained that an alkyd 
resin is defined by the ACA as ``synthetic resin modified with oil.'' 
Thus, alkyd paints and coatings are defined as ``coatings that contains 
alkyd resins in the binder.'' The commenter also stated that these 
coatings typically are carried in a natural or synthetic solvent and 
therefore may not meet VOC regulations in certain geographical regions.
    The commenter stated that the coating HC84-0015 tested by the USDA 
qualifies for this subcategory and the coatings Q14G-0009, Q14G-0013, 
and Q14G-0002, may qualify for this subcategory as well. The commenter 
agrees with a 67 percent biobased content level for this subcategory.
    The commenter explained that interior alkyd and oil-based paints in 
the U.S. market are typically used for trim paint and as wood primers, 
especially where tannin blocking is specifically required. The 
commenter stated that users of alkyd and oil-based paints have very 
specific performance expectations and that these coatings are used on 
trim specifically for their hardness, smooth application, tannin 
blocking ability, and the ability to achieve substantially higher gloss 
levels. They can also be used for wall coatings when this type of 
performance is required. In contrast to latex and latex hybrid, these 
types of coatings are slow to dry and often have some odor associated 
with them.
    The commenter recommended the following changes to the proposed 
designation of biobased interior paints and coatings for preferred 
Federal procurement:
    The subcategories should be based on their differentiated use and 
performance specifications. Allowing for the inclusion of latex paints 
will lead to wider adoption and use of biobased products in the 
interior paints and coatings category.
    The commenter believes that a level of 67 percent biobased content 
is appropriate for the interior oil-based and alkyd paints and coatings 
subcategory, but the level for the interior latex and latex-hybrid 
paints and coatings should be approximately 20 percent biobased carbon 
content.
    The commenter also stated that the 100 percent biobased content 
level found in product MXF6-0004 should not be used to determine the 
minimum biobased content for interior paints and coatings or either of 
the proposed subcategories because this type of coating is not feasible 
for use and this product was not tested for biobased content as it is 
intended to be used. The commenter stated that, when used as instructed 
by the manufacture in the product description, the biobased content of 
the full painting system will

[[Page 43814]]

be significantly lower. While the milk-paint base itself is biobased, 
according to the product description provided by the USDA, it requires 
mixing with an adhesive in order to adhere to non-porous surfaces (e.g. 
any previously painted surfaces). Milk-paint manufactures also 
typically recommend using an acrylic top-coat for durability. The 
commenter stated that, since the adhesive is a necessary part of the 
``coating'' to insure adhesion to the substrate, it must be included in 
any determination of biobased content.
    Response: USDA considered the information provided by the 
commenter, reviewed the data previously collected on this proposed 
item, and also researched other coating-related information available 
on the Internet. USDA agrees with the commenter that the proposed item 
should include at least two subcategories based on two fundamentally 
different coating technologies.
    USDA found that within the broad category of interior paints and 
coatings all products can be categorized at the highest level as either 
waterborne or solventborne. As the names imply, the products can be 
divided into those that use water as the ``carrier'' liquid and those 
that use a solvent other than water (e.g., typically petroleum-based 
solvents). Waterborne coatings have traditionally been formulated as an 
emulsion of petroleum based acrylic resins in water. These coatings 
were low in VOC content, but did not contain biobased components. 
Solventborne coatings have traditionally been formulated as plant based 
(soy, linseed, castor) alkyd resins in petroleum based solvents. These 
coatings have a much higher VOC content, but do include a biobased 
component.
    Recent advances in coating technology have resulted in the 
formulation of waterborne coatings that include varying levels of plant 
based alkyd resins. Thus, there are now biobased alternatives within 
both the waterborne and solventborne coating types. While solventborne 
alkyd coatings still generally contain a much higher biobased content, 
waterborne coatings with a significant biobased content are becoming 
increasingly popular. The commenter reported selling a line of 
waterborne coating products with at least 20 percent biobased content. 
USDA also contacted a major resin manufacturer who confirmed that their 
products are used in waterborne alkyd coatings containing biobased 
contents in the 20 to 30 percent range.
    USDA agrees with the commenter that other types of coatings, such 
as the milk-paint discussed by the commenter, are not generally 
representative of the coating technologies that dominate the interior 
coatings market. While various other types of coating technologies are 
available, their use is very specialized and the volumes that would 
potentially be purchased by Federal procurement officials is negligible 
compared to waterborne and solventborne coatings. USDA has, therefore, 
not considered these specialty coatings in establishing subcategories 
for this item. However, to the extent that any of these specialty 
coatings fall within the subcategories established in today's final 
rule, they would be eligible for the same consideration for preferred 
procurement as more traditional coatings.
    For the reasons presented above, USDA has decided to create two 
subcategories within the interior paints and coatings item. USDA 
recognizes that there are many factors for purchasing officials to 
consider when purchasing interior paints and coatings. Procurement 
decisions must be made considering applicable VOC regulations as well 
as a long list of necessary coating performance characteristics. 
Creating two subcategories within the interior paints and coatings item 
allows USDA to acknowledge the differences between the two basic 
coating types and also to set minimum biobased contents that are 
representative of each type. In the final rule, the two subcategories 
are: (1) Interior latex and waterborne alkyd paints and coatings, and 
(2) interior oil-based and solventborne alkyd paints and coatings. The 
minimum biobased content of the first subcategory is 20 percent and the 
minimum biobased content of the second subcategory is 67 percent. USDA 
believes that these minimum biobased contents will result in procuring 
officials being able to select from a sufficiently large number of 
products to ensure that their performance needs can be met.
    Comment: One commenter stated that, under E.O. 13423 and 13514, 
Federal agencies are using interior paints with no or low VOC content 
as part of their high performance sustainable building efforts. For 
some agencies, the use of no- or low-VOC paints is necessary to help 
meet air non-attainment area requirements. USDA should address the VOC 
content of biobased paints and whether the use of these products is 
consistent with agency efforts to reduce their use of VOC-containing 
products.
    Response: As discussed in the response to the previous comment, 
USDA has subcategorized the interior paints and coatings item into two 
subcategories. The two subcategories can generally be described as 
being either waterborne (the latex and waterborne alkyds subcategory) 
or solventborne (the oil-based and solventborne alkyds subcategory). 
Waterborne coatings, as the name implies, use water as the carrier for 
the resins and pigments. Solventborne coatings use an organic solvent 
(typically a petroleum-derived solvent) as the carrier. The vast 
majority of coatings used in the interior paints and coatings market 
are waterborne coatings and one of the primary driving factors in the 
emergence of waterborne technology was the low organic solvent content 
of these coatings. Not only do these coatings meet VOC requirements, 
they are fast drying and low in odor. Solventborne coatings are 
typically used as primers and for wood trim, cabinets, and furniture. 
They are used primarily for their hardness, smooth application, and 
higher gloss levels. Because they contain organic solvents, however, 
these coatings may not meet VOC regulations in some geographical 
regions.
    USDA agrees with the commenter that the use of low VOC coatings is 
an important consideration in many Federal agency's environmental 
programs. USDA recommends that purchasing officials first consider the 
performance and environmental concerns when deciding whether to 
purchase waterborne or solventborne coatings. Once that decision is 
made, purchasing officials must determine whether the available 
biobased alternatives within each coating type meet their performance 
and cost criteria.

Slide Way Lubricants

    Comment: One commenter stated that the proposed designation of 
slide way lubricants does not overlap with EPA's designation of re-
refined lubricating oils. The commenter stated that the EPA designation 
applies to engine lubricants, hydraulic fluids, and gear oils.
    Response: USDA thanks the commenter for the comment. USDA 
reconsidered the potential for an overlap and agrees that slide way 
lubricants do not overlap with EPA's designated re-refined lubricating 
oil. USDA has removed the discussion of the potential overlap for this 
item from the final rule.

Thermal Shipping Containers

    Comment: One commenter stated that this proposed category has two 
subcategories with only one manufacturer and that USDA is proposing to 
defer the compliance date until additional manufacturers are 
identified. The commenter suggests that

[[Page 43815]]

in future rounds it may be preferable to hold off designating an item 
until more than one manufacturer is identified.
    Response: 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), states that USDA shall ``* * * designate those 
items (including finished products) that are or can be produced with 
biobased products (including biobased products for which there is only 
a single product or manufacturer in the category) that will be subject 
to the preference described in paragraph (2) * * *''. Thus, USDA does 
not agree that it should defer designating an item until more than one 
manufacturer is identified.

V. Regulatory Information

A. Executive Order 12866: Regulatory Planning and Review

    Executive Order 12866 requires agencies to determine whether a 
regulatory action is ``significant.'' The Order defines a ``significant 
regulatory action'' as one that is likely to result in a rule that may: 
``(1) Have an annual effect on the economy of $100 million or more or 
adversely affect, in a material way, the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) Create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) Materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in this Executive 
Order.''
    Today's final rule has been determined by the Office of Management 
and Budget to be not significant for purposes of Executive Order 12866. 
We are not able to quantify the annual economic effect associated with 
today's final rule. As discussed earlier in this preamble, USDA made 
extensive efforts to obtain information on the Federal agencies' usage 
within the 14 designated items, including their subcategories. These 
efforts were largely unsuccessful. Therefore, attempts to determine the 
economic impacts of today's final rule would require estimation of the 
anticipated market penetration of biobased products based upon many 
assumptions. In addition, because agencies have the option of not 
purchasing designated items if price is ``unreasonable,'' the product 
is not readily available, or the product does not demonstrate necessary 
performance characteristics, certain assumptions may not be valid. 
While facing these quantitative challenges, USDA relied upon a 
qualitative assessment to determine the impacts of today's final rule. 
Consideration was also given to the fact that agencies may choose not 
to procure designated items due to unreasonable price.
1. Summary of Impacts
    Today's final rule is expected to have both positive and negative 
impacts to 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 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. USDA is unable to determine the number 
of businesses, including small businesses, that may be adversely 
affected by today's final rule. The final rule, however, will not 
affect existing purchase orders, nor will it preclude businesses from 
modifying their product lines to meet new requirements for designated 
biobased products. Because the extent to which procuring agencies will 
find the performance, availability and/or price of biobased products 
acceptable is unknown, it is impossible to quantify the actual economic 
effect of the rule.
2. Benefits of the Final Rule
    The designation of these 14 items provides the benefits outlined in 
the objectives of section 9002; to increase domestic demand for many 
agricultural commodities that can serve as feedstocks for production of 
biobased products, and to spur development of the industrial base 
through value-added agricultural processing and manufacturing in rural 
communities. On a national and regional level, today's final rule can 
result in expanding and strengthening markets for biobased materials 
used in these items.
3. Costs of the Final Rule
    Like the benefits, the costs of today's final rule have not been 
quantified. Two types of costs are involved: Costs to producers of 
products that will compete with the preferred products and costs to 
Federal agencies to provide procurement preference for the preferred 
products. Producers of competing products may face a decrease in demand 
for their products to the extent Federal agencies refrain from 
purchasing their products. However, it is not known to what extent this 
may occur. Pre-award procurement costs for Federal agencies may rise 
minimally as the contracting officials conduct market research to 
evaluate the performance, availability and price reasonableness of 
preferred products before making a purchase.

B. Regulatory Flexibility Act (RFA)

    The RFA, 5 U.S.C. 601-602, generally requires an agency to prepare 
a regulatory flexibility analysis of any rule subject to notice and 
comment rulemaking requirements under the Administrative Procedure Act 
or any other statute unless the agency certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    USDA evaluated the potential impacts of its designation of these 
items to determine whether its actions would have a significant impact 
on a substantial number of small entities. Because the preferred 
procurement program established under section 9002 applies only to 
Federal agencies and their contractors, small governmental (city, 
county, etc.) agencies are not affected. Thus, the proposal, if 
promulgated, will not have a significant economic impact on small 
governmental jurisdictions.
    USDA anticipates that this program will affect entities, both large 
and small, that manufacture or sell biobased products. For example, the 
designation of items for preferred procurement will provide additional 
opportunities for businesses to manufacture and sell biobased products 
to Federal agencies and their contractors. Similar opportunities will 
be provided for entities that supply biobased materials to 
manufacturers.
    The intent of section 9002 is largely to stimulate the production 
of new biobased products and to energize emerging markets for those 
products. Because the program is still in its infancy, however, it is 
unknown how many businesses will ultimately be affected. While USDA has 
no data on the number of small businesses that may choose to develop 
and market biobased products within the items designated by this 
rulemaking, the number is expected to be small. Because biobased 
products represent a small emerging market, only a small percentage of 
all manufacturers,

[[Page 43816]]

large or small, are expected to develop and market biobased products. 
Thus, the number of small businesses manufacturing biobased products 
affected by this rulemaking is not expected to be substantial.
    The preferred procurement program may decrease opportunities for 
businesses that manufacture or sell non-biobased products or provide 
components for the manufacturing of such products. Most manufacturers 
of non-biobased products within the items being designated for 
preferred procurement in this rule are expected to be included under 
the following NAICS codes: 324191 (petroleum lubricating oil and grease 
manufacturing), 325320 (pesticide and other agricultural chemical 
manufacturing), 325412 (pharmaceutical preparation manufacturing), 
325510 (paint and coating manufacturing), 325611 (soap and other 
detergent manufacturing), 325612 (polish and other sanitation goods 
manufacturing), 325620 (toilet preparation manufacturing), 325998 
(other miscellaneous chemical products and preparation manufacturing), 
326150 (urethane and other foam product manufacturing), and 314999 
(other miscellaneous textile mill products). USDA obtained information 
on these 10 NAICS categories from the U.S. Census Bureau's Economic 
Census database. USDA found that the Economic Census reports about 
8,092 companies within these 10 NAICS categories and that these 
companies own a total of about 9,255 establishments. Thus, the average 
number of establishments per company is about 1.1. The Census data also 
reported that of the 9,255 individual establishments, about 9,119 (98.5 
percent) have fewer than 500 employees. USDA also found that the 
overall average number of employees per company among these industries 
is about 58, with only one segment reporting an average of more than 
100 employees (the pharmaceutical preparation industry segment at about 
250 employees per company). Thus, nearly all of the businesses fall 
within the Small Business Administration's definition of a small 
business (fewer than 500 employees, in most NAICS categories).
    USDA does not have data on the potential adverse impacts on 
manufacturers of non-biobased products within the items being 
designated, but believes that the impact will not be significant. Most 
of the items being designated in this rulemaking are typical consumer 
products widely used by the general public and by industrial/commercial 
establishments that are not subject to this rulemaking. Thus, USDA 
believes that the number of small businesses manufacturing non-biobased 
products within the items being designated and selling significant 
quantities of those products to government agencies affected by this 
rulemaking to be relatively low. Also, this final rule will not affect 
existing purchase orders and it will not preclude procuring agencies 
from continuing to purchase non-biobased items when biobased items do 
not meet the availability, performance, or reasonable price criteria. 
This final rule will also not preclude businesses from modifying their 
product lines to meet new specifications or solicitation requirements 
for these products containing biobased materials.
    After considering the economic impacts of this final rule on small 
entities, USDA certifies that this action will not have a significant 
economic impact on a substantial number of small entities.
    While not a factor relevant to determining whether the final rule 
will have a significant impact for RFA purposes, USDA has concluded 
that the effect of the rule will be to provide positive opportunities 
to businesses engaged in the manufacture of these biobased products. 
Purchase and use of these biobased products by procuring agencies 
increase demand for these products and result in private sector 
development of new technologies, creating business and employment 
opportunities that enhance local, regional, and national economies.

C. Executive Order 12630: Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This final rule has been reviewed in accordance with Executive 
Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights, and does not contain 
policies that would have implications for these rights.

D. Executive Order 12988: Civil Justice Reform

    This rule has been reviewed in accordance with Executive Order 
12988, Civil Justice Reform. This rule does not preempt State or local 
laws, is not intended to have retroactive effect, and does not involve 
administrative appeals.

E. Executive Order 13132: Federalism

    This final rule does not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment. Provisions of this 
final rule will not have a substantial direct effect on States or their 
political subdivisions or on the distribution of power and 
responsibilities among the various government levels.

F. Unfunded Mandates Reform Act of 1995

    This final rule contains no Federal mandates under the regulatory 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal governments, 
or the private sector. Therefore, a statement under section 202 of UMRA 
is not required.

G. Executive Order 12372: Intergovernmental Review of Federal Programs

    For the reasons set forth in the Final Rule Related Notice for 7 
CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is 
excluded from the scope of Executive Order 12372, which requires 
intergovernmental consultation with State and local officials. This 
program does not directly affect State and local governments.

H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Today's final rule does not significantly or uniquely affect ``one 
or more Indian tribes, * * * the relationship between the Feder