Designation of Product Categories for Federal Procurement, 20281-20291 [2012-8068]

Agencies

• DEPARTMENT OF AGRICULTURE
• Office of Procurement and Property Management

[Federal Register Volume 77, Number 65 (Wednesday, April 4, 2012)]
[Rules and Regulations]
[Pages 20281-20291]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8068]



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Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Rules 
and Regulations

[[Page 20281]]



DEPARTMENT OF AGRICULTURE

Office of Procurement and Property Management

7 CFR Part 3201

RIN 0599-AA14


Designation of Product Categories for Federal Procurement

AGENCY: Office of Procurement and Property Management, USDA.

ACTION: Final rule.

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SUMMARY: In compliance with the February 21, 2012 Presidential 
Memorandum ``Driving Innovation and Creating Jobs In Rural America 
through Biobased and Sustainable Product Procurement,'' the U.S. 
Department of Agriculture (USDA) is amending the Guidelines for 
Designating Biobased Products for Federal Procurement, to add 13 
sections to designate product categories 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 product categories.

DATES: This rule is effective May 4, 2012.

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

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

I. Authority
II. Background
III. Summary of Changes
IV. Discussion of Public Comments
V. Regulatory Information
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory 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 product categories 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 September 
14, 2011, a proposed rule in the Federal Register (FR) for the purpose 
of designating a total of 13 product categories for the preferred 
procurement of biobased products by Federal agencies (referred to 
hereafter in this final rule as the ``preferred procurement program''). 
The proposed rule can be found at 76 FR 56884. This rulemaking is 
referred to in this preamble as Round 8 (RIN 0599-AA14).
    In the proposed rule, USDA proposed designating the following 13 
product categories for the 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; packaging and insulating materials; 
pneumatic equipment lubricants; and wood and concrete stains.
    Today's final rule designates the proposed product categories 
within which biobased products will be afforded Federal procurement 
preference. USDA has determined that each of the product categories 
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 a product category (a generic 
grouping of products) for preferred procurement under the BioPreferred 
Program, manufacturers of all products under the umbrella of that 
product category, 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 product 
category and must contain at least the minimum biobased content 
established for the designated item. With the designation of these 
specific product categories, USDA invites the manufacturers and vendors 
of qualifying products to provide information on the product, contacts, 
and performance testing for posting on its BioPreferred Web site, 
https://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 product category. Once USDA 
designates a product category, procuring agencies are required 
generally to purchase biobased products within the designated product 
category where the purchase price of the procurement product exceeds 
$10,000 or where the quantity of such products or of functionally 
equivalent products purchased over the preceding fiscal year equaled 
$10,000 or more.
    Subcategorization. Within today's final rule, USDA has 
subcategorized one of the product categories. That product

[[Page 20282]]

category is inks and the 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).
    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 
today's final 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. Given that 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. USDA will continue 
to solicit information on these subcategories and if additional data on 
the biobased contents for products within these designated product 
subcategories is obtained, USDA will evaluate whether the minimum 
biobased content should be revised.
    Overlap with EPA's Comprehensive Procurement Guideline program for 
recovered content products under the Resource Conservation and Recovery 
Act (RCRA) Section 6002. This final 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 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.
    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 (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 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 
product categories. USDA requests stakeholder input in gathering 
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 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.

III. Summary of Changes

    As a result of the public comments received on the proposed rule, 
USDA has made 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.
    In the final rule, USDA has changed the name of one product 
category being designated. That product category was proposed as 
``packaging and insulating materials,'' but is being changed in the 
final rule to ``packing and insulating materials.'' After the proposed 
rule was published, USDA learned of a potential

[[Page 20283]]

issue involving the name and description of the proposed product 
category. It was USDA's intent that the product category would include 
``pre-formed or molded materials used to hold package contents in place 
during shipping'' (76 FR 56894, September 14, 2011). As an example of 
the types of products intended to be included in the proposed category, 
USDA referred to the foam ``peanuts'' that are used to protect and 
prevent the movement of products that are placed in cardboard or other 
types of containers for shipment. It was not USDA's intent that the 
product category would include the outside container (e.g., the 
cardboard box) into which the ``peanuts'' or molded foam packing 
materials are placed. USDA has concluded that the term ``packaging'' is 
too broad for the purpose of defining the product category and is 
likely to be interpreted as including the outside box or container into 
which ``packing'' material is placed. For this reason, USDA is 
finalizing the product category with the name ``packing and insulating 
materials.''
    In addition to revising the name of the proposed product category 
to ``packing and insulating materials,'' USDA has lowered the minimum 
biobased content for this product category to 74 percent. At proposal, 
the recommended minimum biobased content was 82 percent and was based 
on a product with a tested biobased content of 85 percent. After the 
proposed rule was published, the manufacturer of this particular 
product re-tested the biobased content of the product as part of the 
application process to obtain certification to use the USDA Certified 
Biobased Product label. The results of the re-test showed a biobased 
content of 77 percent. USDA does not have any additional information to 
indicate which of the testing results (85 percent biobased or 77 
percent biobased) are more accurate. Because of this uncertainty, and 
because the difference between the two values is not large, USDA 
decided that it was reasonable to use the lower tested value to 
establish the minimum biobased content in the final rule. Therefore, 
the minimum biobased content for the ``packing and insulating 
materials'' product category in the final rule is 74 percent (the 77 
percent tested value minus 3 percentage points to account for 
variability in the testing procedure).
    USDA has also revised the minimum biobased content for the 
``furniture cleaners and protectors'' product category from the 
proposed level of 77 percent to 71 percent in the final rule. At the 
time the proposed minimum biobased content for this product category 
was established, USDA had test data on six products. The biobased 
content of these six furniture cleaners and protectors ranged from 9 
percent to 100 percent, as follows: 9, 28, 80, 91, 98, and 100 percent. 
As explained in the preamble to the proposed rule (76 FR 56897), USDA 
decided to set the minimum biobased content for the product category at 
77 percent, based on the product with the tested biobased content of 80 
percent.
    After the proposed rule was published, USDA received biobased 
content data on an additional product within this product category. The 
biobased content of this product is 74 percent, which is 6 percentage 
points lower than the product originally selected as the basis for the 
minimum biobased content. With the new data point included, the data 
fall into two obvious groups, with a significant gap between them. The 
two lowest data points are 9 and 28 percent and the five highest data 
points are 74, 80, 91, 98, and 100 percent. USDA believes it is 
reasonable to set the minimum biobased content in the final rule based 
on the product with the 74 percent biobased content. Therefore, the 
minimum biobased content for the ``furniture cleaners and protectors'' 
product category in the final rule is 71 percent (the 74 percent tested 
value minus 3 percentage points to account for variability in the 
testing procedure). As is the case for all product categories, USDA 
will continue to gather and consider new biobased content testing data. 
When found to be necessary, USDA will revise the minimum biobased 
content of product categories through established notice and comment 
rulemaking procedures.

IV. Discussion of Public Comments

    USDA solicited comments on the proposed rule for 60 days ending on 
November 14, 2011. USDA received eight comments by that date. Four of 
the comments were from individual citizens, two were from trade groups, 
one was from a biobased product manufacturer, and one was from a 
Federal agency commenter. The comments are presented below, along with 
USDA's response, and are grouped by the product categories to which 
they apply.

Blast Media

    Comment: One trade group commenter recommended that USDA reconsider 
designating the blast media product category for Federal procurement. 
The commenter stated that they do not believe that biobased abrasives 
are always the best choice when selecting an environmentally friendly 
abrasive because of performance limitations that can cause decreased 
coating life expectancies. The commenter explained that the selection 
of an abrasive for a particular project is based on a life cycle 
assessment that includes an examination of the economic and 
environmental health and safety impacts. The commenter presented 
information on the properties of an abrasive that must be considered, 
including the shape, hardness, durability, density, and size of the 
abrasive. The commenter also presented information on the relationship 
between these properties of the abrasive and the surface profile that 
is created on the substrate when a variety of abrasive materials are 
used. The commenter stated that The Society for Protective Coatings 
recommends biobased abrasives for removing single layers of paint, fine 
scale and other surface contaminants when there is no technical need to 
alter the metal substrate. The commenter further stated that when it is 
necessary to meet a surface preparation standard to remove multiple 
layers of paint and produce an acceptable surface profile for optimal 
coating adhesion, harder abrasives need to be specified. According to 
the commenter, biobased abrasives are environmentally friendly, but are 
well below the minimum hardness value needed to achieve an acceptable 
surface profile for protecting industrial structures and typically are 
not reusable. The commenter concluded by saying that using biobased 
abrasives in lieu of standard abrasives will result in coating system 
failure or, at best, will significantly reduce the overall life 
expectancy and sustainability of the coating due to poor surface 
profile and coating adhesion.
    Response: USDA agrees with the commenter's general position that 
traditional abrasives are needed in many applications. The commenter 
mentions industrial structures and the U.S. Navy fleet as examples of 
applications where, according to the commenter, biobased blast media 
will not meet surface coating specifications and performance 
requirements. USDA recognizes that blast media is a product category 
with wide-ranging performance demands, depending on the type and end 
use of the substrate to which the blast media is being applied. USDA 
points out that the intent of designating biobased blast media for 
Federal procurement preference is not to eliminate the use of 
traditional blast media in cases such as those mentioned by the 
commenter. The intent of the designation is, rather, to require that 
Federal agencies give

[[Page 20284]]

preference to biobased blast media in those cases where such blast 
media meet the agency's performance requirements as well as 
availability and cost considerations. USDA recognizes that performance 
is the key factor in making purchasing decisions among the various 
types of products within most product categories. However, USDA 
believes that many situations exist where blast media are used to clean 
or prepare substrates that are less durable than structural steel. In 
many of these applications, biobased blast media may perform better 
than the more abrasive metallic types of media described by the 
commenter. Thus, USDA believes that the designation of biobased blast 
media is consistent with the goals and objectives of the BioPreferred 
program and has finalized the designation in today's rulemaking.

Floor Coverings (Non-Carpet)

    Comment: One biobased product manufacturer requested that their 
product be added as a subcategory under the floor coverings product 
category. The commenter explained that their product is manufactured 
using an innovative thermal technology that results in wood that has 
many advantages over traditional chemically treated wood. The commenter 
stated that their product can be used in any flooring application and 
is non-toxic, dimensionally stable, and has a 30-year warranty against 
rot. The commenter also stated that their product is environmentally 
preferable to most other wood products because it is manufactured 
without the use of toxic chemicals and is a 100 percent biobased 
product.
    Response: USDA agrees with the commenter that their product has 
many beneficial attributes. USDA also believes that, in some cases, 
this manufacturer's product may be a very desirable option for use as a 
floor covering. However, USDA does not believe that the creation of a 
separate subcategory under the floor covering (non-carpet) product 
category is justified.
    As explained in the preamble to the proposed rule, USDA intends to 
establish subcategories based on the existence of ``groups'' of 
products with different performance requirements or different 
functional uses. In the case of floor coverings, USDA did not identify 
specific performance requirements that the commenter's product could 
meet that could not be met by one or more of the other available 
biobased products.
    Another consideration for establishing subcategories is the 
presence of a product or group of products with some unique desirable 
characteristics not found in the other products and whose biobased 
content differs considerably from other products in the category. The 
91 percent minimum biobased content that has been established for the 
product category is sufficiently high that USDA does not believe it is 
reasonable to create a subcategory based on biobased content 
differences. The 91 percent minimum biobased content ensures that 
products that qualify for the procurement preference are truly 
legitimate biobased products with only minimal non-biobased 
ingredients.
    In summary, USDA believes that the floor covering (non-carpet) 
product category is defined such that Federal agencies may select from 
several different biobased alternative products. The decision on which 
biobased products to purchase will be based on a range of factors 
including durability, appearance, required maintenance, and cost. While 
the commenter's product may be a very competitive product within the 
floor covering category, USDA does not believe that creating a separate 
subcategory for it is justified.

Inks

    Comment: Four commenters stated that they supported USDA efforts to 
encourage the use of biobased printing inks and toners. The commenters 
stated that the use of such products will increase the demand for 
agricultural products grown domestically, decrease our dependence on 
foreign oil, positively affect the U.S. economy, and protect our 
environment for future generations of Americans.
    Response: USDA agrees with the commenters and thanks them for their 
support of the BioPreferred program.
    Comment: One commenter representing a coalition of trade groups 
stated that USDA needs to withdraw the proposed designation of the inks 
product category and conduct a more detailed and thorough review to 
insure that the correct biobased contents for inks are recommended, as 
several critical elements in the review are deficient. The commenter 
stated that USDA has not completed a thorough investigation into 
existing Federal requirements and industry standards for biobased 
printing inks. In addition, the commenter stated that USDA has set 
limits without a complete understanding of the technical issues 
associated with biobased content in different types of printing inks. 
The commenter stated that another concern not adequately addressed is 
the financial and performance implications of requiring the use of inks 
with high biobased content. The commenter recommends that USDA become 
familiar with the existing regulation that sets minimum standards for 
biobased materials in printing inks used in government agencies. The 
commenter stated that this regulation, the Vegetable Ink Printing Act 
of 1994, requires that Federal agencies use lithographic inks with a 
specified vegetable oil content.
    The commenter also stated that USDA should look to existing 
industry standards for inks with biobased material content. The 
commenter noted that one such program is SoySeal, developed by the 
American Soybean Association (ASA), which has set minimum soy oil 
contents for a variety of different classes of inks. The commenter 
stated that ASA set these standards based on their research on 
incorporating soy oil into various types of printing inks, their unique 
properties, and testing of the formulations. The percentages are 
expressed as the percentage of soy oil out of the total formula weight 
of the inks.
    The commenter supports the total formula weight approach taken by 
the SoySeal program and recommends that USDA also adopt this approach. 
The commenter stated that the approach taken by SoySeal to define soy 
content limits by weight percent is readily understood in the industry 
and should be adopted by USDA. The commenter stated that this method 
allows for straightforward determination of soy or biobased content, 
based on ink formulation knowledge, instead of requiring expensive 
testing using the ASTM D6866 standard. The commenter stated that the 
ASTM test method can only be conducted by one lab and costs $600 per 
sample. The commenter stated that USDA did not specify in its proposal 
how the sampling for the test is to be conducted. According to the 
commenter, it is not clear if a representative formulation can be 
tested or if each color of each ink is to be tested and, since there 
are literally thousands of possible ink formulations, testing each and 
every ink is economically infeasible. The commenter stated that using a 
total ink formulation approach certified by the ink manufacturer 
provides a much more economical approach. Also, according to the 
commenter, it is unclear how the biobased content guidelines set by 
USDA compare to those set by the SoySeal program because the two 
systems (percent weight versus percent of carbonaceous material that is 
biobased) are not easily comparable. The commenter asked, for example, 
if a black news ink contains 40 percent biobased material by weight, 
would it meet USDA's recommendations if tested by the ASTM standard? 
The commenter

[[Page 20285]]

stated that, ideally, USDA's biobased content recommendations should 
mirror those recommended by the SoySeal program, as inks with these soy 
oil contents have been tested and proven to be effective.
    The commenter explained that while the proposed offset ink limits 
may be achievable for four color process inks (i.e., cyan, yellow, 
magenta, and black), the limits will certainly have a negative impact 
on various blending systems used. According to the commenter, many 
printing inks are specially blended to make unique colors, often 
referred to as ``spot colors'' or by the trade name ``Pantone Matching 
System,'' which are required to match exact colors. The commenter 
stated that the limits set have the potential to impact these inks, as 
well as Ultraviolet, Electron Beam, and many metallic and florescent 
inks that have unique properties that may require higher non-biobased 
content.
    The commenter also stated that the category of specialty inks used 
in the study is far too vaguely defined and the examples given are too 
diverse to be listed together. In addition, according to the commenter, 
the imposition of a level of 66 percent biobased material is extremely 
demanding for some of these applications. For example, a typical 
scratch and sniff ink might contain 20 percent of encapsulated 
fragrance, none of which is biobased. This only leaves room for 14 
percent of other non-biobased materials such as pigment, binders and 
additives. The commenter stated that these materials, many of which are 
carbonaceous, cannot be substituted for biobased materials and their 
presence in these inks will make it nearly impossible to meet the 66 
percent biobased content proposed in this program.
    The commenter stated that, for toner ink systems, biobased toners 
are not commonly available in the U.S. market. Currently, biobased 
xerographic inks make up less than 1 percent of the U.S. market, and 
are not available for xerographic colored inks.
    The commenter also stated that, in terms of cost and performance, 
it must be recognized that there are significant issues associated with 
high levels of biobased materials in printing inks. According to the 
commenter, these types of ink are almost always significantly more 
expensive than their non-biobased alternatives and, even with the 
current high costs of petroleum-based oils, soy oil still commands 
close to a 50 percent premium. In addition, the commenter stated that 
it is common knowledge within the graphic arts community that biobased 
often results inferior technical performance [color reproduction] and 
reduced press speeds to allow for longer drying times. The commenter 
explained that solvent based inks cannot be easily replaced with bio-
derived oils because the oils do not volatilize quickly enough.
    The commenter stated that there is no indication that an assessment 
of the cost difference between conventional and biobased inks was 
completed and that, in order to create biobased purchasing preferences, 
USDA needs to quantify the environmental benefit of using a biobased 
ink and assure that it is cost effective.
    The commenter stated that many of the underlying assumptions used 
by USDA to determine the specific limits and ink types in the proposal 
are not transparent or justified. The commenter asked, as an example, 
of the 148 biobased inks identified by USDA, how was a sample size of 
19 selected to be tested for biobased content by the ASTM standard? 
Also, of the biobased inks identified, how was a sample size of 3 to be 
analyzed by BEES determined? The commenter stated that, given the large 
number of inks that are on the market, it is not clear how USDA 
concluded that its work was representative or statistically 
significant. The commenter stated that they do not believe that these 
sample sizes are large enough to show significant findings. The 
commenter also stated that it is unclear if the sampling was random, as 
should be the case, or if the inks tested were considered to be state-
of-the-art biobased inks. According to the commenter, one of the 
difficulties in interpreting the results of the study was that the 
units used to complete the BEES assessment were unclear, as the sample 
size was identified as 300 square inches, but not if those 300 square 
inches were actual ink, or if it was 300 square inches of printed 
material.
    Another concern expressed by the commenter is the use of the 
Building for Environmental and Economic Sustainability (BEES) model for 
testing the environmental impact of printing ink. The commenter stated 
that USDA does not indicate how a software program designed to assess 
the impact of building materials is applicable to an industrial/
consumer commodity such as ink. The commenter also stated that the 
study doesn't indicate that a comparison of the BEES impact of 
conventional and biobased inks was conducted and that while it is 
assumed that a material with more biobased content would be better, 
this needs to actually be confirmed.
    The commenter provided a summary of recommendations on the proposed 
biobased designations for inks, as follows:
    1. Refine the categories to better cover the various types of 
printing inks used from a broad perspective such as process and spot or 
inks as well as specific applications such as heatset web offset 
lithographic, gravure (water & solvent), and flexographic (water & 
solvent). Energy curable (ultraviolet and electron beam), water-based 
and inkjet inks should have their own, separate categories.
    2. Refine the specialty ink category. The current Specialty ink 
category is much too broad to be able to assign a biobased content 
across the board. While some specialty inks could be formulated to 
contain the 66 percent, many others cannot.
    3. Utilize the SoySeal limits as the basis for the biobased content 
guidelines.
    4. Revise the standards to indicate the total portion of the ink 
that is biobased, rather than the total carbonaceous portion of the ink 
that is biobased. This will allow for more cost effective determination 
of biobased content based on ink formulation information, and is 
already the accepted standard for comparing biobased content in 
printing inks.
    5. Allow for the ink manufacturer to certify the biobased content 
based on formulation and not testing using the ASTM D6866 test.
    6. Biobased inks, as proposed, should be evaluated to determine if 
they can meet basic performance standards and be required to meet the 
same performance standards as conventional inks. Manufacturers should 
not be given the opportunity to gain a market advantage based on 
production of inks with high biobased content but a poor image quality.
    7. Conduct a true economic impact analysis comparing the costs of 
the proposed biobased materials as compared to conventional materials.
    8. To better understand the life-cycle cost section, identify the 
``usage unit'' for which price is specified.
    9. To better understand the BEES results, a functional unit of 300 
square inches was identified. Please clarify if this is 300 square 
inches of ink, or 300 square inches of printed material.
    Response: USDA appreciates the interest and concerns expressed by 
the commenter in the inks product category. Unfortunately, many of the 
comments and recommendations made by the commenter would require USDA 
to conduct studies and analyses that are beyond the scope of the 
BioPreferred program's mandate to designate product categories for 
federal procurement

[[Page 20286]]

preference. Under section 9002, USDA is directed to request from 
biobased product manufacturers the technical information that is used 
in the designation process, but is not given the authority to require 
that such information be supplied. Thus, USDA must rely on the 
voluntary submittal of technical information from product 
manufacturers. During the development of the proposed rule, USDA 
requested information from many soy ink manufacturers but received 
information from only a few. USDA developed the proposed rule based on 
the information available from those biobased ink manufacturers who 
chose to voluntarily supply it. Generally, the procedures employed, and 
the types and level of detail of the analyses performed, for the inks 
product category were the same as for the more than 60 product 
categories designated to date. USDA will, however, welcome the 
opportunity to meet with this commenter and any other representatives 
of the inks product category to discuss ways in which today's final 
rule can be improved.
    With regard to the commenter's points dealing with the Vegetable 
Ink Printing Act, USDA recognizes that many federal agencies' printing 
operations are covered by this Act. USDA points out that the 
designation of biobased products under section 9002 is not meant to 
replace or revise the requirements of the Vegetable Ink Printing Act. 
Instead, the designation under section 9002 is meant to extend the use 
of biobased printing inks to those printing operations that are not 
subject to the Vegetable Ink Printing Act. Under today's final rule, 
such printing operations must be performed using complying biobased 
inks to the extent that biobased inks meeting the performance and cost 
criteria are available.
    The commenter also presented numerous points regarding the 
methodology used to determine biobased content and the levels set as 
the minimum biobased contents in the proposed rule. USDA acknowledges 
that the biobased content determined by ASTM D6866 does not directly 
compare to soy content determinations using the SoySeal procedure. 
However, the use of ASTM D6866 to determine biobased content has been 
consistently required for all designated product categories and USDA 
believes it is appropriate for the inks product category as well. As 
pointed out by the commenter, inks are typically formulated from 
solvents, pigments, binders, and other additives. USDA believes that 
using ASTM D6866 to determine the biobased content of inks will 
encourage the development of biobased versions of each type of 
ingredient in the ink. As for the number of inks tested for biobased 
content and the resulting proposed minimum biobased contents, USDA 
relied on its standard methodology of requesting that manufacturers 
submit samples for testing and then evaluating the results of the 
testing to determine the proposed minimum biobased content (see 
``Minimum Biobased Contents'' discussion in the proposal preamble at 76 
FR 56885). Additional information regarding the biobased content 
testing can also be found in the preamble to proposed rule at 76 FR 
56896. USDA also notes that the BioPreferred program Guidelines (7 CFR 
3201.7) allows that ``products that are essentially the same 
formulation'' need not be tested individually.
    The commenter offered recommendations as to how USDA should 
redefine the inks subcategories in the final rule. USDA developed the 
proposed inks subcategories based on discussions with, and information 
provided by, ink manufacturers. There are, no doubt, many approaches 
that could be taken in subcategorizing the inks product category. USDA 
believes that the proposed subcategories will be sufficient for the 
initial efforts to designate the inks product category. USDA notes that 
the final rule does not take effect for one year after the publication 
date and, as mentioned above, welcomes the opportunity to meet with the 
commenter and others to discuss revising, refining, or expanding the 
subcategories at the earliest opportunity. Once a consensus has been 
reached between USDA and participating industry representatives, USDA 
will develop a rulemaking package to propose changes to the 
subcategories, if needed.
    The commenter also questioned the performance and cost of available 
biobased inks. USDA recognizes that performance and cost are key 
factors in selecting the types of inks used in printing/copying 
operations. As discussed in several other responses in this preamble, 
federal agencies are required to consider designated biobased products 
but are not required to purchase and use them if the available products 
are not capable of meeting reasonable performance expectations or are 
not priced competitively with non-biobased products. Section 9002 is 
very specific regarding these exceptions. However, USDA encourages 
federal agencies to explore available biobased products and communicate 
with biobased product manufacturers regarding performance and cost 
issues. Reputable biobased product manufacturers should be willing to 
work with federal agencies to resolve issues and they should also 
recognize that, even with the federal procurement preference, they will 
not be successful if their products do not perform up to expectations. 
In response to the commenter's question about the BEES functional unit, 
the 300 square inches used for the BEES analyses is 300 square inches 
of ink.
    In summary, USDA acknowledges that, because of time and budget 
considerations, today's designation of inks is not based on exhaustive 
studies and analyses. USDA also recognizes that some elements of the 
designation rule are subject to change as federal agencies and biobased 
ink manufacturers gain a better understanding of what is needed to 
substitute biobased inks for traditional inks. USDA invites the 
commenter and any other representatives of the ink manufacturing 
industry to submit information and to meet to discuss in detail future 
revisions that may be needed to the designation rule.

Packaging and Insulating Materials

    Comment: One Federal agency commenter expressed concern regarding 
the proposed product category ``Packaging and Insulating Materials'' 
and its potential impact on the agency's hazardous waste contracting 
and disposal efforts. Specifically, the commenter requested 
clarification on whether the biobased content requirements in proposed 
section 3201.85, Packaging and Insulating Materials, would apply to 
DOT/UN combination shipping packages for Hazardous Material/Hazardous 
Waste shipments or whether DOT/UN combination shipping packages might 
be excluded. The commenter further stated that if the proposed biobased 
requirements were determined to apply to such shipping packages, they 
would need to know how the implementation would affect such shipping.
    Response: As discussed in section III of this preamble, USDA has 
changed the name of this product category in the final rule to 
``packing and insulating materials.'' However, USDA believes that the 
name change has no bearing on the public comment or on the USDA 
response to it. The final rule does not provide a specific exemption 
from the requirements of section 3201.85 based on the types of material 
being shipped. As proposed, biobased packaging (packing) products 
receive the procurement preference regardless of the contents to be 
placed in the shipping packages. USDA considered the possibility of 
providing a specific

[[Page 20287]]

exemption for hazardous material/hazardous waste shipping activities, 
but did not provide such an exemption in the final rule. USDA decided 
that such an exemption was not necessary considering the language in 
the BioPreferred Program Guidelines. As stated in section 3201.3(c) of 
the Guidelines: ``Procuring agencies may decide not to procure such 
products if they are not reasonably priced or readily available or do 
not meet specified or reasonable performance standards.'' With regard 
to the commenter's concerns related to the shipping of hazardous 
material/hazardous waste, the DOT requirements for the packaging of 
such materials are spelled out in 49 CFR part 178. The burden to 
perform testing to demonstrate that their products are capable of 
meeting the requirements of part 178 fall on those biobased packaging 
material manufacturers who wish to sell their products to the Federal 
government. Only if such a demonstration of acceptable performance can 
be made are Federal agencies obligated to give a procurement preference 
to those products and, even then, only if they are available at 
reasonable costs. USDA believes that with these provisions already in 
the BioPreferred Program Guidelines, the specific exemption requested 
by the commenter is unnecessary. If acceptable biobased packing 
materials are available, they should be given preference. However, if 
the biobased alternatives are not acceptable (in terms of performance, 
availability, and cost), the agency may continue to use the packing 
materials currently in use. Thus, USDA is finalizing the designation of 
``packing and insulating materials'' without any specific exemptions.

V. Regulatory Information

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Executive Order 12866, as supplemented by Executive Order 13563, 
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 in the preamble to the proposed 
rulemaking, USDA made extensive efforts to obtain information on the 
Federal agencies' usage within the 13 designated product categories, 
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 biobased products within 
designated product categories 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 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. 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 13 product categories 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 product categories.
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 
product categories 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

[[Page 20288]]

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 product categories 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 product categories 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, 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 product categories being designated 
for preferred procurement in this rule are expected to be included 
under the following NAICS codes: 321918 (other millwork, including 
flooring), 324191 (petroleum lubricating oil and grease manufacturing), 
325411 (medicinal and botanical manufacturing), 325510 (paint and 
coating manufacturing), 325612 (polish and other sanitation goods 
manufacturing), 325620 (toilet preparation manufacturing), 325910 
(printing ink manufacturing), 325998 (other miscellaneous chemical 
products and preparation manufacturing), 326150 (urethane and other 
foam product manufacturing), and 313113 (thread 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 6,963 companies within these 10 NAICS categories and that 
these companies own a total of about 8,139 establishments. Thus, the 
average number of establishments per company is about 1.2. The Census 
data also reported that of the 8,139 individual establishments, about 
8,096 (99.5 percent) have fewer than 500 employees. USDA also found 
that the overall average number of employees per company among these 
industries is about 42, with none of the segments reporting an average 
of more than 100 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 product categories 
being designated, but believes that the impact will not be significant. 
Most of the product categories 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 product categories 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 products when biobased products 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 Federal 
Government and Indian tribes, or * * * the distribution of power and

[[Page 20289]]

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.

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 3201

    Biobased products, Procurement.

    For the reasons stated in the preamble, the Department of 
Agriculture is amending 7 CFR chapter XXXII as follows:

CHAPTER XXXII--OFFICE OF PROCUREMENT AND PROPERTY MANAGEMENT, 
DEPARTMENT OF AGRICULTURE

PART 3201--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL 
PROCUREMENT

0
1. The authority citation for part 3201 continues to read as follows:

    Authority: 7 U.S.C. 8102.


0
2. Add Sec. Sec.  3201.75 through 3201.87 to subpart B to read as 
follows:

Sec.
3201.75 Air fresheners and deodorizers.
3201.76 Asphalt and tar removers.
3201.77 Asphalt restorers.
3201.78 Blast media.
3201.79 Candles and wax melts.
3201.80 Electronic components cleaners.
3201.81 Floor coverings (non-carpet).
3201.82 Foot care products.
3201.83 Furniture cleaners and protectors.
3201.84 Inks.
3201.85 Packing and insulating materials.
3201.86 Pneumatic equipment lubricants.
3201.87 Wood and concrete stains.


Sec.  3201.75  Air fresheners and deodorizers.

    (a) Definition. Products used to alleviate the experience of 
unpleasant odors by chemical neutralization, absorption, 
anesthetization, or masking.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 97 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 April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased air fresheners and 
deodorizers. By that date, Federal agencies that have the 
responsibility for drafting or reviewing specifications for products to 
be procured shall ensure that the relevant specifications require the 
use of biobased air fresheners and deodorizers.


Sec.  3201.76  Asphalt and tar removers.

    (a) Definition. Cleaning agents designed to remove asphalt or tar 
from equipment, roads, or other surfaces.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 80 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 April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased asphalt and tar 
removers. By that date, Federal agencies that have the responsibility 
for drafting or reviewing specifications for products to be procured 
shall ensure that the relevant specifications require the use of 
biobased asphalt and tar removers.


Sec.  3201.77  Asphalt restorers.

    (a) Definition. Products designed to seal, protect, or restore 
poured asphalt and concrete surfaces.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 68 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 April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased asphalt restorers. By 
that date, Federal agencies that have the responsibility for drafting 
or reviewing specifications for products to be procured shall ensure 
that the relevant specifications require the use of biobased asphalt 
restorers.


Sec.  3201.78  Blast media.

    (a) Definition. Abrasive particles sprayed forcefully to clean, 
remove contaminants, or condition surfaces, often preceding coating.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 94 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 April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased blast media. By that 
date, Federal agencies that have the responsibility for drafting or 
reviewing specifications for products to be procured shall ensure that 
the relevant specifications require the use of biobased blast media.
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying products within this item may overlap with the EPA-
designated recovered content product: Miscellaneous products--blasting 
grit. 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 blasting grit products 
and which product should be afforded the preference in purchasing.

    Note to paragraph (d): Biobased blast media within this 
designated product

[[Page 20290]]

category can compete with similar blasting grit products with 
recycled content. Under the Resource Conservation and Recovery Act 
of 1976, section 6002, the U.S. Environmental Protection Agency 
designated blasting grit products containing recovered materials as 
products for which Federal agencies must give preference in their 
purchasing programs. The designation can be found in the 
Comprehensive Procurement Guideline, 40 CFR 247.17.

Sec.  3201.79  Candles and wax melts.

    (a) Definition. Products composed of a solid mass and either an 
embedded wick that is burned to provide light or aroma, or that are 
wickless and melt when heated to produce an aroma.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 88 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 April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased candles and wax melts. 
By that date, Federal agencies that have the responsibility for 
drafting or reviewing specifications for products to be procured shall 
ensure that the relevant specifications require the use of biobased 
candles and wax melts.


Sec.  3201.80  Electronic components cleaners.

    (a) Definition. Products that are designed to wash or remove dirt 
or extraneous matter from electronic parts, devices, circuits, or 
systems.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 91 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 April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased electronic components 
cleaners. By that date, Federal agencies that have the responsibility 
for drafting or reviewing specifications for products to be procured 
shall ensure that the relevant specifications require the use of 
biobased electronic components cleaners.


Sec.  3201.81  Floor coverings (non-carpet).

    (a) Definition. Products, other than carpet products, that are 
designed for use as the top layer on a floor. Examples are bamboo, 
hardwood, and cork tiles.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 91 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 April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased floor coverings (non-
carpet). By that date, Federal agencies that have the responsibility 
for drafting or reviewing specifications for products to be procured 
shall ensure that the relevant specifications require the use of 
biobased floor coverings (non-carpet).
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying products within this item may overlap with the EPA-
designated recovered content product: Construction Products--floor 
tiles. 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 floor tile products and 
which product should be afforded the preference in purchasing.

    Note to paragraph (d):  Biobased floor coverings within this 
designated product category can compete with similar floor tile 
products with recycled content. Under the Resource Conservation and 
Recovery Act of 1976, section 6002, the U.S. Environmental 
Protection Agency designated floor tile products containing 
recovered materials as products for which Federal agencies must give 
preference in their purchasing programs. The designation can be 
found in the Comprehensive Procurement Guideline, 40 CFR 247.17.

Sec.  3201.82  Foot care products.

    (a) Definition. Products formulated to be used in the soothing or 
cleaning of feet.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 83 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 April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased foot care products. By 
that date, Federal agencies that have the responsibility for drafting 
or reviewing specifications for products to be procured shall ensure 
that the relevant specifications require the use of biobased foot care 
products.


Sec.  3201.83  Furniture cleaners and protectors.

    (a) Definition. Products designed to clean and provide protection 
to the surfaces of household furniture other than the upholstery.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 71 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 April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased furniture cleaners and 
protectors. By that date, Federal agencies that have the responsibility 
for drafting or reviewing specifications for products to be procured 
shall ensure that the relevant specifications require the use of 
biobased furniture cleaners and protectors.


Sec.  3201.84  Inks.

    (a) Definitions. (1) Inks are liquid or powdered materials that are 
available in several colors and that are used to create the visual 
image on a substrate when writing, printing, and copying.
    (2) Inks for which Federal preferred procurement applies are:
    (i) Specialty inks. Inks used by printers to add extra 
characteristics to their prints for special effects or functions. 
Specialty inks include, but are not limited to: CD printing, erasable, 
FDA compliant, invisible, magnetic, scratch and sniff, thermochromic, 
and tree marking inks.
    (ii) Inks (sheetfed--color). Pigmented inks (other than black inks) 
used on coated and uncoated paper, paperboard, some plastic, and foil 
to print in color on annual reports, brochures, labels, and similar 
materials.
    (iii) Inks (sheetfed--black). Black inks used on coated and 
uncoated paper, paperboard, some plastic, and foil to print in black on 
annual reports, brochures, labels, and similar materials.
    (iv) Inks (printer toner--<25 pages per minute (ppm)). Inks that 
are a powdered

[[Page 20291]]

chemical, used in photocopying machines and laser printers, which is 
transferred onto paper to form the printed image. These inks are 
formulated to be used in printers with standard fusing mechanisms and 
print speeds of less than 25 ppm.
    (v) Inks (printer toner--=25 ppm). Inks that are a 
powdered chemical, used in photocopying machines and laser printers, 
which is transferred onto paper to form the printed image. These inks 
are formulated to be used in printers with advanced fusing mechanisms 
and print speeds of 25 ppm or greater.
    (vi) Inks (news). Inks used primarily to print newspapers.
    (b) Minimum biobased content. The minimum biobased content for all 
inks 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) Specialty inks--66 percent.
    (2) Inks (sheetfed--color)--67 percent.
    (3) Inks (sheetfed--black)--49 percent.
    (4) Inks (printer toner--<25 ppm)--34 percent.
    (5) Inks (printer toner--=25 ppm)--20 percent.
    (6) Inks (news)--32 percent.
    (c) Preference compliance date. No later than April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased inks. By that date, 
Federal agencies that have the responsibility for drafting or reviewing 
specifications for products to be procured shall ensure that the 
relevant specifications require the use of biobased inks.


Sec.  3201.85  Packing and insulating materials.

    (a) Definition. Pre-formed and molded materials that are used to 
hold package contents in place during shipping or for insulating and 
sound proofing applications.
    (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 April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased packing and insulating 
materials. By that date, Federal agencies that have the responsibility 
for drafting or reviewing specifications for products to be procured 
shall ensure that the relevant specifications require the use of 
biobased packing and insulating materials.


Sec.  3201.86  Pneumatic equipment lubricants.

    (a) Definition. Lubricants designed specifically for pneumatic 
equipment, including air compressors, vacuum pumps, in-line 
lubricators, rock drills, jackhammers, etc.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 67 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 April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased pneumatic equipment 
lubricants. By that date, Federal agencies that have the responsibility 
for drafting or reviewing specifications for products to be procured 
shall ensure that the relevant specifications require the use of 
biobased pneumatic equipment lubricants.
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying products within this item may overlap with the EPA-
designated recovered content product: Vehicular Products--re-refined 
lubricating oils. 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 re-refined lubricating 
oil products and which product should be afforded the preference in 
purchasing.

    Note to paragraph (d):  Biobased pneumatic equipment lubricants 
within this designated product category can compete with similar re-
refined lubricating oil products with recycled content. Under the 
Resource Conservation and Recovery Act of 1976, section 6002, the 
U.S. Environmental Protection Agency designated re-refined 
lubricating oil products containing recovered materials as products 
for which Federal agencies must give preference in their purchasing 
programs. The designation can be found in the Comprehensive 
Procurement Guideline, 40 CFR 247.17.

Sec.  3201.87  Wood and concrete stains.

    (a) Definition. Products that are designed to be applied as a 
finish for concrete and wood surfaces and that contain dyes or pigments 
to change the color without concealing the grain pattern or surface 
texture.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 39 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 April 4, 2013, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased wood and concrete 
stains. By that date, Federal agencies that have the responsibility for 
drafting or reviewing specifications for products to be procured shall 
ensure that the relevant specifications require the use of biobased 
wood and concrete stains.

    Dated: March 28, 2012.
Pearlie S. Reed,
Assistant Secretary for Administration, U.S. Department of Agriculture.
[FR Doc. 2012-8068 Filed 4-3-12; 8:45 am]
BILLING CODE 3410-93-P