Designation of Product Categories for Federal Procurement, 34867-34874 [2013-13763]

Agencies

• DEPARTMENT OF AGRICULTURE
• Office of Procurement and Property Management

[Federal Register Volume 78, Number 112 (Tuesday, June 11, 2013)]
[Rules and Regulations]
[Pages 34867-34874]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13763]



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Federal Register / Vol. 78, No. 112 / Tuesday, June 11, 2013 / Rules 
and Regulations

[[Page 34867]]



DEPARTMENT OF AGRICULTURE

Office of Procurement and Property Management

7 CFR Part 3201

RIN 0599-AA16


Designation of Product Categories for Federal Procurement

AGENCY: Office of Procurement and Property Management, USDA.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Agriculture (USDA) is amending the 
Guidelines for Designating Biobased Products for Federal Procurement, 
to add eight 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 adding a new subcategory to one previously designated 
product category. USDA is also establishing minimum biobased content 
for each of these product categories and subcategories. In addition, 
USDA is officially changing the term ``item'' to ``product category.''

DATES: This rule is effective July 11, 2013.

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 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. Discussion of Public Comments
IV. 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 December 5, 
2012, a proposed rule in the Federal Register (FR) for the purpose of 
designating a total of eight product categories, and two new 
subcategories within previously designated product categories, for the 
preferred procurement of biobased products by Federal agencies 
(referred to hereafter in this FR notice as the ``preferred procurement 
program''). This proposed rule can be found at 77 FR 72654. This 
rulemaking is referred to in this preamble as Round 10 (RIN 0599-AA16).
    In the proposed rule, USDA proposed designating the following eight 
product categories for the preferred procurement program: Aircraft and 
boat cleaners; automotive care products; engine crankcase oil; gasoline 
fuel additives; metal cleaners and corrosion removers; microbial 
cleaning products; paint removers; and water turbine bearing oils. USDA 
also proposed to add the following subcategories to previously 
designated product categories: countertops to the composite panels 
category; and wheel bearing and chassis grease to the greases category.
    Today's final rule designates the proposed product categories 
within which biobased products will be afforded Federal procurement 
preference and adds the proposed countertops subcategory to the 
existing composite panels product category. 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 product category. 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

[[Page 34868]]

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.
    The BioPreferred program started using the term product category in 
the fall of 2011 while drafting a proposed rule to amend the 
BioPreferred Program Guidelines (FR DOC  2012-10420, published 
May 1, 2012). The preamble to that proposed rule explains the change 
from ``items'' to ``product categories.'' Below is the text that 
appears in the proposed rule:
    ``3. Replacement of ``Designated Item'' with ``Designated 
Category''
    The current guidelines use the term ``designated item'' to refer to 
a generic grouping of biobased products identified in subpart B as 
eligible for the procurement preference. The use of this term has 
created some confusion, however, because the word ``item'' is also used 
in the guidelines to refer to individual products rather than a generic 
grouping of products. USDA is proposing to replace the term 
``designated item'' with the term ``designated product category.'' In 
addition, USDA is proposing to add a definition for the term 
``qualifying biobased product'' to refer to an individual product that 
meets the definition and minimum biobased content criteria for a 
designated product category and is, therefore, eligible for the 
procurement preference. Although these changes are not required by 
section 9001 of FCEA, USDA believes the proposed terms and definitions 
will add clarity to the rule.''
    Because USDA did not receive any comments opposing this change 
during the 60-day comment period on the proposed rule and because it 
will be some time until the rule is promulgated, USDA is incorporating 
the new product category language in this designation regulation.
    Subcategorization. USDA is subcategorizing three of the product 
categories. Those product categories are: aircraft and boat cleaners; 
metal cleaners and corrosion removers; and microbial cleaning products. 
The subcategories for the aircraft and boat cleaners product category 
are: aircraft cleaners and boat cleaners. For the metal cleaners and 
corrosion removers product category, the subcategories are: stainless 
steel cleaners; other metal cleaners; and corrosion removers. For the 
microbial cleaning products category, the subcategories are: drain 
maintenance products; general cleaners; and wastewater maintenance 
products. USDA is also adding a new subcategory for countertops to the 
composite panels product category designated in Round 2 (73 FR 27954, 
May 14, 2008).
    USDA will continue to gather additional data related to the 
categories designated today and additional subcategories may be created 
in a future rulemaking.
    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. 
USDA has, however, begun to receive additional biobased content data 
associated with manufacturer's applications for certification to use 
the USDA Certified Biobased Product label. These test results are also 
considered when determining the minimum biobased content levels for 
designated product categories.
    In today's final rule, the minimum biobased content for the water 
turbine bearing oils category is based on a single tested product. USDA 
will continue to gather information on the lubricant product categories 
designated today and if additional data on the biobased content for 
products within these designated categories are obtained, USDA will 
evaluate whether the minimum biobased content should be revised in a 
future rule. We are also clarifying definitions of water turbine 
bearing oils versus turbine drip oils.
    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 one product 
category for Federal preferred procurement for which there may be 
overlap with an EPA-designated recovered content product. The product 
category is engine crankcase oils, 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 products within three of the product categories, or 
subcategories, being designated today are available through the 
AbilityOne Program. These are: Composite Panels--Countertops, Metal 
Cleaners and Corrosion Removers--Stainless Steel Cleaners, and Metal 
Cleaners and Corrosion Removers--Other Metal Cleaners. 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

[[Page 34869]]

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. Discussion of Public Comments

Summary of Changes

    USDA solicited comments on the proposed rule for 60 days ending on 
February 4, 2013. USDA received four comments by that date. Two of the 
comments were from manufacturers of biobased products, one was from 
another Federal agency, and the fourth was from a trade association. 
The comments are presented below, along with USDA's responses, and are 
shown under the product categories to which they apply.
    USDA received comments on wheel bearing and chassis greases, 
crankcase oils, gasoline fuel additives, and microbial cleaning 
products. After consideration of the comments, USDA has decided to: (1) 
Delay the designation of the wheel bearing and chassis greases 
subcategory; (2) revise the minimum biobased content of the engine 
crankcase oil product category upward to 25 percent from the proposed 
level of 18 percent; and (3) add clarification to the definition of the 
water turbine bearing oils product category. Additional information on 
these changes is presented below in the discussion of public comments.

Public Comments

General Process Comments
    A trade association had a number of comments on how USDA 
administers the BioPreferred program. This same trade association had 
also made earlier similar comments July 2, 2012 in response to the 
proposed amendments to the revised Program Guidelines. The final 
guidelines have not yet been published. Although we will discuss these 
process comments herein, USDA will address the comments at a later date 
in revisions to the Program Guidelines, to which they are directly 
applicable.
    Comment: The trade association focused their comments on ``the 
environmental elements of the BioPreferred program'' and stated 
products ``should be designated and preferred based upon their improved 
health profile, which could include manufacturing improvements, 
environmental and/or health benefits, and disposal mechanisms.'' The 
association further commented that biobased content, ``While a key 
factor, is only one of many potential environmental considerations.''
    Response: Although the BioPreferred program is often associated 
with environmental programs and biobased products generally offer 
environmental benefits, USDA is charged with considering products that 
contain biobased carbon which Federal agencies are required to buy. The 
program's rationale is to use the purchasing power of the Federal 
government to pull the market for biobased products that are made from 
agricultural commodities. USDA does not have the legislative mandate to 
consider all environmental factors in designating a product category.
    Comment: The trade association is critical of sample sizes and 
calls for ``more robust'' sample sizes.
    Response: This is a voluntary program and USDA cannot collect any 
more information than companies are willing to provide. Moreover, by 
law USDA cannot ask biobased companies to supply any more information 
than non-biobased competitors. It is up to Federal procurement 
officials to solicit additional information from biobased companies to 
help in the procurement decision-making process.
    Comment: The trade association calls for USDA to provide more 
information on ``exclusions'' (i.e., price, performance and 
availability).
    Response: As indicated above, USDA cannot mandate that private 
companies provide such data. USDA believes consideration of 
exclusionary factors is a matter to be discussed on a case-by-case 
basis between buyer and seller.
    Comment: The commenter stated that confidential business 
information (CBI) should not be posted on the BioPreferred Web site.
    Response: USDA agrees and does not post CBI.
Engine Crankcase Oil
    Comment: One commenter felt USDA was ``accommodating to the less-
renewable end of the range'' with an ``orphan data point'' at 21 
percent.
    Response: USDA appreciates the comment. The commenter notes 
correctly that 21 percent was on the lower end of the range and does 
appear to be an outlier. In addition to this public comment, USDA has 
received information from a major marketer of engine crankcase oils 
stating that they have a line of products with biobased contents 
between 25 and 30 percent. In light of this new information, we are 
revising the minimum content to 25 percent.
    We believe that this revision accomplishes several objectives. 
First, the minimum will not be based on a single product that appears 
to be somewhat of an outlier relative to the remainder of the data. 
Second, it is consistent with our stated plans to update minimum 
biobased contents with the most recent data whenever the opportunity 
arises. The original data point upon which the proposed 18% minimum 
biobased content was based is over 2 years old, while the newer 
information was obtained within the past 6 months. Third, USDA believes 
that establishing the minimum biobased content at a level that is 
achieved by a major marketer of engine oils provides more flexibility 
to purchasing agencies and more public visibility for the BioPreferred 
program.
Gasoline Fuel Additives
    Comment: One commenter asked that USDA lower the biobased content 
from 92 percent to 70 percent.
    Response: USDA is charged with administrating a program where 
Federal buyers are charged with procuring products with the highest 
biobased content possible that will still deliver performance. In the 
absence of any technical data to the contrary, we have decided to keep 
the content level at the

[[Page 34870]]

proposed level of 92 percent. However, if data can be identified to 
confirm the content level of 92 percent is not technically effective or 
necessary, USDA will revisit that content specification in later 
rulemaking.
Microbial Cleaning Products
    Comment: One commenter stated the ``NAVSEA 6840-U.S. Navy surface 
ship (non-submarine) authorized chemical cleaning products and 
dispensing systems)'' should not be cited as a test method, but simply 
as a listing of approved products. The commenter further stated it 
should not necessarily be listed as a general reference because the 
products listed here are covered by the general exemption of combat 
related missions.
    Response: USDA agrees with the suggestion of the Federal commenter.
Water Turbine Bearing Oils
    Comment: One commenter noted water turbine bearing oils defined as 
``lubricants that are specially formulated for use in bearings found in 
water turbines'' which is different from an earlier designation, 
``turbine drip oils'' which are introduced when oils are introduced 
down the shaft of producing water wells that lubricate the bearings of 
submerged pump components.
    Response: USDA appreciates the clarification and has revised the 
definition in the final rule to indicate these latter turbine drip oils 
are used to lubricate bearings of electric power generating water 
turbines.
Wheel Bearing and Chassis Grease
    Comment: One commenter stated that ``the wheel bearing and chassis 
grease which cannot be reached with a biobased content of 50 percent'' 
and pointed out that there is a problem meeting the GC ASTM-D-4950 part 
of the specification because of the high temperature process used to 
make lithium complex grease. Another commenter asked that USDA not list 
chassis grease, as there is ``incompatibility'' between existing 
petroleum-based greases and biobased greases.
    Response: USDA believes the ASTM issue is a complex one and 
requires additional technical data. Thus, USDA will not list the 
subcategory of wheel bearing and chassis grease at this time but will 
investigate and defer designation to a later round. As regards the 
incompatibility issue, USDA does not believe potential incompatibility 
represents a reason not to designate a biobased category or 
subcategory. If a particular product will not function properly in a 
certain application, that product obviously will not meet performance 
requirements and thus need not be shown the procurement preference.

IV. 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 eight 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 on individual businesses, including small businesses. USDA 
anticipates that the biobased preferred procurement program will 
provide additional opportunities for businesses and manufacturers to 
begin supplying products under the 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 eight product categories provides the 
benefits outlined in the objectives of section 9002; to increase 
domestic demand for many agricultural commodities that can serve as 
feed stocks 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

[[Page 34871]]

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 agencies and their contractors, small 
governmental (city, county, etc.) agencies are not affected. Thus, the 
final rule 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 Federal 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 proposed for designation for Federal preferred 
procurement in this rule are expected to be included under the 
following NAICS codes: 321999 (all other wood product manufacturing), 
324191 (petroleum lubricating oil and grease manufacturing), 325510 
(paint and coating manufacturing), and 325612 (polish and other 
sanitation goods manufacturing). USDA obtained information on these 
four NAICS categories from the U.S. Census Bureau's Economic Census 
database. USDA found that the Economic Census reports about 4,270 
companies within these 4 NAICS categories and that these companies own 
a total of about 4,860 establishments. Thus, the average number of 
establishments per company is about 1.14. The Census data also reported 
that of the 4,860 individual establishments, about 4,850 (99 percent) 
have fewer than 500 employees. USDA also found that the overall average 
number of employees per company among these industries is about 30 and 
that the petroleum lubricating oil and grease industry has the highest 
average number of employees per company with an average of almost 50. 
Thus, nearly all of the businesses fall within the Small Business 
Administration's definition of a small business (less 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 will 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 will 
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 final 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.

[[Page 34872]]

G. Executive Order 12372: Intergovernmental Review of Federal Programs

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

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

    Today's final rule does not significantly or uniquely affect ``one 
or more Indian tribes . . . the relationship between the Federal 
Government and Indian tribes, or . . . the distribution of power and 
responsibilities between the Federal Government and Indian tribes.'' 
Thus, no further action is required under Executive Order 13175.

I. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 through 3520), the information collection under this final rule is 
currently approved under OMB control number 0503-0011.

J. E-Government Act Compliance

    USDA is committed to compliance with the E-Government Act, which 
requires Government agencies, in general, to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. USDA is implementing an electronic 
information system for posting information voluntarily submitted by 
manufacturers or vendors on the products they intend to offer for 
preferred procurement under each designated product category. 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:

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. Amend Sec.  3201.19 by adding new paragraphs (a)(6) and (b)(6) and 
revising paragraph (c) to read as follows:


Sec.  3201.19  Composite panels.

    (a) * * *
    (6) Countertops. Engineered products designed to serve as 
horizontal work surfaces in locations such as kitchens, break rooms or 
other food preparation areas, bathrooms or lavatories, and workrooms.
    (b) * * *
    (6) Countertops--89 percent.
    (c) Preference compliance dates. (1) No later than May 14, 2009, 
procuring agencies, in accordance with this part, will give a 
procurement preference for those qualifying biobased composite panels 
specified in paragraphs (a)(1) through (a)(5) of this section. By that 
date, Federal agencies that have the responsibility for drafting or 
reviewing specifications for items to be procured shall ensure that the 
relevant specifications require the use of biobased composite panels.
    (2) No later than June 11, 2014, procuring agencies, in accordance 
with this part, will give a procurement preference for those qualifying 
biobased composite panels specified in paragraph (a)(6) of this 
section. By that date, Federal agencies that have the responsibility 
for drafting or reviewing specifications for items to be procured shall 
ensure that the relevant specifications require the use of biobased 
composite panels.
* * * * *

0
3. Add Sec. Sec.  3201.100 through 3201.107 to subpart B to read as 
follows:
Sec.
3201.100 Aircraft and boat cleaners.
3201.101 Automotive care products.
3201.102 Engine crankcase oil.
3201.103 Gasoline fuel additives.
3201.104 Metal cleaners and corrosion removers.
3201.105 Microbial cleaning products.
3201.106 Paint removers.
3201.107 Water turbine bearing oils.


Sec.  3201.100  Aircraft and boat cleaners.

    (a) Definition. (1) Aircraft and boat cleaners are products 
designed to remove built-on grease, oil, dirt, pollution, insect 
reside, or impact soils on both interior and exterior of aircraft and/
or boats.
    (2) Aircraft and boat cleaners for which Federal preferred 
procurement applies are:
    (i) Aircraft cleaners. Cleaning products designed to remove built-
on grease, oil, dirt, pollution, insect reside, or impact soils on both 
interior and exterior of aircraft.
    (ii) Boat cleaners. Cleaning products designed to remove built-on 
grease, oil, dirt, pollution, insect reside, or impact soils on both 
interior and exterior of boats.
    (b) Minimum biobased content. The minimum biobased content for all 
aircraft and boat cleaners 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) Aircraft cleaners--48 percent.
    (2) Boat cleaners--38 percent.
    (c) Preference compliance date. No later than June 11, 2014, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased aircraft and boat 
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 aircraft and boat cleaners.


Sec.  3201.101  Automotive care products.

    (a) Definition. Products such as waxes, buffing compounds, 
polishes, degreasers, soaps, wheel and tire cleaners, leather care 
products, interior cleaners, and fragrances that are formulated for 
cleaning and protecting automotive surfaces.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 75 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 June 11, 2014, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased automotive 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

[[Page 34873]]

relevant specifications require the use of biobased automotive care 
products.


Sec.  3201.102  Engine crankcase oils.

    (a) Definition. Lubricating products formulated to provide 
lubrication and wear protection for four-cycle gasoline or diesel 
engines.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 25 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 June 11, 2014, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased engine crankcase oils. 
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 
engine crankcase oils.
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying products within this item may overlap with the EPA-
designated recovered content product: 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): Engine crankcase oils 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.  3201.103  Gasoline fuel additives.

    (a) Definition. Chemical agents added to gasoline to increase 
octane levels, improve lubricity, and provide engine cleaning 
properties to gasoline-fired engines.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 92 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 June 11, 2014, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased gasoline fuel additives. 
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 
gasoline fuel additives.


Sec.  3201.104  Metal cleaners and corrosion removers.

    (a) Definition. (1) Products that are designed to clean and remove 
grease, oil, dirt, stains, soils, and rust from metal surfaces.
    (2) Metal cleaners and corrosion removers for which Federal 
preferred procurement applies are:
    (i) Corrosion removers. Products that are designed to remove rust 
from metal surfaces through chemical action.
    (ii) Stainless steel cleaners. Products that are designed to clean 
and remove grease, oil, dirt, stains, and soils from stainless steel 
surfaces.
    (iii) Other metal cleaners. Products that are designed to clean and 
remove grease, oil, dirt, stains, and soils from metal surfaces other 
than stainless steel.
    (b) Minimum biobased content. The minimum biobased content for all 
metal cleaners and corrosion removers 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) Corrosion removers--71 percent.
    (2) Stainless steel cleaners--75 percent.
    (3) Other metal cleaners--56 percent.
    (c) Preference compliance date. No later than June 11, 2014, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased metal cleaners and 
corrosion 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 metal cleaners and corrosion removers.


Sec.  3201.105  Microbial cleaning products.

    (a) Definition. (1) Cleaning agents that use microscopic organisms 
to treat or eliminate waste materials within drains, plumbing fixtures, 
sewage systems, wastewater treatment systems, or on a variety of other 
surfaces. These products typically include organisms that digest 
protein, starch, fat, and cellulose.
    (2) Microbial cleaning products for which Federal preferred 
procurement applies are:
    (i) Drain maintenance products. Products containing microbial 
agents that are intended for use in plumbing systems such as sinks, 
showers, and tubs.
    (ii) Wastewater maintenance products. Products containing microbial 
agents that are intended for use in wastewater systems such as sewer 
lines and septic tanks.
    (iii) General cleaners. Products containing microbial agents that 
are intended for multi-purpose cleaning in locations such as 
residential and commercial kitchens and bathrooms.
    (b) Minimum biobased content. The minimum biobased content for all 
microbial cleaning products shall be based on the amount of qualifying 
biobased carbon in the product as a percent of the weight (mass) of the 
total organic carbon in the finished product. The applicable minimum 
biobased contents for the Federal preferred procurement products are:
    (1) Drain maintenance products--45 percent.
    (2) Wastewater maintenance products--44 percent.
    (3) General cleaners--50 percent.
    (c) Preference compliance date. No later than June 11, 2014, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased microbial cleaning 
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 microbial cleaning products.


Sec.  3201.106  Paint removers.

    (a) Definition. Products formulated to loosen and remove paint from 
painted surfaces.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 41 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 June 11, 2014, 
procuring agencies, in accordance with this part,

[[Page 34874]]

will give a procurement preference for qualifying biobased paint 
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 paint removers.


Sec.  3201.107  Water turbine bearing oils.

    (a) Definition. Lubricants that are specifically formulated for use 
in the bearings found in water turbines for electric power generation. 
Previously designated turbine drip oils are used to lubricate bearings 
of shaft driven water well turbine pumps.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 46 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 June 11, 2014, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased water turbine bearing 
oils. 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 
water turbine bearing oils.

     Dated: June 5, 2013.
Gregory L. Parham,
Acting Assistant Secretary for Administration, U.S. Department of 
Agriculture.
[FR Doc. 2013-13763 Filed 6-10-13; 8:45 am]
BILLING CODE 3410-TX-P