Designation of Product Categories for Federal Procurement, 56884-56903 [2011-23067]

Agencies

• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 76, Number 178 (Wednesday, September 14, 2011)]
[Proposed Rules]
[Pages 56884-56903]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23067]



[[Page 56883]]

Vol. 76

Wednesday,

No. 178

September 14, 2011

Part II





Department of Agriculture





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7 CFR Part 3201





Designation of Product Categories for Federal Procurement; Proposed 
Rule

Federal Register / Vol. 76, No. 178 / Wednesday, September 14, 2011 / 
Proposed Rules

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DEPARTMENT OF AGRICULTURE

7 CFR Part 3201

RIN 0599-AA14


Designation of Product Categories for Federal Procurement

AGENCY: Office of Procurement and Property Management, USDA.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to 
amend the Guidelines for Designating Biobased Products for Federal 
Procurement (Guidelines) to add 13 sections that will designate the 
following product categories within which biobased products would be 
afforded Federal procurement preference: Air fresheners and 
deodorizers; asphalt and tar removers; asphalt restorers; blast media; 
candles and wax melts; electronic components cleaners; floor coverings 
(non-carpet); foot care products; furniture cleaners and protectors; 
inks; packaging and insulating materials; pneumatic equipment 
lubricants; and wood and concrete stains. USDA is also proposing 
minimum biobased contents for each of these product categories.

DATES: USDA will accept public comments on this proposed rule until 
November 14, 2011.

ADDRESSES: You may submit comments by any of the following methods. All 
submissions received must include the agency name and Regulatory 
Information Number (RIN). The RIN for this rulemaking is 0599-AA14. 
Also, please identify submittals as pertaining to the ``Proposed 
Designation of Product Categories.''
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: biopreferred@usda.gov. Include RIN number 0599-
AA14 and ``Proposed Designation of Product Categories'' on the subject 
line. Please include your name and address in your message.
     Mail/commercial/hand delivery: Mail or deliver your 
comments to: Ron Buckhalt, USDA, Office of Procurement and Property 
Management, Room 361, Reporters Building, 300 7th St., SW., Washington, 
DC 20024.
     Persons with disabilities who require alternative means 
for communication for regulatory information (Braille, large print, 
audiotape, etc.) should contact the USDA TARGET Center at (202) 720-
2600 (voice) and (202) 690-0942 (TTY).

FOR FURTHER INFORMATION CONTACT: Ron Buckhalt, USDA, Office of 
Procurement and Property Management, Room 361, Reporters Building, 300 
7th St., SW., Washington, DC 20024; e-mail: biopreferred@usda.gov; 
phone (202) 205-4008. Information regarding the Federal biobased 
products preferred procurement program (one part of the BioPreferred 
Program) is available on the Internet at https://www.biopreferred.gov.

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

I. Authority
II. Background
III. Summary of Today's Proposed Rule
IV. Designation of Product Categories, Minimum Biobased Contents, 
and Time Frame
    A. Background
    B. Product Categories Proposed for Designation
    C. Minimum Biobased Contents
    D. Compliance Date for Procurement Preference and Incorporation 
Into Specifications
V. Where can agencies get more information on these USDA-designated 
product categories?
VI. Regulatory Information
    A. Executive Order 12866: Regulatory Planning and Review
    B. Regulatory Flexibility Act (RFA)
    C. Executive Order 12630: Governmental Actions and Interference 
With Constitutionally Protected Property Rights
    D. Executive Order 13132: Federalism
    E. Unfunded Mandates Reform Act of 1995
    F. Executive Order 12372: Intergovernmental Review of Federal 
Programs
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Paperwork Reduction Act
    I. E-Government Act

I. Authority

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

II. Background

    Section 9002 provides for the preferred procurement of biobased 
products by Federal procuring agencies and is referred to hereafter in 
this Federal Register notice as the ``Federal preferred procurement 
program.'' The definition of ``procuring agency'' in section 9002 
includes both Federal agencies and ``a person that is a party to a 
contract with any Federal agency, with respect to work performed under 
such a contract.'' Thus, Federal contractors, as well as Federal 
agencies, are expressly subject to the procurement preference 
provisions of section 9002.
    The term ``product category'' is used in the designation process to 
mean a generic grouping of specific products that perform a similar 
function, such as the various brands of foot care products or furniture 
cleaners. Once USDA designates a product category, procuring agencies 
are required generally to purchase biobased products within these 
designated product categories where the purchase price of the 
procurement product exceeds $10,000 or where the quantity of such 
products or the functionally equivalent products purchased over the 
preceding fiscal year equaled $10,000 or more. Procuring agencies must 
procure biobased products within each product category unless they 
determine that products within a product category are not reasonably 
available within a reasonable period of time, fail to meet the 
reasonable performance standards of the procuring agencies, or are 
available only at an unreasonable price. As stated in 7 CFR part 3201--
``Guidelines for Designating Biobased Products for Federal 
Procurement'' (Guidelines), biobased products that are merely 
incidental to Federal funding are excluded from the Federal preferred 
procurement program; that is, the requirements to purchase biobased 
products do not apply to such purchases if they are unrelated to or 
incidental to the purpose of the Federal contract. In implementing the 
Federal preferred procurement program for biobased products, procuring 
agencies should follow their procurement rules and Office of Federal 
Procurement Policy guidance on buying non-biobased products when 
biobased products exist and should document exceptions taken for price, 
performance, and availability.
    USDA recognizes that the performance needs for a given application 
are important criteria in making procurement decisions. USDA is not 
requiring procuring agencies to limit their choices to biobased 
products that fall under the product categories proposed for 
designation in this proposed rule. Rather, the effect of the 
designation of the product categories is to require procuring agencies 
to determine their performance needs, determine whether there are 
qualified biobased products that fall under the designated product 
categories that meet the reasonable performance standards for those 
needs, and purchase such qualified biobased products to the maximum 
extent practicable as required by section 9002.

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    Section 9002(a)(3)(B) requires USDA to provide information to 
procuring agencies on the availability, relative price, performance, 
and environmental and public health benefits of such product categories 
and to recommend, where appropriate, the minimum level of biobased 
content to be contained in the procured products.
    Subcategorization. Most of the product categories USDA is 
considering for designation for Federal preferred procurement cover a 
wide range of products. For some product categories, there are 
subgroups of products that meet different requirements, uses and/or 
different performance specifications. For example, within the product 
category ``hand cleaners and sanitizers,'' products that are used in 
medical offices may be required to meet performance specifications for 
sanitizing, while other products that are intended for general purpose 
hand washing may not need to meet these specifications. Where such 
subgroups exist, USDA intends to create subcategories. Thus, for 
example, for the product category ``hand cleaners and sanitizers,'' 
USDA determined that it was reasonable to create a ``hand cleaner'' 
subcategory and a ``hand sanitizer'' subcategory. Sanitizing 
specifications are applicable to the latter subcategory, but not the 
former. In sum, USDA looks at the products within each product category 
to evaluate whether there are groups of products within the category 
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 product categories, however, USDA may not have sufficient 
information at the time of proposal to create subcategories. For 
example, USDA may know that there are different performance 
specifications that furniture cleaners and protectors are required to 
meet, but it may have information on only one type of furniture 
cleaner. In such instances, USDA may either designate the product 
category without creating subcategories (i.e., defer the creation of 
subcategories) or designate one subcategory and defer designation of 
other subcategories within the product category 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 final rulemaking 
process.
    Within today's proposed rule, USDA is proposing to subcategorize 
one of the product categories. That product category is inks and the 
proposed subcategories are: Specialty inks used to add extra 
characteristics or features to printed material; inks used for coated 
paper, paperboard, plastic, and foil (sheetfed--color and sheetfed--
black); inks used in photocopying and laser machines (printer toner--
<25 pages per minute (ppm) and printer toner-->=25 ppm); and inks used 
primarily in newsprint (news). In addition, public comments and 
additional data are being requested for several other product 
categories and subcategories may be created in a future rulemaking.
    Minimum Biobased Contents. The minimum biobased contents being 
proposed with today's rule are based on products for which USDA has 
biobased content test data. Because the submission of product samples 
for biobased content testing is on a strictly voluntary basis, USDA was 
able to obtain samples only from those manufacturers who volunteered to 
invest the resources required to submit the samples.
    In addition to considering the biobased content test data for each 
product category, USDA also considers other factors including product 
performance information. USDA evaluates this information to determine 
whether some products that may have a lower biobased content also have 
unique performance or applicability attributes that would justify 
setting the minimum biobased content at a level that would include 
these products. For example, a lubricant product that has a lower 
biobased content than others within a product category but is 
formulated to perform over a wider temperature range than the other 
products may be more desirable to Federal agencies. Thus, it would be 
beneficial to set the minimum biobased content for the product category 
at a level that would include the product with superior performance 
features.
    USDA also considers the overall range of the tested biobased 
contents within a product category, groupings of similar values, and 
breaks (significant gaps between two groups of values) in the biobased 
content test data array. For example, the biobased contents of five 
tested products within a product category being proposed for 
designation today are 14, 46, 100, 100, and 100 percent. Because this 
is a very wide range, and because there is a significant gap in the 
data between the 46 percent biobased product and the 100 percent 
biobased products, USDA reviewed the product literature to determine 
whether subcategories could be created within this product category. 
USDA found that the available product information did not justify 
subcategorization. Further, USDA did not find any performance claims 
that would justify setting the minimum biobased content based on the 14 
or 46 percent biobased content products. Thus, USDA is proposing to set 
the minimum biobased content for this product category based on the 
product with a tested biobased content of 100 percent. USDA believes 
that this evaluation process allows it to establish minimum biobased 
contents based on a broad set of factors to assist the Federal 
procurement community in its decisions to purchase biobased products.
    USDA makes every effort to obtain biobased content test data on 
multiple products within each product category. For most designated 
product categories, USDA has biobased content test data on more than 
one product within the category. However, in some cases, USDA has been 
able to obtain biobased content data for only a single product within a 
designated product category. As USDA obtains additional data on the 
biobased contents for products within these designated product 
categories or their subcategories, USDA will evaluate whether the 
minimum biobased content for a designated product category or 
subcategory will be revised.
    USDA anticipates that the minimum biobased content of a product 
category that is based on a single product is more likely to change as 
additional products within that category are identified and tested. In 
today's proposed rule, the minimum biobased contents for the ``inks 
(printer toner-->=25 ppm)'' and the ``inks (news)'' subcategories of 
the inks product category are based on a single tested product within 
each subcategory. Based on discussions with industry stakeholders, USDA 
believes that the tested products are representative of other products 
within the subcategories, but has been unable to obtain additional 
products for testing. In addition to requesting comments on the 
appropriateness of the proposed minimum biobased contents for these 
subcategories, USDA requests that stakeholders provide biobased content 
data on their products.
    Where USDA receives additional biobased content test data for 
products within these proposed product categories during the public 
comment period, USDA will take that information into consideration when 
establishing the minimum biobased content when the product categories 
are designated in the final rulemaking.
    Overlap with EPA's Comprehensive Procurement Guideline program for 
recovered content products under the Resource Conservation and Recovery

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Act (RCRA) Section 6002. Some of the products that are within biobased 
product categories designated for Federal preferred procurement under 
this program may also be within categories 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 review 
available information on a product's biobased content and its profile 
against environmental and health measures and life-cycle costs (the 
ASTM Standard D7075, ``Standard Practice for Evaluating and Reporting 
Environmental Performance of Biobased Products,'' or the Building for 
Environmental and Economic Sustainability (BEES) analysis for 
evaluating and reporting on environmental performance of biobased 
products). Federal agencies may then use this information to make 
purchasing decisions based on the sustainability features of the 
products. Detailed information on ASTM Standard D7075, and other ASTM 
standards, can be found on ASTM's Web site at https://www.astm.org. 
Information on the BEES analytical tool can be found on the Web site 
https://www.bfrl.nist.gov/oae/software/bees.html.
    Section 6002 of RCRA requires a procuring agency procuring a 
product designated by EPA generally to procure such a product composed 
of the highest percentage of recovered materials content practicable. 
However, a procuring agency may decide not to procure such a product 
based on a determination that it fails to meet the reasonable 
performance standards or specifications of the procuring agency. A 
product with recovered materials content may not meet reasonable 
performance standards or specifications, for example, if the use of the 
product with recovered materials content would jeopardize the intended 
end use of the product.
    Where a biobased product is used for the same purposes and to meet 
the same Federal agency performance requirements as an EPA-designated 
recovered content product, the Federal agency must purchase the 
recovered content product. For example, if a biobased hydraulic fluid 
is to be used as a fluid in hydraulic systems and because ``lubricating 
oils containing re-refined oil'' has already been designated by EPA for 
that purpose, then the Federal agency must purchase the EPA-designated 
recovered content product, ``lubricating oils containing re-refined 
oil.'' If, on the other hand, that biobased hydraulic fluid is to be 
used to address a Federal agency's certain environmental or health 
performance requirements that the EPA-designated recovered content 
product would not meet, then the biobased product should be given 
preference, subject to reasonable price, availability, and performance 
considerations.
    This proposed rule designates three product categories for Federal 
preferred procurement for which there may be overlap with an EPA-
designated recovered content product. The first is blast media, which 
may overlap with the EPA-designated recovered content product 
``Miscellaneous products--blasting grit.'' The second is floor 
coverings (non-carpet), which may overlap with the EPA-designated 
recovered content product ``Floor tiles.'' The third is pneumatic 
equipment lubricants, which may overlap with the EPA-designated 
recovered content product ``Re-refined lubricating oils.'' EPA provides 
recovered materials content recommendations for these recovered content 
products in Recovered Materials Advisory Notice (RMAN) I. The RMAN 
recommendations for these CPG products can be found by accessing EPA's 
Web site https://www.epa.gov/epaoswer/non-hw/procure/products.htm and 
then clicking on the appropriate product name.
    Federal Government Purchase of Sustainable Products. The Federal 
government's sustainable purchasing program includes the following 
three statutory preference programs for designated products: the 
BioPreferred Program, the EPA's Comprehensive Procurement Guideline for 
products containing recovered materials, and the Environmentally 
Preferable Purchasing program. The Office of the Federal Environmental 
Executive (OFEE) and the Office of Management and Budget (OMB) 
encourage agencies to implement these components comprehensively when 
purchasing products and services.
    Procuring agencies should note that not all biobased products are 
``environmentally preferable.'' For example, unless cleaning products 
contain no or reduced levels of metals and toxic and hazardous 
constituents, they can be harmful to aquatic life, the environment, 
and/or workers. Household cleaning products that are formulated to be 
disinfectants are required, under the Federal Insecticide, Fungicide 
and Rodenticide Act (FIFRA), to be registered with EPA and must meet 
specific labeling requirements warning of the potential risks 
associated with misuse of such products. When purchasing 
environmentally preferable cleaning products, many Federal agencies 
specify that products must meet Green Seal standards for institutional 
cleaning products or that the products have been reformulated in 
accordance with recommendations from the EPA's Design for the 
Environment (DfE) program. Both the Green Seal standards and the DfE 
program identify chemicals of concern in cleaning products. These 
include zinc and other metals, formaldehyde, ammonia, alkyl phenol 
ethoxylates, ethylene glycol, and volatile organic compounds. In 
addition, both require that cleaning products have neutral or less 
caustic pH.
    In contrast, some biobased products may be more environmentally 
preferable than some products that meet Green Seal standards for 
institutional cleaning products or that have been reformulated in 
accordance with EPA's DfE program. To fully compare products, one must 
look at the ``cradle-to-grave'' impacts of the manufacture, use, and 
disposal of products. Biobased products that will be available for 
Federal 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.

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    Manufacturers of qualifying biobased products designated under the 
Federal 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 Federal Preferred Procurement Programs. Federal procurement 
officials should also note that biobased products may be available for 
purchase by Federal agencies through the AbilityOne Program (formerly 
known as the Javits-Wagner-O'Day (JWOD) program). Under this program, 
members of organizations including the National Industries for the 
Blind (NIB) and the National Institute for the Severely Handicapped 
(NISH) offer products and services for preferred procurement by Federal 
agencies. A search of the AbilityOne Program's online catalog (https://www.abilityone.gov) indicated that four of the product categories being 
proposed today (air fresheners and deodorizers, blast media, floor 
coverings, and inks (printer toner--<25 ppm)) are available through the 
AbilityOne Program. While there is no specific product within these 
product categories 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 product categories 
being proposed for designation today may be available through the 
AbilityOne Program in the future. Procurement of biobased products 
through the AbilityOne Program would further the objectives of both the 
AbilityOne Program and the Federal preferred procurement program.
    Outreach. To augment its own research, USDA consults with industry 
and Federal stakeholders to the Federal preferred procurement program 
during the development of the rulemaking packages for the designation 
of product categories. USDA consults with stakeholders to gather 
information used in determining the order of product category 
designation and in identifying: Manufacturers producing and marketing 
products that fall within a product category 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 product categories. 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 product categories for designation 
for Federal preferred procurement.
    In the preamble to the first six product categories designated for 
Federal preferred procurement (71 FR 13686, March 16, 2006), USDA 
stated that it planned to identify approximately 10 product categories 
in each future rulemaking. In an effort to finalize the designation of 
more product categories in a shorter time period, USDA now plans to 
increase the number of product categories in each rulemaking, whenever 
possible. Thus, today's proposed rulemaking would designate 13 product 
categories for Federal preferred procurement.
    USDA has developed a preliminary list of product categories for 
future designation and has posted this preliminary list on the 
BioPreferred Web site. While this list presents an initial 
prioritization of product categories for designation, USDA cannot 
identify with certainty which product categories 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 
product categories 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, 
product categories with high biobased content and for which sufficient 
technical information can be obtained quickly may be added or moved up 
on the prioritization list. USDA intends to update the list of product 
categories for future designation on the BioPreferred Web site every 
six months, or more often if significant changes are made to the list.

III. Summary of Today's Proposed Rule

    USDA is proposing to designate the following product categories for 
Federal preferred procurement: Air fresheners and deodorizers; asphalt 
and tar removers; asphalt restorers; blast media; candles and wax 
melts; electronic components cleaners; floor coverings (non-carpet); 
foot care products; furniture cleaners and protectors; inks, including 
specialty inks, inks (sheetfed--color), inks (sheetfed--black), inks 
(printer toner--<25 ppm), inks (printer toner-->=25 ppm), and inks 
(news) as subcategories; packaging and insulating materials; pneumatic 
equipment lubricants; and wood and concrete stains. USDA is also 
proposing minimum biobased content for each of these product 
categories. Lastly, USDA is proposing a date by which Federal agencies 
must incorporate these designated product categories into their 
procurement specifications (see Section IV.D).
    In today's proposed rule, USDA is providing information on its 
findings as to the availability, economic and technical feasibility, 
environmental and public health benefits, and life-cycle costs for each 
of the designated product categories. Information on the availability, 
relative price, performance, and environmental and public health 
benefits of individual products within each of these product categories 
is not presented in this notice. Further, USDA has reached an 
understanding with manufacturers not to publish their names in 
conjunction with specific product data published in the Federal 
Register when designating product categories. This understanding was 
reached to encourage manufacturers to submit products for testing to 
support the designation of a product category. Once a product category 
has been designated, USDA will encourage the manufacturers of products 
within the product category to voluntarily make their names and other 
contact information available for the BioPreferred Web site.
    Warranties. Some of the product categories being proposed for 
designation today may affect original equipment manufacturers (OEMs) 
warranties for equipment in which the product categories are used. For 
example, the manufacturer of a piece of equipment that requires 
lubrication typically includes a list of recommended lubricants in the 
owner/operators manual that accompanies the equipment when purchased. 
If the purchaser of the equipment uses a lubricant (including a 
biobased lubricant) that is not among the lubricants recommended by the 
equipment manufacturer, the manufacturer may cite that as a reason not 
to honor the warranty on the equipment. At this time, USDA does not

[[Page 56888]]

have information available as to the extent that OEMs have included, or 
will include, biobased products among their recommended lubricants (or 
other similar operating components). This does not necessarily mean 
that use of biobased products will void warranties, only that USDA does 
not currently have such information. USDA is requesting comments and 
information on this topic, but cannot be held responsible if damage 
were to occur. USDA encourages manufacturers of biobased products to 
test their products against all relevant standards, including those 
that affect warranties, and to work with OEMs to ensure that biobased 
products are accepted and recommended for use. Whenever manufacturers 
of biobased products find that existing performance standards for 
warranties are not relevant or appropriate for biobased products, USDA 
is willing to assist them in working with the appropriate OEMs to 
develop tests that are relevant and appropriate for the end uses in 
which biobased products are intended. In addition to outreach to 
biobased product manufacturers and Federal agencies, USDA will, as time 
and resources allow, work with OEMs on addressing any effect the use of 
biobased products may have on their warranties. If, in spite of these 
efforts, there is insufficient information regarding the use of a 
biobased product and its effect on warranties, the procurement agent 
would not be required to buy such a product. As information is 
available on warranties, USDA will make such information available on 
the BioPreferred Web site.
    Additional Information. USDA is working with manufacturers and 
vendors to make all relevant product and manufacturer contact 
information available on the BioPreferred Web site before a procuring 
agency asks for it, in order to make the Federal preferred procurement 
program more efficient. Steps USDA has implemented, or will implement, 
include: Making direct contact with submitting companies through e-mail 
and phone conversations to encourage completion of product listing; 
coordinating outreach efforts with intermediate material producers to 
encourage participation of their customer base; conducting targeted 
outreach with industry and commodity groups to educate stakeholders on 
the importance of providing complete product information; participating 
in industry conferences and meetings to educate companies on program 
benefits and requirements; and communicating the potential for expanded 
markets beyond the Federal government to include State and local 
governments, as well as the general public markets. Section V provides 
instructions to agencies on how to obtain this information on products 
within these product categories through the following Web site: https://www.biopreferred.gov.
    Comments. USDA invites comment on the proposed designation of these 
product categories, including the definition, proposed minimum biobased 
content, and any of the relevant analyses performed during the 
selection of these product categories. In addition, USDA invites 
comments and information in the following areas:
    1. Three of the product categories being proposed for designation 
(blast media, floor coverings, and pneumatic equipment lubricants) may 
overlap with products designated under EPA's Comprehensive Procurement 
Guideline for products containing recovered material. To help procuring 
agencies in making their purchasing decisions between biobased products 
within the proposed designated product categories that overlap with 
products containing recovered material, USDA is requesting product-
specific information on unique performance attributes, environmental 
and human health effects, disposal costs, and other attributes that 
would distinguish biobased products from products containing recovered 
material as well as non-biobased products.
    2. We have attempted to identify relevant and appropriate 
performance standards and other relevant measures of performance for 
each of the proposed product categories. If you know of other such 
standards or relevant measures of performance for any of the proposed 
product categories, USDA requests that you submit information 
identifying such standards and measures, including their name (and 
other identifying information as necessary), identifying who is using 
the standard/measure, and describing the circumstances under which the 
product is being used.
    3. Many biobased products within the product categories being 
proposed for designation will have positive environmental and human 
health attributes. USDA is seeking comments on such attributes in order 
to provide additional information on the BioPreferred Web site. This 
information will then be available to Federal procuring agencies and 
will assist them in making informed sustainable procurement decisions. 
When possible, please provide appropriate documentation to support the 
environmental and human health attributes you describe.
    4. Several product categories (e.g., air fresheners and 
deodorizers, electronic components cleaners, floor coverings, inks, and 
wood and concrete stains) have wide ranges of tested biobased contents. 
For the reasons discussed later in this preamble, USDA is proposing a 
minimum biobased content that would allow many of the tested products 
to be eligible for Federal preferred procurement. USDA welcomes 
comments on the appropriateness of the proposed minimum biobased 
contents for these product categories and whether there are potential 
subcategories within the product categories that should be considered.
    5. As discussed above, the effect that the use of biobased products 
may have on original equipment manufacturers' warranties is uncertain. 
USDA requests comments and supporting information on any aspect of this 
issue.
    6. Today's proposed rule is expected to have both positive and 
negative impacts on individual businesses, including small businesses. 
USDA anticipates that the biobased Federal preferred procurement 
program will provide additional opportunities for businesses and 
manufacturers to begin supplying products under the proposed designated 
biobased product categories to Federal agencies and their contractors. 
However, other businesses and manufacturers that supply only non-
qualifying products and do not offer biobased alternatives may 
experience a decrease in demand from Federal agencies and their 
contractors. Because USDA has been unable to determine the number of 
businesses, including small businesses, that may be adversely affected 
by today's proposed rule, USDA requests comment on how many small 
entities may be affected by this rule and on the nature and extent of 
that effect.
    All comments should be submitted as directed in the ADDRESSES 
section above.
    To assist you in developing your comments, the background 
information used in proposing these product categories for designation 
has been assembled in a technical support document (TSD), ``Technical 
Support for Proposed Rule--Round 8 Designated Product Categories,'' 
which is available on the BioPreferred Web site. The TSD document can 
be located by clicking on the ``Federal Procurement Preference'' link 
on the right side of the BioPreferred Web site's home page (https://www.biopreferred.gov) and then on the ``Rules and Regulations'' link. 
At the next screen, click on the Supporting Documentation link under 
Round 8

[[Page 56889]]

Designation under the Proposed Regulations section.

IV. Designation of Product Categories, Minimum Biobased Contents, and 
Time Frame

A. Background

    In order for USDA to designate product categories for Federal 
preferred procurement, section 9002 requires USDA to consider: (1) The 
availability of biobased products within the product categories and (2) 
the economic and technological feasibility of using those products, 
including the life-cycle costs of the products.
    In considering an item's availability, USDA uses several sources of 
information. USDA performs Internet searches, contacts trade 
associations (such as the Bio organization) and commodity groups, 
searches the Thomas Register (a database, used as a resource for 
finding companies and products manufactured in North America, 
containing over 173,000 entries), and contacts manufacturers and 
vendors to identify those manufacturers and vendors with biobased 
products within product categories being considered for designation. 
USDA uses the results of these same searches to determine if an item is 
generally available.
    In considering a product category's economic and technological 
feasibility, USDA examines evidence pointing to the general commercial 
use of a product and its life-cycle cost and performance 
characteristics. This information is obtained from the sources used to 
assess a product's availability. Commercial use, in turn, is evidenced 
by any manufacturer and vendor information on the availability, 
relative prices, and performance of their products as well as by 
evidence of a product being purchased by a procuring agency or other 
entity, where available. In sum, USDA considers a product category 
economically and technologically feasible for purposes of designation 
if products within that product category are being offered and used in 
the marketplace.
    In considering the life-cycle costs of product categories proposed 
for designation, USDA has obtained the necessary input information (on 
a voluntary basis) from manufacturers of biobased products and has used 
the BEES analytical tool to analyze individual products within each 
proposed product category. The BEES analytical tool measures the 
environmental performance and the economic performance of a product. 
The environmental performance scores, impact values, and economic 
performance results for products within the Round 8 designated product 
categories analyzed using the BEES analytical tool can be found in 
``Technical Support for Proposed Rule--Round 8 Designated Product 
Categories,'' located on the BioPreferred Web site (https://www.biopreferred.gov).
    In addition to the BEES analytical tool, manufacturers wishing to 
make similar life-cycle information available may choose to use the 
ASTM Standard D7075 analysis. The ASTM Standard D7075 product analysis 
includes information on environmental performance, human health 
impacts, and economic performance. USDA is working with manufacturers 
and vendors to make this information available on the BioPreferred Web 
site in order to make the Federal preferred procurement program more 
efficient.
    As discussed earlier, USDA has also implemented, or will implement, 
several other steps intended to educate the manufacturers and other 
stakeholders on the benefits of this program and the need to make this 
information, including manufacturer contact information, available on 
the BioPreferred Web site in order to then make it available to 
procurement officials. Additional information on specific products 
within the product categories proposed for designation may also be 
obtained directly from the manufacturers of the products. USDA has also 
provided a link on the BioPreferred Web site to a document that offers 
useful information to manufacturers and vendors who wish to position 
their businesses as BioPreferred vendors to the Federal Government. 
This document can be accessed by clicking on the ``Sell Biobased 
Products'' tab on the right side of the home page of the BioPreferred 
Web site, then on the ``Resources for Business'' tab under ``Related 
Topics'' on the right side of the next page, and then on the document 
titled ``Selling Biobased Products to the Federal Government'' in the 
middle of the page.
    USDA recognizes that information related to the functional 
performance of biobased products is a primary factor in making the 
decision to purchase these products. USDA is gathering information on 
industry standard test methods and performance standards that 
manufacturers are using to evaluate the functional performance of their 
products. (Test methods are procedures used to provide information on a 
certain attribute of a product. For example, a test method might 
determine how many bacteria are killed. Performance standards identify 
the level at which a product must perform in order for it to be 
``acceptable'' to the entity that set the performance standard. For 
example, a performance standard might require that a certain percentage 
(e.g., 95 percent) of the bacteria must be killed through the use of 
the product.) The primary sources of information on these test methods 
and performance standards are manufacturers of biobased products within 
these product categories. Additional test methods and performance 
standards are also identified during meetings of the Interagency 
council and during the review process for each proposed rule. We have 
listed, under the detailed discussion of each product category proposed 
for designation (presented in Section IV.B), the functional performance 
test methods, performance standards, product certifications, and other 
measures of performance associated with the functional aspects of 
products identified during the development of this Federal Register 
notice for these product categories.
    While this process identifies many of the relevant test methods and 
standards, USDA recognizes that those identified herein do not 
represent all of the methods and standards that may be applicable for a 
product category or for any individual product within the category. As 
noted earlier in this preamble, USDA is requesting identification of 
other relevant performance standards and measures of performance. As 
the program becomes fully implemented, these and other additional 
relevant performance standards will be available on the BioPreferred 
Web site.
    In gathering information relevant to the analyses discussed above 
for this proposed rule, USDA has made extensive efforts to contact and 
request information and product samples within the product categories 
proposed for designation. For product information, USDA has attempted 
to contact representatives of the manufacturers of biobased products 
identified by the Federal preferred procurement program. For product 
samples on which to conduct biobased content tests and BEES analysis, 
USDA has attempted to obtain samples and BEES input information for at 
least five different suppliers of products within each product category 
in today's proposed rule. However, because the submission of 
information and samples is on a strictly voluntary basis, USDA was able 
to obtain information and samples only from those manufacturers who 
volunteered to invest the resources required to gather and submit the 
information and samples. The data

[[Page 56890]]

presented are all the data that were submitted in response to USDA 
requests for information from manufacturers of the products within the 
product categories proposed for designation. While USDA would prefer to 
have complete data on the full range of products within each product 
category, the data that were submitted support designation of the 
product categories in today's proposed rule.
    To propose a product category for designation, USDA must have 
sufficient information on a sufficient number of products within the 
category to be able to assess its availability and its economic and 
technological feasibility, including its life-cycle costs. For some 
product categories, there may be numerous products available. For 
others, there may be very few products currently available. Given the 
infancy of the market for some product categories, it is expected that 
categories with only a single product will be identified. Further, 
given that the intent of section 9002 is largely to stimulate the 
production of new biobased products and to energize emerging markets 
for those products, USDA has determined it is appropriate to designate 
a product category or subcategory for Federal preferred procurement 
even when there is only a single product with a single supplier, though 
this will generally occur once other products with high biobased 
content and two or more producers are first designated. However, USDA 
has also determined that in such situations it is appropriate to defer 
the effective Federal preferred procurement date until such time that 
more than one supplier is identified in order to provide choice to 
procuring agencies. Similarly, the documented availability, benefits, 
and life-cycle costs of even a very small percentage of all products 
that may exist within a product category are also considered sufficient 
to support designation.

B. Product Categories Proposed for Designation

    USDA uses a model (as summarized below) to identify and prioritize 
product categories for designation. Through this model, USDA has 
identified over 100 product categories for potential designation under 
the Federal preferred procurement program. A list of these product 
categories and information on the model can be accessed on the 
BioPreferred Web site at https://www.biopreferred.gov.
    In general, product categories are developed and prioritized for 
designation by evaluating them against program criteria established by 
USDA and by gathering information from other government agencies, 
private industry groups, and manufacturers. These evaluations begin by 
looking at the cost, performance, and availability of products within 
each product category. USDA then considers the following points:
     Are there manufacturers interested in providing the 
necessary test information on products within a particular product 
category?
     Are there a number of manufacturers producing biobased 
products in this product category?
     Are there products available in this product category?
     What level of difficulty is expected when designating this 
item?
     Is there Federal demand for the product?
     Are Federal procurement personnel looking for biobased 
products?
     Will a product category create a high demand for biobased 
feed stock?
     Does manufacturing of products within this product 
category increase potential for rural development?
    After completing this evaluation, USDA prioritizes the list of 
product categories for designation. USDA then gathers information on 
products within the highest priority product categories and, as 
sufficient information becomes available for a group of product 
categories, a new rulemaking package is developed to designate the 
product categories within that group. USDA points out that the list of 
product categories may change, with some being added or dropped, and 
that the order in which they are proposed for designation is likely to 
change because the information necessary to designate a product 
category may take more time to obtain than one lower on the list.
    In today's proposed rule, USDA is proposing to designate the 
following product categories for the Federal preferred procurement 
program: Air fresheners and deodorizers; asphalt and tar removers; 
asphalt restorers; blast media; candles and wax melts; electronic 
components cleaners; floor coverings (non-carpet); foot care products; 
furniture cleaners and protectors; inks, including specialty inks, inks 
(sheetfed--color), inks (sheetfed--black), inks (printer toner--<25 
ppm), inks (printer toner-->=25 ppm), and inks (news) as subcategories; 
packaging and insulating materials; pneumatic equipment lubricants; and 
wood and concrete stains. USDA has determined that each of these 
product categories meets the necessary statutory requirements--namely, 
that they are being produced with biobased products and that their 
procurement by procuring agencies will carry out the following 
objectives of section 9002:
     To increase demand for biobased products, which would in 
turn increase demand for agricultural commodities that can serve as 
feedstocks for the production of biobased products;
     To spur development of the industrial base through value-
added agricultural processing and manufacturing in rural communities; 
and
     To enhance the Nation's energy security by substituting 
biobased products for products derived from imported oil and natural 
gas.
    Further, USDA has sufficient information on these product 
categories to determine their availability and to conduct the requisite 
analyses to determine their biobased content and their economic and 
technological feasibility, including life-cycle costs.
    Overlap with EPA's Comprehensive Procurement Guideline program for 
recovered content products. In today's proposed rule, three product 
categories may overlap with EPA-designated recovered content products. 
The first is blast media, which may overlap with the EPA-designated 
recovered content product ``Miscellaneous products--blasting grit.'' 
The second is floor coverings (non-carpet), which may overlap with the 
EPA-designated recovered content product ``Floor tiles.'' The third is 
pneumatic equipment lubricants, which may overlap with the EPA-
designated recovered content product ``Re-refined lubricating oils.''
    For these product categories, USDA is requesting information on 
overlap situations to further help procuring agencies make informed 
decisions when faced with purchasing a recovered content material 
product or a biobased product. As this information is developed, USDA 
will make it available on the BioPreferred Web site.
    Exemptions. Products exempt from the biobased procurement 
preference are military equipment, defined as any product or system 
designed or procured for combat or combat-related missions, and 
spacecraft systems and launch support equipment. However, agencies may 
purchase biobased products wherever performance, availability and 
reasonable price indicates that such purchases are justified.
    Although each product category in today's proposed rule would be 
exempt from the procurement preference requirement when used in 
spacecraft systems or launch support application or in military 
equipment used in combat and combat-related applications, this 
exemption does not extend to contractors performing work other than

[[Page 56891]]

direct maintenance and support of the spacecraft or launch support 
equipment or combat or combat-related missions. For example, if a 
contractor is applying furniture cleaners and protectors to the 
furniture in an office building on a military base, the furniture 
cleaners and protectors the contractor purchases and uses in the office 
building should be a qualifying biobased furniture cleaner and 
protector. The exemption does apply, however, if the product being 
purchased by the contractor is for use in combat or combat-related 
missions or for use in space or launch applications. After reviewing 
the regulatory requirement and the relevant contract, where contractors 
have any questions on the exemption, they should contact the cognizant 
contracting officer.
    USDA points out that it is not the intent of these exemptions to 
imply that biobased products are inferior to non-biobased products. If 
manufacturers of biobased products can meet the concerns of these two 
agencies, USDA is willing to reconsider such exemptions on a case-by-
case basis. Any changes to the current exemptions would be announced in 
a proposed rule amendment with an opportunity for public comment.
    Each of the proposed designated product categories are discussed in 
the following sections.
1. Air Fresheners and Deodorizers (Minimum Biobased Content 97 Percent) 
\1\
---------------------------------------------------------------------------

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

    Air fresheners and deodorizers are products used to alleviate the 
experience of unpleasant odors by chemical neutralization, absorption, 
anesthetization, or masking.
    USDA identified 44 manufacturers and suppliers of 77 air fresheners 
and deodorizers. These 44 manufacturers and suppliers do not 
necessarily include all manufacturers of air fresheners and 
deodorizers, merely those identified during USDA information gathering 
activities. Relevant product information supplied by these 
manufacturers and suppliers indicates that these products are being 
used commercially. In addition, manufacturers and stakeholders 
identified two test methods (as shown below) used in evaluating 
products within this product category. While there may be additional 
test methods, as well as performance standards, product certifications, 
and other measures of performance, applicable to products within this 
product category, the two test methods identified by the manufacturers 
are:
Test Methods
     Environmental Protection Agency (EPA), 40 CFR part 
797.1300, Daphnid Acute Toxicity Test. Method used to determine the 
concentration of a substance that produces a toxic effect; and
     EPA, 40 CFR part 797.1400, Fish Acute Toxicity Test. 
Method used to determine the concentration of a substance that produces 
a toxic effect.
    USDA contacted procurement officials with various policy-making and 
procuring agencies in an effort to gather information on the purchases 
of air fresheners and deodorizers, as well as information on products 
within the other 12 product categories proposed for designation today. 
These agencies included GSA, several offices within the DLA, OFEE, USDA 
Departmental Administration, the National Park Service, EPA, a 
Department of Energy laboratory, and OMB. Communications with these 
Federal officials led to the conclusion that obtaining current usage 
statistics and specific potential markets within the Federal government 
for biobased products within the 13 proposed designated product 
categories is not possible at this time.
    Most of the contacted officials reported that procurement data are 
appropriately reported in higher level groupings of Federal Supply 
Codes \2\ for materials and supplies, which is higher level coding than 
the proposed designated product categories. Using terms that best match 
the product categories in today's proposed rule, USDA queried the GSA 
database for Federal purchases of products within today's proposed 
product categories. The results indicate purchases of products within 
product categories in today's proposed rule. The results of this 
inquiry can be found in the TSD for this proposed rule. Also, the 
purchasing of such materials as part of contracted services and with 
individual purchase cards used to purchase products locally leads to 
less accurate data on purchases of specific products.
---------------------------------------------------------------------------

    \2\ The Federal Supply Code (FSC) is a four-digit code used by 
government buying offices to classify and identify, in broad terms, 
the products and supplies that the government buys and uses. The FSC 
is the first four digits in the much more detailed 13-digit National 
Stock Number (NSN) that is assigned to all government purchases for 
purposes of identification and inventory control.
---------------------------------------------------------------------------

    USDA also investigated the Web site FEDBIZOPPS.gov, a site which 
lists Federal contract purchase opportunities and awards greater than 
$25,000. The information provided on this Web site, however, is for 
broad categories of services and products rather than the specific 
types of products that are included in today's proposed rule. 
Therefore, USDA has been unable to obtain data on the amount of air 
fresheners and deodorizers purchased by procuring agencies. However, 
Federal agencies routinely procure such products and contract for 
lodging, cleaning, and health care related services involving the use 
of such products. Thus, they have a need for air fresheners and 
deodorizers and for services that use these products. Designation of 
air fresheners and deodorizers will promote the use of biobased 
products, furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on 14 air fresheners and deodorizers. Analyses of the 
environmental and human health benefits and the life-cycle costs of 
biobased air fresheners were performed for two of the products using 
the BEES analytical tool. The results of those analyses are presented 
in the TSD for the Round 8 product categories, which can be found on 
the BioPreferred Web site.
2. Asphalt and Tar Removers (Minimum Biobased Content 80 Percent)
    Asphalt and tar removers are products designed to remove asphalt or 
tar from equipment, roads, or various surfaces.
    USDA identified 13 manufacturers and suppliers of 16 asphalt and 
tar removers. The 13 manufacturers and suppliers do not necessarily 
include all manufacturers and suppliers of biobased asphalt and tar 
removers, merely those identified during USDA information gathering 
activities. Information supplied by these manufacturers and suppliers 
indicates that these products are being used commercially. However, 
manufacturers and stakeholders contacted by USDA did not identify any 
applicable performance standards, test methods, or other industry 
measures of performance against which these products have been tested. 
USDA points out that the lack of identified performance standards is 
not relevant to the designation of a product category for Federal 
preferred procurement because it is not one of the criteria section 
9002 requires USDA to consider. If and when performance standards, test 
methods, and other relevant measures of performance are identified for 
this product category, USDA will provide such information on the 
BioPreferred Web site.

[[Page 56892]]

    USDA attempted to gather data on the potential market for asphalt 
and tar remover products within the Federal government, as discussed in 
the section on air fresheners and deodorizers. These attempts were 
largely unsuccessful. However, Federal agencies routinely procure such 
products and perform, or procure contract services to perform, the 
types of cleaning activities that would use these products. Thus, they 
have a need for asphalt and tar removers and for services that require 
the use of asphalt and tar removers. Designation of asphalt and tar 
removers will promote the use of biobased products, furthering the 
objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on eight asphalt and tar removers. Analyses of the 
environmental and human health benefits and the life-cycle costs of 
asphalt and tar removers were performed for two products using the BEES 
analytical tool. The results of those analyses are presented in the TSD 
for the Round 8 product categories, which can be found on the 
BioPreferred Web site.
3. Asphalt Restorers (Minimum Biobased Content 68 Percent)
    Asphalt restorers are products designed to seal, protect, or 
restore poured asphalt and concrete surfaces and are typically applied 
through spraying immediately after pouring of concrete or asphalt.
    USDA identified five manufacturers and suppliers of seven asphalt 
restorers. The five manufacturers and suppliers do not necessarily 
include all manufacturers and suppliers of biobased asphalt restorers, 
merely those identified during USDA information gathering activities. 
Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. In addition, 
manufacturers and stakeholders identified one test method (as shown 
below) used in evaluating products within this product category. While 
there may be additional test methods, as well as performance standards, 
product certifications, and other measures of performance, applicable 
to products within this product category, the one test method 
identified by the manufacturers is:
Test Method
     ASTM D2170--Standard Test Method for Kinematic Viscosity 
of Asphalts (Bitumens).
    USDA attempted to gather data on the potential market for asphalt 
restorer products within the Federal government, as discussed in the 
section on air fresheners and deodorizers. These attempts were largely 
unsuccessful. However, many Federal agencies routinely perform, or 
procure contract services to perform, the types of paving activities 
that would use these products. Thus, they have a need for asphalt 
restorers and for services that require the use of asphalt restorers. 
Designation of asphalt restorers will promote the use of biobased 
products, furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on five asphalt restorers. An analysis of the environmental 
and human health benefits and the life-cycle costs of asphalt restorers 
was performed for one product using the BEES analytical tool. The 
results of that analysis are presented in the TSD for the Round 8 
product categories, which can be found on the BioPreferred Web site.
4. Blast Media (Minimum Biobased Content 94 Percent)
    Blast media are abrasive particles sprayed forcefully to clean, 
remove contaminants, or condition surfaces, often preceding coating.
    USDA identified 7 manufacturers and suppliers of 13 different blast 
media. These seven manufacturers and suppliers do not necessarily 
include all manufacturers and suppliers of biobased blast media, merely 
those identified during USDA information gathering activities. 
Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. In addition, 
manufacturers and stakeholders identified one test method (as shown 
below) used in evaluati