[Federal Register Volume 73, Number 94 (Wednesday, May 14, 2008)]
[Rules and Regulations]
[Pages 27927-27956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10107]



[[Page 27927]]

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Part III





Department of Agriculture





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Office of Energy Policy and New Uses



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7 CFR Part 2902



Designation of Biobased Items for Federal Procurement; Final Rule

Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Rules 
and Regulations

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DEPARTMENT OF AGRICULTURE

Office of Energy Policy and New Uses

7 CFR Part 2902

RIN 0503-AA30


Designation of Biobased Items for Federal Procurement

AGENCY: Office of Energy Policy and New Uses, 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 nine sections to designate items, including subcategories, 
within which biobased products will be afforded Federal procurement 
preference. USDA also is establishing minimum biobased content for each 
of these items and subcategories.
    In addition, USDA is amending the guidelines by providing 
exemptions to the Department of Defense and the National Aeronautic and 
Space Administration from the preferred procurement requirements. USDA 
is also making minor technical amendments to several sections of the 
guidelines to update information on the applicable Web site citation 
and to provide additional information on products that may overlap with 
products designated for preferred procurement under the U.S. 
Environmental Protection Agency's Comprehensive Procurement Guideline 
for Products Containing Recovered Materials.

DATES: This rule is effective June 13, 2008.

FOR FURTHER INFORMATION CONTACT: Marvin Duncan, USDA, Office of the 
Chief Economist, Office of Energy Policy and New Uses, Room 4059, South 
Building, 1400 Independence Avenue, SW., MS-3815 Washington, DC 20250-
3815; e-mail: [email protected]; phone (202) 401-0461. Information 
regarding the Federal Procurement of Biobased Products (one part of the 
BioPreferred Program) is available on the Internet at http://www.biopreferred.gov.

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

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

I. Authority

    These items, including their subcategories, are designated under 
the authority of section 9002 of the Farm Security and Rural Investment 
Act of 2002 (FSRIA), 7 U.S.C. 8102 (referred to in this document as 
``section 9002'').

II. Background

    As part of the Federal Procurement of Biobased Products, USDA 
published on August 17, 2006, two proposed rules in the Federal 
Register (FR) for the purposes of designating a total of 20 items for 
the preferred procurement of biobased products by Federal agencies 
(referred hereafter in this FR notice as the ``preferred procurement 
program''). One of the proposed rules, RIN 0503-AA30, can be found at 
71 FR 47566. The other proposed rule, RIN 0503-AA31, can be found at 71 
FR 47590. This FR notice addresses the RIN 0503-AA30 proposed rule. The 
other proposed rule is addressed in a separate FR notice. These two 
rulemakings are referred to in the preamble and on the BioPreferred Web 
site as Round 2 (RIN 0503-AA30) and Round 3 (RIN 0503-AA31).
    The Round 2 proposed rule proposed designating the following items 
for the preferred procurement program: Adhesive and mastic removers; 
plastic insulating foam for residential and commercial construction; 
\1\ hand cleaners and sanitizers; composite panels; fluid-filled 
transformers; disposable containers; \2\ fertilizers; metalworking 
fluids; \3\ sorbents; and graffiti and grease remover products.
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    \1\ At proposal, this item was identified as ``insulating foam 
for wall construction.'' Based on comments received, and as 
explained in this preamble, USDA has renamed this item as ``plastic 
insulating foam for residential and commercial construction.''
    \2\ At proposal, this item was identified as ``biodegradable 
containers.'' Based on comments received, and as explained in this 
preamble, USDA has renamed this item as ``disposable containers.''
    \3\ Based on comments received, and on additional data obtained, 
USDA has combined the proposed ``metalworking fluids'' item with the 
``cutting, drilling, and tapping oils'' item that was proposed for 
designation on October 11, 2006 (71 FR 59862). The combined item is 
designated as ``metalworking fluids'' and is included in the Round 4 
final rulemaking.
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    Today's final rule designates the following nine items, including 
subcategories, within which biobased products will be afforded Federal 
procurement preference: Adhesive and mastic removers; plastic 
insulating foam for residential and commercial construction; hand 
cleaners and sanitizers, including hand cleaners and hand sanitizers as 
subcategories; composite panels, including plastic lumber composite 
panels, acoustical composite panels, interior panels, structural 
interior panels, and structural wall panels as subcategories; fluid-
filled transformers, including synthetic ester-based transformer fluids 
and vegetable oil-based transformer fluids as subcategories; disposable 
containers; fertilizers; sorbents; and graffiti and grease removers. 
USDA has determined that each of these items meets the necessary 
statutory requirements; that they are being produced with biobased 
products; and that their procurement will carry out the following 
objectives of section 9002: To improve demand for biobased products; to 
spur development of the industrial base through value-added 
agricultural processing and manufacturing in rural communities; and to 
enhance the Nation's energy security by substituting biobased products 
for products derived from imported oil and natural gas.
    When USDA designates by rulemaking an item (a generic grouping of 
products) for preferred procurement under the BioPreferred Program, 
manufacturers of all products under the umbrella of that item that meet 
the requirements to qualify for preferred procurement can claim that 
status for their products. To qualify for preferred procurement, a 
product must be within a designated item and must contain at least the 
minimum biobased content established for the designated item. When the 
designation of specific items is finalized, USDA will invite the 
manufacturers of these qualifying products to post information on the 
product, contacts, and performance testing on its BioPreferred Web 
site, http://www.biopreferred.gov. Procuring agencies will be able to 
utilize this Web site as one tool to determine the availability of 
qualifying biobased products under a designated item. Once USDA 
designates an item, procuring agencies are required generally to 
purchase biobased products within these designated items, including 
their

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subcategories, where the purchase price of the procurement item exceeds 
$10,000 or where the quantity of such items or of functionally 
equivalent items purchased over the preceding fiscal year equaled 
$10,000 or more.
    Subcategorization. Most of the items USDA is considering for 
designation for preferred procurement cover a wide range of products. 
For some items, there are groups of products within the item that meet 
different markets and uses and/or different performance specifications. 
For example, within the item ``hand cleaners and sanitizers,'' some 
products are required to meet performance specifications for 
sanitizing, while other products do not need to meet these 
specifications. Where such subgroups, or subcategories, exist, USDA 
intends to create subcategories. Thus, for example, for the item ``hand 
cleaners and sanitizers,'' USDA has determined it is reasonable to 
create a ``hand cleaner'' subcategory and a ``hand sanitizer'' 
subcategory. Sanitizing specifications would be applicable to the 
latter subcategory, but not the former. In sum, USDA looks at the 
products within each item to evaluate whether there are groups of 
products within the item that meet different performance specifications 
and, where USDA finds this type of difference, it intends to create 
subcategories.
    For some items, however, USDA may not have sufficient information 
at the time of proposal to create subcategories within an item. For 
example, USDA may know that there are different performance 
specifications that de-icing products are required to meet, but it has 
only information on one type of de-icing product. In such instances, 
USDA may either designate the item without creating subcategories 
(i.e., defer the creation of subcategories) or designate one 
subcategory and defer designation of other subcategories within the 
item until additional information is obtained on products within these 
other subcategories.
    Within today's rulemaking, USDA has created subcategories within 
three items. These items are: Hand cleaners and sanitizers (i.e., hand 
cleaners, hand sanitizers); composite panels (i.e., plastic lumber 
composite panels, acoustical composite panels, interior panels, 
structural interior panels, and structural wall panels); and fluid-
filled transformers (i.e., synthetic ester-based fluids and vegetable 
oil-based fluids).
    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. In addition to considering the 
biobased content test data for each item, USDA also considers other 
factors when establishing the minimum biobased content. These other 
factors include: Public comments received on the proposed minimum 
biobased contents; product performance information to justify the 
inclusion of products at lower levels of biobased content; and the 
range, groupings, and breaks in the biobased content test data array. 
Consideration of this information allows USDA to establish minimum 
biobased contents on a broad set of factors to assist the Federal 
procurement community in its decision to purchase biobased products.
    USDA makes every effort to obtain biobased content test data on 
multiple products within each item. For most designated items, USDA has 
biobased content test data on more than one product within a designated 
item. However, in some cases, USDA has been able to obtain biobased 
content data for a single product within a designated item. As USDA 
obtains additional data on the biobased contents for products within 
these nine designated items and their subcategories, USDA will evaluate 
whether the minimum biobased content for a designated item or 
subcategory will be revised.
    USDA anticipates that the minimum biobased content of an item or 
subcategory that is based on a single product is more likely to change 
as additional products in those items and subcategories are identified 
and tested. In today's rulemaking, the synthetic ester-based 
subcategory under the fluid-filled transformers designated item and the 
acoustical composite panels subcategory under the composite panels 
designated item are based on a single tested product.
    For all items and subcategories where additional information 
indicates that it is appropriate to revise a minimum biobased content 
established under today's rulemaking, USDA will propose the change in a 
notice in the Federal Register to allow public comment on the proposed 
revised minimum biobased content. USDA will then consider the public 
comments and issue a final rulemaking on the minimum biobased content.
    Biodegradability. Many of the products within items being 
designated for the preferred procurement program are designed to be 
disposed of after a single use and/or used in environmentally sensitive 
applications. USDA believes that biodegradability is an important 
feature that should be considered when purchasing, using, and disposing 
of these products.
    In simple terms, biodegradability measures the ability of 
microorganisms present in the disposal environment to completely 
consume the biobased carbon product within a reasonable time frame and 
in the specified environment.
    Composting is one such environment under which biodegradability 
occurs. In that composting environment, the explanation of the 
environment, the degree of microbial utilization (biodegradation), and 
the time frame within which it occurs are specified through established 
standards. Composting is but one environment under which 
biodegradability occurs. For example, non-floating biodegradable 
plastics can also biodegrade in a marine environment.
    For some designated items and subcategories, USDA is requiring 
biodegradability as a prerequisite for receiving preferred procurement 
status under the BioPreferred Program. For most items and 
subcategories, however, USDA has decided not to require 
biodegradability as a prerequisite for receiving preferred procurement 
status. For products within a designated item for which USDA will 
require biodegradability, USDA will specify the appropriate ASTM 
standards.
    USDA believes that the relationship between the performance and the 
biodegradability of products within an item (or subcategory) must be 
considered before biodegradability is included as a prerequisite for a 
designated item. For some designated items, product performance is the 
critical factor in a purchaser's decision as to which product to 
purchase. Within other designated items, especially those designed for 
one-time use, disposal considerations may be equally important as 
performance considerations.
    Where USDA judges product performance to be the key decision-making 
factor for purchasers, USDA will not require biodegradability as a 
prerequisite for designation of items to participation in the preferred 
procurement program. In those cases where disposal considerations are 
believed to be as important as performance, however, USDA will require 
biodegradability for products within the designated item (or 
subcategory) if there are established biodegradability standards.
    In this rulemaking, products that fall within the disposable 
containers designated item are required to meet biodegradability 
standards to receive preferred procurement under the BioPreferred 
Program. For the remaining items in this rulemaking, USDA believes that 
the product performance

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considerations outweigh biodegradability. USDA does, however, encourage 
procuring agencies to purchase biodegradable products in any case where 
they meet the agencies' performance needs.
    USDA will continue to gather additional information on the 
relationship between performance and biodegradability of products 
within designated items and may add biodegradability as a prerequisite 
for other items at a later date. USDA will also make information 
regarding biodegradability of items available on the BioPreferred Web 
site.
    Preference compliance date. Because USDA has identified only one 
manufacturer of products within the synthetic ester-based fluid-filled 
transformers subcategory, the preference compliance date is deferred 
until USDA identifies two or more manufacturers of products in this 
subcategory. When it identifies two or more manufacturers, USDA will 
publish a document in the Federal Register announcing that Federal 
agencies will have one year from the date of publication of that 
announcement to give procurement preference to biobased synthetic 
ester-based fluid-filled transformers.
    USDA notes that although only one product from the acoustical 
composite panels subcategory has been tested for biobased content, nine 
manufacturers of products in this subcategory have been identified. 
Thus, USDA is not deferring the preference compliance date for this 
subcategory.
    Overlap with EPA's Comprehensive Procurement Guideline program for 
recovered content products. Some of the products that are biobased 
items designated for preferred procurement may also be items the 
Environmental Protection Agency (EPA) has designated under the EPA's 
Comprehensive Procurement Guideline (CPG) for Products Containing 
Recovered Materials. Where that occurs, an EPA-designated recovered 
content product (also known as ``recycled content products'' or ``EPA-
designated products'') has priority in Federal procurement over the 
qualifying biobased product as identified in 7 CFR 2902.2. In 
situations where it believes there may be an overlap, USDA is asking 
manufacturers of qualifying biobased products to provide additional 
product and performance information to Federal agencies to assist them 
in determining whether the biobased products in question are, or are 
not, the same products for the same uses as the recovered content 
products. As this information becomes available, USDA will place it on 
the BioPreferred Web site with its catalog of qualifying biobased 
products.
    In cases where USDA believes an overlap with EPA-designated 
recovered content products may occur, manufacturers are being asked to 
indicate the various suggested uses of their product and the 
performance standards against which a particular product has been 
tested. In addition, depending on the type of biobased product, 
manufacturers are being asked to provide other types of information, 
such as whether the product contains petroleum-based components and 
whether the product contains recovered materials. Federal agencies may 
also ask manufacturers for information on a product's biobased content 
and its profile against environmental and health measures and life-
cycle costs (the Building for Environmental and Economic Sustainability 
(BEES) analysis or ASTM Standard D7075 for evaluating and reporting on 
environmental performance of biobased products). Such information will 
permit agencies to determine whether or not an overlap occurs.
    Section 6002 of RCRA requires a procuring agency procuring an item 
designated by EPA generally to procure such items composed of the 
highest percentage of recovered materials content practicable. However, 
a procuring agency may decide not to procure such an item based on a 
determination that the item fails to meet the reasonable performance 
standards or specifications of the procuring agency. An item with 
recovered materials content may not meet reasonable performance 
standards or specifications, for example, if the use of the item with 
recovered materials content would jeopardize the intended end use of 
the item.
    Where a biobased item is used for the same purposes and to meet the 
same Federal agency performance requirements as an EPA-designated 
recovered content product, the Federal agency must purchase the 
recovered content product. For example, if a biobased hydraulic fluid 
is to be used as a fluid in hydraulic systems and because ``lubricating 
oils containing re-refined oil'' has already been designated by EPA for 
that purpose, then the Federal agency must purchase the EPA-designated 
recovered content product, ``lubricating oils containing re-refined 
oil,'' assuming such oil is available. If, on the other hand, that 
biobased hydraulic fluid is to be used to address a Federal agency's 
certain environmental or health performance requirements that the EPA-
designated recovered content product would not meet, then the biobased 
product should be given preference, subject to cost, availability, and 
performance.
    This final rule designates five items for preferred procurement for 
which there may be overlap with EPA-designated recovered content 
products. These items are: (1) Plastic insulating foam for residential 
and commercial construction, (2) composite panels, (3) disposable 
containers, (4) sorbents, and (5) fertilizer. Depending on how they are 
to be used, qualifying biobased products under these five items may 
overlap, respectively, with building insulation; laminated paperboard 
and structural fiberboard, shower and restroom dividers, or signage; 
paper and paper products; sorbents; and fertilizer made from recovered 
organic material. EPA provides recovered materials content 
recommendations for these five recovered content products in various 
Recovered Materials Advisory Notices (RMAN), including RMAN I, RMAN II, 
RMAN III, and RMAN V. The RMAN recommendations for each of these CPG 
products can be found by accessing EPA's Web site http://www.epa.gov/epaoswer/non-hw/procure/products.htm and then clicking on the 
appropriate product name.
    Future designations. In making future designations, USDA will 
continue to conduct market searches to identify manufacturers of 
biobased products within designated items. USDA will then contact the 
identified manufacturers to solicit samples of their products for 
voluntary submission for biobased content testing and for the BEES 
analytical tool. Based on these results, USDA will then propose new 
items for designation for preferred procurement.
    As stated in the preamble to the first six items designated for 
preferred procurement (71 FR 13686, March 16, 2006), USDA plans to 
identify approximately 10 items in each future rulemaking. USDA has 
developed a preliminary list of items for future designation. This list 
is available on the BioPreferred Web site. While this list presents an 
initial prioritization of items for designation, USDA cannot identify 
with any certainty which items will be presented in each of the future 
rulemakings. Items may be added or dropped and the information 
necessary to designate an item may take more time to obtain than an 
item lower on the prioritization list.
    Exemptions. In an earlier item designation rule (71 FR 13686), USDA 
created exemptions from the preferred procurement program's 
requirements for procurements involving combat or combat-related 
missions and for

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spacecraft systems and launch support equipment. Since publication of 
that final rule in the Federal Register, and in response to comments 
from the Department of Defense (DoD) and NASA (see General Comments, 
below), USDA has decided to create ``blanket'' exemptions for all items 
used in products or systems designed or procured for combat or combat-
related missions and for spacecraft systems and launch support 
equipment, which will apply to all items designated for the procurement 
preference. Accordingly, in order to avoid repetition, this final rule 
removes all the exemption references contained in individual item 
designations and adds the identical language, as a blanket exemption, 
to the Guidelines, in subpart A.

III. Summary of Changes

    As the result of comments received on the proposed rule (see 
Section IV), USDA made changes to the rule, which are summarized below.
    Items combined. The proposed ``metalworking fluids'' item has been 
combined with the ``cutting, drilling, and tapping oils'' item that was 
proposed for designation on October 11, 2006 (71 FR 59862). The 
combined item is now known as ``metalworking fluids'' and includes 
three subcategories: straight oils; high performance soluble, semi-
synthetic, and synthetic metalworking fluids; and general purpose 
soluble, semi-synthetic, and synthetic metalworking fluids. The 
``metalworking fluids'' item is now included in the Round 4 final 
rulemaking replacing the proposed ``cutting, drilling, and tapping 
oils'' item.
    Item names. The names for two of the remaining nine items were 
revised. ``Insulating foam for wall construction'' is now ``plastic 
insulating foam for residential and commercial construction.'' 
``Biodegradable containers'' is now ``disposable containers.''
    Item definitions. The definitions for six of the remaining nine 
items were modified to varying degrees. These six items are: Adhesive 
and mastic removers; plastic insulating foam for residential and 
commercial construction; hand cleaners and sanitizers; composite 
panels; disposable containers; and fertilizers. Some definitions were 
modified and/or added in order to address the addition of subcategories 
(as discussed in the following paragraph).
    Subcategories. Subcategories were created for three items to 
reflect the different use applications where information was available. 
Hand cleaners and sanitizers were subcategorized into (1) hand cleaners 
and (2) hand sanitizers. Composite panels were subcategorized into (1) 
plastic lumber composite panels, (2) acoustical composite panels, (3) 
interior panels, (4) structural interior panels, and (5) structural 
wall panels. Fluid-filled transformers were subcategorized into (1) 
synthetic ester-based fluid-filled transformers and (2) vegetable oil-
based fluid-filled transformers.
    Minimum biobased contents. Several of the proposed minimum biobased 
contents for the designated items have changed for the final rule in 
response to public comments and in consideration of available product 
performance information. As a result of the comments received regarding 
the proposed minimum biobased contents and the availability of 
additional biobased content tests for several items, USDA re-evaluated 
the proposed minimum biobased contents of all of the items.
    Items for which the minimum biobased content was changed from the 
proposed level are presented here and the rationale for the changes is 
discussed in the section of this preamble presenting the item-specific 
comments and responses.
    For plastic insulating foam, the proposed minimum biobased content 
of 8 percent was changed to 7 percent.
    For the proposed hand cleaner item the proposed minimum biobased 
content of 18 percent was changed to 64 percent for the hand cleaners 
subcategory and 73 percent for the hand sanitizers subcategory.
    For the proposed composite panels item the proposed minimum 
biobased content of 26 percent was changed for each of the newly 
established subcategories. In this final rule, minimum biobased 
contents were set for each subcategory, as follows: Plastic lumber 
composite panels--23 percent, acoustical composite panels--37 percent, 
interior panels--55 percent, structural interior panels--89 percent, 
and structural wall panels--94 percent.
    For the proposed fluid-filled transformers item the proposed 
minimum biobased content of 66 percent was retained for the synthetic 
ester-based subcategory and the minimum biobased content for the 
vegetable oil-based subcategory was set at 95 percent.
    For the proposed biodegradable containers item (now disposable 
containers), the proposed minimum biobased content of 96 percent was 
changed to 72 percent.
    For sorbents, the proposed minimum biobased content of 52 percent 
was changed to 89 percent.
    For graffiti and grease removers, the proposed minimum biobased 
content of 21 percent was changed to 34 percent.
    Preference compliance date. For the synthetic ester-based fluid-
filled transformers subcategory, the preference compliance date is 
deferred until USDA identifies two or more manufacturers in this 
subcategory. When it identifies two or more manufacturers in this 
subcategory, USDA will publish a document in the Federal Register 
announcing that Federal agencies will have one year from the date of 
publication of that announcement to give procurement preference to 
biobased synthetic ester-based fluid-filled transformers.
    Overlap with EPA CPG products. For composite panels, potential 
overlap with EPA CPG products was added to the final rule. Then, for 
all items that may overlap with EPA CPG products (plastic insulating 
foam for residential and commercial construction; composite panels; 
disposable containers; sorbents; and fertilizer), a note was added to 
facilitate finding information on the EPA CPG products.
    Biodegradability. For disposable containers, a biodegradability 
requirement was added.
    Exemptions. Exemptions from the preferred procurement requirements 
were added for all items, including their subcategories, used in 
certain applications within DoD and NASA. For DoD, exemptions were 
provided for ``products or systems designed or procured for combat or 
combat-related missions.'' For NASA, exemptions were provided for 
``spacecraft systems and launch support equipment.'' These exemptions 
were added in the Guidelines for the procurement program (subpart A) 
rather than under each item designation. At proposal, this exemption 
was proposed only for the fluid filled transformer item. Additional 
discussion of this decision is presented in the responses to comments 
later in this Preamble.

IV. Discussion of Comments

    USDA solicited comments on the proposed rule for 60 days ending on 
October 16, 2006. USDA received comments from 29 commenters by that 
date. The comments were from individual manufacturers, trade 
organizations, private groups, and Federal agencies.
    The comments contained in this Federal Register (FR) notice address 
general and specific comments related to Round 2 items. In addition to 
the

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information provided in the responses to public comments presented in 
this preamble, USDA has prepared a technical support document titled 
``Technical Support for Final Rule--Round 2 Designated Items,'' which 
contains documentation of USDA's efforts to research and respond to 
public comments. The technical support document is available on the 
BioPreferred Web site. The technical support document can be located by 
clicking on the Proposed and Final Regulations link on the left side of 
the BioPreferred Web site's home page (http://www.biopreferred.gov). 
Click on Supporting Documentation under Round 2 Designation under Final 
Rules. This will bring you to the link to the technical support 
document.
    Several of the commenters expressed appreciation for USDA's effort 
in designating items for preferred procurement. While these comments 
are not presented within this preamble, USDA thanks the commenters for 
such comments.
    Following the comments and responses, USDA discusses the amendments 
being made to various sections of 7 CFR part 2902 regarding reference 
to the Web site and the provision of additional information on products 
that may overlap with products designated for preferred procurement 
under EPA's CPG program.

General Comments

Reporting of Biobased Purchases
    Comment: One commenter suggested that USDA consider the method that 
is least burdensome to Federal agencies when the agencies are required, 
per Executive Order 13101, to estimate their purchases of products 
placed on the USDA Biobased Products List and report on their estimated 
purchases of such products to the Secretary of Agriculture.
    Response: Under FSRIA, the Office of Federal Procurement Policy 
(OFPP) reports to Congress biennially about Federal agency progress in 
implementing the section 9002 purchasing requirements. Under E.O. 
13423, the Federal Environmental Executive reports to the President 
biennially about Federal agency progress in implementing the purchasing 
requirements of the E.O., including the purchase of biobased products. 
OFPP and the Office of the Federal Environmental Executive (OFEE) 
jointly send a data questionnaire to the agencies to gather information 
for these reports. As a member of the inter-agency Reporting Workgroup 
that makes recommendations to OFPP and OFEE about reporting mechanisms, 
USDA will work with the other members to recommend the least burdensome 
mechanisms for tracking and reporting on purchases of the designated 
biobased items.
Warranties
    Comment: Two commenters expressed concern about a biobased 
product's effects on warranties. One commenter stated that USDA should 
consider creating a fact sheet about warranty myths and realities, 
including the type of questions buyers should ask Original Equipment 
Manufacturers (OEMs) and contractors to make sure that the warranty 
issue is real and not just an excuse to avoid purchasing a biobased 
product.
    The second commenter recommended that USDA fully address the effect 
of biobased product usage on equipment warranties (i.e., such use as 
might void equipment warranties) prior to final item designation.
    Response: USDA shares the commenters' concerns about the potential 
effect of biobased products on warranties. As noted in the response to 
a similar comment on the first designated item rule (see 71 FR 13702), 
USDA is working with manufacturers on the issue of maintenance 
warranties as time and resources allow. USDA is contacting 
manufacturers, industry associations, and service professionals to 
request information about warranty issues. About 200 different contacts 
have been made, but the results have been inconclusive. Many of the 
contacts have been reluctant to discuss warranty issues related to 
either their products or to biobased components. Additional information 
on the results of USDA's information gathering efforts are available on 
the BioPreferred Web site.
    At this time, USDA does not have sufficient information to 
determine whether or not the manufacturers of biobased products will 
state that the use of these products will void maintenance warranties. 
This does not mean that the use of such products will void warranties, 
only that USDA does not currently have such information. As additional 
information becomes available on warranties, USDA will make such 
information available on the BioPreferred Web site.
    Because it is difficult for USDA to fully address the warranty 
concern for each product within each item designated for preferred 
procurement, USDA continues to encourage manufacturers of biobased 
products to test their products against all relevant standards, 
including those that would affect warranties, and to work with OEMs to 
ensure that the biobased products will not void maintenance warranties 
when used. Whenever manufacturers of biobased products find that 
existing performance standards for maintenance warranties are not 
relevant or appropriate for biobased products, USDA is willing to 
assist them in working with the appropriate OEMs to develop tests that 
are relevant and appropriate for the end uses in which biobased 
products are intended. If, in spite of these efforts, there is 
insufficient information regarding the performance of a biobased 
product and its effect on equipment maintenance warranties, USDA notes 
that the procurement agent would not be required to buy such a product.
Industry and Agency Meeting/Forum
    Comment: One commenter suggested that USDA consider sponsoring an 
industry and government forum or meeting to discuss program 
implementation issues. Topics identified by the commenter included how 
best to identify and communicate performance standard information and 
warranty issues associated with biobased products and original 
equipment manufacturers.
    Response: USDA agrees with the commenter that a forum-type meeting 
to address implementation issues, including those identified by the 
commenter, has merit and will consider hosting such a forum as time and 
resources allow.
Supporting Documentation--Performance Standards
    Comment: Two commenters stated that the background information for 
the proposed designated items did not distinguish between test methods 
and performance standards. One commenter stated that the entry in the 
column ``Standard Title'' under Performance Standards (as found in the 
Supporting Documentation on the BioPreferred Web site) does not appear 
to have much to do with performance. The commenter pointed, as an 
example, to the OSHA Hazard Communication Standard as not providing 
information as to whether the biobased adhesive or grease remover will 
work as intended. The second commenter stated that most of the 
``performance standards'' listed by USDA are not really performance 
standards but are rather ``test methods.'' This commenter noted that 
while some test methods listed are relevant to meeting performance 
standards for some applications, others are not. The second commenter 
recommended that test methods be differentiated from performance 
standards.

[[Page 27933]]

    The second commenter also stated that end users are well aware of 
these performance standards because the operating manuals for their 
equipment will list the standards and that end-users will want to know 
from a manufacturer if its product meets that performance standard. For 
products that do not have recognized performance standards, such as 
glass cleaners, the commenter stated that users may have to try a 
sample to determine if the product meets their needs. The commenter 
also stated that in other cases, such as carpets or insulation, 
specifications for purchase will be set by designers, architects, and/
or engineers based on a specific project's needs, and manufacturers 
would have to show the buyers that they can meet the specification. For 
these reasons, the commenter recommended that, rather than providing a 
list of test methods, USDA should offer manufacturers the opportunity 
to provide as much performance data as possible on the BioPreferred Web 
site when they list their products. By doing so, the commenter 
continued, information will be provided to potential buyers and users 
so that they can compare the performance data with the particular 
performance requirements they need for the product.
    Response: USDA agrees with the commenters that many of the 
standards listed under ``Standard Title'' in the background information 
are test methods and not performance standards. USDA further agrees 
that such distinctions should be made in the background document. USDA 
believes that it is necessary to continue to report both test methods 
and performance standards because it is very important that consistent 
test methods are used when measuring the performance of a product. USDA 
will, therefore, update the background information on the BioPreferred 
Web site to reflect the distinction between test methods and 
performance standards. Further, as additional information on 
performance standards is obtained, USDA will update the BioPreferred 
Web site to include such information. The results of the effort to 
distinguish between test methods and performance standards for the 
designated items in this final rule can be found in Chapter 1.0 of the 
document ``Technical Support for Final Rule--Round 2 Designated 
Items,'' which is available on the BioPreferred Web site.
    USDA also agrees that manufacturers need to provide as much 
information as possible on the performance of their products, 
especially as measured against recognized performance standards. USDA 
is working with manufacturers to make this information available by 
posting on the BioPreferred Web site links to the manufacturer's Web 
site for additional information on biobased product performance.
Reduced Greenhouse Gases
    Comment: Three commenters recommended that USDA continue to 
emphasize the potential of biobased products to reduce greenhouse gas 
emissions as part of the preferred procurement program.
    Response: USDA agrees with the commenters that the potential for 
biobased products to reduce greenhouse gas emissions is an important 
attribute of which purchasers and others need to be aware. USDA will 
continue to identify this potential in preambles and in the background 
information on the BioPreferred Web site. USDA welcomes the commenters, 
and others, to provide USDA with ``cradle-to-grave'' studies that 
demonstrate this potential attribute. USDA would then consider putting 
such results on the BioPreferred Web site.
Biobased Materials--Prequalify
    Comment: Three commenters recommended that USDA develop a program 
for prequalifying the biobased material that will form the basis of 
biobased products. The commenters point out that biobased products are 
made from biobased materials. According to the commenters, testing and 
qualifying biobased materials will greatly accelerate the designation 
process for preferred procurement--if a product is made from a 
prequalifed biobased material, it is then a simple matter for the 
manufacturer of the bioproduct to provide information to USDA on its 
biobased composition and, if verification of manufacturer supplied 
compositional information is needed, the ASTM biobased content test can 
always be conducted as needed.
    The commenters also suggested making prequalified biobased 
materials part of the ``U.S.D.A. Certified'' labeling program. When 
part of the labeling program, manufacturers would be able, according to 
the commenter, to contact biomaterial suppliers for information on the 
performance and other characteristics to determine the most appropriate 
biomaterials for their particular application. According to the 
commenters, this would expedite the development of biobased products 
consistent with the Congressional intent of FSRIA.
    Response: USDA agrees that there is merit in the concept of 
prequalifying biobased materials that are used to manufacture biobased 
products for preferred procurement. However, as noted in a response to 
public comments on the first six items designated for preferred 
procurement (71 FR 13702), section 9002 of FSRIA requires USDA to 
designated ``products'' for preferred procurement. Section 9001 of 
FSRIA defines ``biobased products'' as ``a product determined by the 
Secretary to be a commercial or industrial product (other than food or 
feed) that is composed, in whole or in significant part, of biological 
products or renewable domestic agricultural materials * * * or forestry 
materials.'' Based on this definition, USDA does not believe it has the 
authority to consider ``biobased material used in the manufacture of 
biobased products'' to be ``products.'' USDA is, however, gathering 
information on biobased intermediate feedstocks and developing a list 
of these materials. USDA will provide this information on the 
BioPreferred Web site. USDA also notes that NIST currently includes 
soybeans, corn, wheat, rice, cotton, canola, potatoes, and wool as 
feedstocks when conducting the BEES life cycle analysis for biobased 
products.
    USDA has considered the commenter's recommendation to make 
prequalified biobased materials part of the ``U.S.D.A. Certified'' 
labeling program in developing the proposed rule for that program.
Recycled vs. Biobased Products
    Comment: Three commenters agreed with USDA that additional 
information should be sought first from manufacturers prior to 
procurement decisions where recycled content and biobased materials 
products are both being considered for the same application. Two of the 
commenters went on to recommend that USDA's Preferential Procurement 
Guidelines for Biobased Products be upgraded to include the proposal in 
this rulemaking for handling the ``overlap'' between the recycled 
content and biobased content programs.
    Response: While USDA appreciates the commenters' suggestion on 
revising the Guidelines to reflect the overlap potential between 
biobased products and products with recycled content, USDA will 
continue to discuss such overlap within each of the designated item 
rulemakings on an item-by-item basis.
Mature Markets
    Comment: Three commenters urged USDA to not exclude natural fiber 
and other biobased products with mature markets in 1972. The commenters 
felt

[[Page 27934]]

that by doing so petroleum plastic blends (such as in leaf collection 
bags) would get an unfair advantage over entirely natural fiber 
biobased products (e.g., a Kraft paper leaf collection bag made from 
100 percent plant matter).
    Response: USDA extensively addressed the issue of mature markets in 
the final rule for the Guidelines for Designating Biobased Products for 
Federal Procurement (70 FR 1792). In that notice, USDA explained the 
rationale for excluding products that had mature markets in 1972 from 
the preferred procurement program--``The intent of section 9002, as 
described in the conference report accompanying FSRIA, is to stimulate 
the production of new biobased products and to energize emerging 
markets for those products. Given that, USDA finds that it is entirely 
appropriate for the guidelines to exclude products having mature 
markets from the program.'' (see 70 FR 1802). This was finalized in 
paragraph 2902.5(c)(2). USDA reiterated its position in the final rule 
for the first six items designated for preferred procurement and 
explained further on its reasons for excluding mature market products 
(see 71 FR 13701).
    For the reasons stated in these two FR notices, the USDA will 
continue to exclude mature market products as they are identified 
within items designated for preferred procurement.
    In addition, in its response to comments on the first six items 
proposed for designation for preferred procurement, USDA stated: ``As 
USDA designates additional items for preferred procurement, USDA will 
make determinations of whether mature markets existed in 1972 and, if 
so, identify those materials that do not qualify as biobased material. 
Unless a material is specifically identified as a material not 
qualifying as a biobased feedstock, such as cotton fiber has been for 
bedding, bed linens, and towels, the material may be used in any 
designated item and will be considered a qualifying biobased 
feedstock.'' (see 71 FR 13702). None of the 20 items proposed for 
preferred procurement in the two proposed rules were identified as 
having mature markets for which preferred procurement would not be 
given. Therefore, the specific example of Kraft paper leaf collection 
bags made from 100 percent plant matter provided by the commenters 
would qualify for preferred procurement under this program.
Sustainability Guidelines for Biopolymers
    Comment: One commenter noted that biobased products are not 
automatically better for the environment than the items they replace, 
depending upon the way the feedstock is grown, how the product is 
manufactured, and how the product is handled at the end of its life.
    The commenter further noted that a group of non-government 
organizations are working with companies interested in manufacturing 
and using biobased products to develop sustainability guidelines for 
biopolymers and urged the federal government to engage in this process 
and consider how it can in future rulemakings encourage the biopolymer 
industry to move toward truly sustainable products.
    Response: USDA agrees with the commenter that biobased products are 
not necessarily better for the environment than the items that they 
replace. This emphasizes the need for life-cycle analyses (LCAs), which 
is the type of information generated under the BEES analysis. USDA 
welcomes additional information on biobased products, including aspects 
concerning sustainability, and urges the commenter and the non-
governmental organizations to provide the results of their 
sustainability guidelines to USDA and other Federal agencies. USDA will 
then consider posting validated information on the BioPreferred Web 
site as additional information available to Federal purchasing 
agencies.
Life-Cycle Analysis (LCA)
    Comment: One commenter commended USDA for considering LCAs and the 
use of the BEES as a tool for LCA and urged USDA to be cautious in its 
endorsement of Green Seal, stating that some Green Seal standards are 
several years old and were not developed using a true consensus based 
approach.
    Response: USDA appreciates the commenter's recognition of the use 
of BEES as a tool for LCA. With regard to Green Seal standards, it is 
USDA's intent to provide information on all standards that are being 
used for products within items being proposed for designation. The 
identification of such standards, however, does not represent an 
endorsement on the part of USDA of any standard, including any Green 
Seal standard. Because the programs provide information that many 
prospective purchasers of biobased products may find useful, however, 
USDA will continue to identify and post information concerning these 
programs on the BioPreferred Web site.
    For the designated items in this final rule, USDA identified two 
relevant Green Seal standards. These are GS-34, Cleaning/Degreasing 
Agents, and GS-41, Hand Cleaners and Hand Soaps Used for Industrial and 
Institutional Cleaners. These two GS standards are relevant, 
respectively, to graffiti and grease removers and to hand cleaners and 
sanitizers. These standards can be accessed through the Green Seal Web 
site at http://www.greenseal.org/certification/standards.cfm
Leadership in Energy and Environmental Design (LEED)
    Comment: One commenter requested that USDA remove references to the 
LEED green building rating system in the final rule because, according 
to the commenter, (1) the LEED system was not developed using an LCA, 
(2) the organization that developed it (US Green Building Council) 
recognizes that the rapidly renewable credit is flawed and is not 
supportable, based on an LCA, and (3) there are other green building 
rating systems (such as Green Globes, which is being examined by 
several U.S. Federal agencies) that already incorporate aspects of 
life-cycle assessment. However, if USDA retains the reference, the 
commenter recommended that USDA indicate the lack of an LCA approach in 
LEED, and that USGBC has proposed to its membership that the rapidly 
renewable credit be removed.
    The commenter further suggested that USDA discuss and incorporate 
Green Globes into the rule, based on the fact that it already 
incorporates aspects of LCA.
    Response: USDA appreciates the information provided by the 
commenter on the LEED. USDA's identification of the LEED rating system 
does not represent an endorsement of LEED, but simply acknowledges its 
existence and use. USDA will consider further clarification of LEED if 
and when it is referenced in future rulemakings for the BioPreferred 
Program, as well as considering mentioning Green Globes, where 
appropriate.
Exemptions
    Comment: One commenter requested that the rule reflect exemptions 
for all items used in products and systems designed or procured for 
combat or combat-related missions and that this exemption be extended 
to all services and products contracted for combat or combat-related 
missions. The commenter pointed out that USDA has stated that it is 
inappropriate to apply the preferred procurement requirement unless the 
DoD has documented that such products can meet the performance 
requirements for such equipment and are available in sufficient supply 
to meet domestic and overseas deployment

[[Page 27935]]

needs. According to the commenter, their experiences to date have 
reinforced that it is not practical at this time to conduct the testing 
and evaluation necessary for such performance documentation for all 
products used in combat.
    Response: USDA has discussed, at length, with DoD the need for 
exempting from preferred procurement items whose products are used in 
combat or combat-related situations. USDA has also had similar 
discussions with NASA regarding products used in space and critical 
mission areas. These discussions have included whether there is a need 
for exemptions and, if so, whether exemptions should be on an item-by-
item basis or whether a ``blanket'' exemption should be implemented for 
these two agencies. As a result of these discussions, USDA is exempting 
from preferred procurement all items used in products or systems 
designed or procured for combat or combat-related missions and for 
spacecraft systems and launch support equipment. The exemption is 
stated in the Guidelines (subpart A) rather than under each item 
designation. USDA believes it is inappropriate to apply the biobased 
purchasing requirement to DoD tactical equipment and NASA mission-
critical equipment at this time. However, USDA reserves the right to 
withdraw such exemptions, on an item-by-item basis, as biobased 
products are demonstrated to meet all of the performance requirements 
of these applications.
    Comment: One commenter stated that the proposed exemptions for 
critical applications are unnecessary given the provisions of the 
Guidelines, noting that no product, biobased or not, should be used in 
any critical application if it does not meet performance requirements. 
The commenter is concerned that proposing an exemption that limits the 
use of biobased products to ``more conventional applications'' implies 
that biobased products are inferior in their performance 
characteristics to the incumbent product. According to the commenter, 
not only is this not the case, but it sends the wrong message regarding 
the potential benefits of and uses for biobased products.
    Response: USDA agrees with the commenter that providing exemptions 
could imply that biobased products are inferior to non-biobased 
products. USDA can only emphasize that these exemptions are not 
intended to convey such meaning. USDA points out, however, that the 
statute does allow agencies the ability to not purchase a biobased 
product if it does not meet applicable performance standards. Because 
so many biobased products are in their infancy, more effort is required 
on the part of their manufacturers to demonstrate that the biobased 
products perform as well as their non-biobased counterparts, whether in 
conventional or non-conventional applications.
    USDA also agrees that all Federal agencies have the same ``off 
ramps'' available to them in determining whether or not to purchase 
biobased products within a designated item. USDA has received repeated 
requests from both DoD and NASA for exemptions. DoD is particularly 
concerned about the use of biobased products in combat or combat-
related situations and NASA about the use of any biobased product in 
critical mission areas. USDA has reached agreement with these agencies 
to provide ``blanket'' exemptions for both NASA and DoD. Providing this 
blanket exemption will allow these agencies the flexibility to choose 
how they utilize their resources in evaluating various biobased 
products and determining which products meet their critical 
requirements.
    USDA recognizes that such blanket exemptions could discourage 
manufacturers from developing biobased products for these two 
``markets.'' However, if manufacturers of biobased products can 
demonstrate to the satisfaction of these two agencies that biobased 
products can meet all of their concerns, USDA would reconsider such 
exemptions on an item-by-item basis.
Item Designations
    Comment: Two commenters requested that USDA not designate items for 
preferred procurement where the products within the item contain 
nanoparticles because of the many outstanding public and environmental 
health issues surrounding the use of nanotechnology. According to the 
commenters, there are no manufacturing standards, labeling regulations, 
or safety guidelines for nanoparticle use and the effect of 
nanoparticles on health and the environment are not yet understood.
    Response: At this time, the statute for designating biobased 
products for preferred procurement does not address the issue of 
products made with nanoparticles. Congress would need to change the 
statute in order for USDA to consider it within the BioPreferred 
program. Therefore, USDA does not address the issue in this rulemaking.
    USDA points out that EPA is conducting several major activities 
with respect to nanotechnology including, but not limited to, 
initiating the development of a voluntary pilot program for the 
evaluation of nanomaterials and reviewing nanomaterial new chemical 
submissions in the Office of Pollution Prevention and Toxics. For 
additional information on the work EPA is pursuing with regard to 
nanomaterials, access the Web site http://www.epa.gov/oppt/nano/.
Environmental and Health information
    Comment: One commenter stated that providing agencies with tables 
summarizing BEES analyses does not satisfy the statutory requirement 
that USDA provide agencies with information on the public health and 
environmental benefits of biobased products. According to the 
commenter, the summary tables included in the preamble to the proposed 
products designation rule do not provide useful information to 
agencies, because the information is not provided in the context of 
comparisons with non-biobased products. The commenter, therefore, 
recommended that USDA provide narrative information and comparative 
reference points on the environmental and public health benefits of the 
designated products by placing this information in the technical 
background documents or in case studies on the BioPreferred Web site. 
The commenter then provided examples of information that could help 
agencies make a ``best value'' determination.
    Another commenter provided a list of some of the benefits 
associated with using soy in industrial products.
    Response: The BEES analysis provides a factual review of 
environmental and health effects of products. The results of the BEES 
analysis allow the comparison of similar products that have undergone 
the analysis. For example, one can compare the relative environmental 
and health effects between two biobased disposable containers. In 
addition, the BEES analysis provides information on the carbon cycle, 
which is being acknowledged as an increasingly important environmental 
effect. Thus, the BEES analysis provides important and relevant 
information on the environmental and health effects of biobased 
products.
    USDA agrees with the commenter that providing additional 
information on manufacturers' claims regarding the public health and 
environmental effects of their biobased products on the BioPreferred 
Web site is useful, and has begun posting such information. As more 
information on the public health and environmental effects of biobased 
products is obtained, USDA will continue to post such information. If 
the

[[Page 27936]]

information is anecdotal, it will be so indicated.
    USDA also agrees that quantitative, science-based, comparative 
reference points on the environmental and public health benefits of the 
designated products would be useful. USDA, therefore, encourages 
procurement officials to request this information from manufacturers of 
biobased products and from manufactures of nonbiobased products to 
facilitate the comparison of products. Until then, BEES results for 
both biobased and traditional products, covering a handful of proposed 
and designated items, are available through the free BEES 4.0 tool 
published by NIST in May 2007 (http://www.bfrl.nist.gov/oae/bees.html).
    USDA thanks the other commenter for its information on using soy in 
industrial products and will post such information, as appropriate, on 
the BioPreferred Web site.
Purchasing Analysis
    Comment: One commenter stated that biobased products should be 
fully tested to determine if they meet performance specifications 
before requiring Federal agency purchase. According to the commenter, 
there are many products in the marketplace that do not work as 
advertised. Because there are numerous industry and other recognized 
standard-setting groups that are responsible for setting standards for 
products used in various applications, the commenter felt that it would 
be prudent for Federal agencies to purchase biobased products that have 
been determined by an outside organization to meet minimal performance 
standards.
    Two commenters stated that USDA needs to make available information 
on the availability, economic and technical feasibility, environmental 
and public health benefits, and life-cycle costs for each of the 
designated items and the name of each of the product's manufacturer in 
order to enable Federal agencies to determine whether they are buying a 
product that will perform as intended at a reasonable cost and to 
prevent an incorrect assessment of a product's attributes, which may 
led to unintended consequences.
    One of the commenters recognized that to provide complete 
information is a challenge given that a biobased product market is 
still in its infancy. However, the commenter believes that it is ill-
advised to proceed with designating products for which ``information on 
the availability, relative price, performance, and environmental and 
public health benefits of individual products within each of these 10 
items is not presented'' (71 FR 47568).
    Response: In designating items for preferred procurement, USDA is 
responsible for designating those items which are or can be produced 
with biobased products and to provide, in part, information on their 
performance. Further, USDA is responsible for considering the 
technological feasibility of using products within such items. Finally, 
the statute allows a Federal agency not to purchase a product if, in 
part, it fails to meet the reasonable performance standards of the 
procuring agency. USDA believes that its process for designating items 
meets the intent and requirements of the authorizing statute and 
results in items that generally meet performance standards applicable 
to products within those items.
    USDA does not believe it is reasonable, nor statutorily required, 
to conduct full testing of every product within every item (or even the 
full testing of a single product within every item) in order to list an 
item for preferred procurement. To grant the commenter's request that 
biobased products be fully tested would result in an essentially 
insurmountable obstacle to implementing the program. USDA has improved 
the process for making available information on products within items 
proposed and promulgated for designation. USDA is continually working 
to upgrade the amount and quality of such information, which can be 
found on the BioPreferred Web site.
    As stated in the final Federal Register notice for the first set of 
designated items, USDA reached an agreement with manufacturers not to 
publish their names in the Federal Register when designating items. 
This agreement was reached to encourage manufacturers to submit 
products for testing to support the designation of an item. Once an 
item has been designated, the manufacturers of products within the 
designated item may elect to post their names and other contact 
information on the BioPreferred Web site.
    USDA has linked the BioPreferred Web site to Defense 
Standardization Program and GSA-related standards lists used as 
guidance when procuring products, which can be accessed through the 
``Selling to the Federal Government'' link on the BioPreferred Web 
site. To access the DoD list, go to the BioPreferred Web site and click 
on the ``Selling to Federal Government'' tab and look for the DoD 
Specifications link. To access the GSA-related standards list, click on 
the GSA Schedule Suppliers link under ``Selling to the Federal 
Government.'' Once at the GSA Web site, search for ``Global Supply 
Standards'' and then follow the appropriate links. Instructions on 
accessing these lists from the BioPreferred Web site will also be 
included in all future Federal Register notices for USDA's designated 
item rules. Further, USDA also will invite and actively encourage 
manufacturers of qualifying products within a designated item to post, 
on USDA's password-protected Web site, performance standards by which a 
qualifying product's performance has been evaluated.
Minimum Biobased Content
    Four commenters felt that USDA was proposing minimum biobased 
contents that were too low for many of the products. These, and other, 
commenters also provided specific comments on the proposed minimum 
biobased contents for specific items. Those specific comments are 
addressed later in the preamble under Item Specific Comments. Here, 
USDA is responding to the comments that more generally address the 
procedure USDA uses in proposing minimum biobased contents.
Approach Used
    Comment: Several commenters were concerned about the approach USDA 
used to determine minimum biobased contents. One commenter recommended 
that, rather than setting the threshold level below the lowest 
percentage observed in the lowest end product in the survey, USDA 
reward the top half or top two thirds of the respondents, at least 
where the spread is more than 20 percentage points. Two other 
commenters recommended that USDA consider a minimum threshold of 50 
percent biobased content given that products with biobased contents 
above 50 percent are available in all categories.
    Response: In response to these public comments and ongoing 
discussions with other Federal agencies, and because several additional 
biobased content test results were obtained after proposal, USDA re-
evaluated the proposed minimum biobased contents for each of the 
proposed items. In re-evaluating the minimum biobased contents, USDA 
considered factors including the number of, and the distribution of, 
the test data points as well as the product manufacturer's claims 
related to performance, biodegradability, and range of applicability.
    In those cases where all of the products' biobased contents were 
within a narrow range and no data were available to distinguish 
significant performance differences among the products, USDA set the 
minimum biobased content at the level that would allow preferred 
procurement for all of

[[Page 27937]]

the products for which data were available.
    For items where the products' biobased contents showed a wider 
range and included one or more significant breaks in the range, USDA 
reviewed the product information to determine if there were performance 
or applicability differences among the products that could be used for 
creating subcategories based on the groups of products that have 
similar biobased contents. For example, if the biobased contents of 
half of the products within an item were in the 30 to 50 percent range 
and the other half were in the 80 to 95 percent range, USDA considered 
whether the product information supported the creation of two 
subcategories. Information that was considered to be supportive of 
subcategorization were claims of product features such as ``special 
applications,'' ``high temperature applications,'' or ``single-use 
versus multiple-use.'' In those cases where the biobased content and 
other product information supported subcategorization, USDA has created 
subcategories in this final rule.
    In other cases, USDA has considered subcategorization for an item 
based upon initial performance information, but USDA does not currently 
have sufficient data to justify creating subcategories. Where that is 
the case, USDA has generally set the minimum biobased content based on 
the group of products with the higher biobased contents. For these 
items, USDA will continue to gather data on products within the item 
and will create subcategories in a future rulemaking if sufficient data 
are obtained.
    For some items, there was a significant range in the reported 
biobased contents but the data points were evenly spread over the 
entire range. In those cases, if there were no data to distinguish the 
features of any grouping or subset of the products, USDA has generally 
set the minimum biobased content based on the product with the lowest 
biobased content in order to allow procuring agencies the widest 
selection of products from which to select those that best meet their 
needs. As additional product performance information becomes available 
and as additional products within these items become available with 
higher biobased contents, USDA will consider increasing the minimum 
biobased content or creating subcategories where performance 
characteristics or application use justify subcategorizing.
    As a result of the re-evaluation, many of the proposed minimum 
biobased contents have been revised for the final rule. These revisions 
will be presented and discussed in the item specific sections later in 
this preamble. For two items, USDA reviewed the biobased content data 
but did not find sufficient justification through specific public 
comments, performance information, or additional biobased content data 
points for revising the proposed minimum biobased content level. For 
the adhesive and mastic removers item, 12 biobased content test results 
were available (44, 61, 73, 79, 81, 83, 83, 84, 85, 89, 89, 95, and 
99). There was a significant break in the data points between the 
product with 44 percent biobased content and the product with the next 
higher value of 61 percent. USDA could find no justification, based on 
the products' performance information, to either subcategorize this 
item or to set the minimum biobased content at a level based on the 44 
percent biobased content product. Information available for the 
remaining 11 products did not support the creation of subcategories or 
provide any rationale for setting the minimum biobased content at any 
specific point with the range. Also, the proposed minimum biobased 
content for this item was 58 percent and no public comments or 
additional data were received to support changing the proposed level. 
As a result, the proposed minimum biobased content of 58 percent was 
retained for the final rule.
    For the fertilizers item, the proposed minimum biobased content was 
71 percent. There is a significant break in the tested biobased content 
levels, with three products at or below 26 percent and 10 products at 
or above 74 percent. USDA has retained the proposed 71 percent minimum 
biobased content for the final rule because no justification was found 
to subcategorize the item, no public comments or additional data were 
received, and USDA knows of no unique performance claims that are 
offered by the three products with biobased contents below this level.
    USDA also notes that as additional biobased content data become 
available for designated items, the minimum biobased content will be 
re-evaluated periodically and revised as appropriate, based on all 
available data.
    One commenter is concerned, in part, about proposing a minimum 
biobased content at a level lower than the lowest tested biobased 
content. This does occur, but it occurs because of the test method used 
to determine a product's biobased content. The test method has a 
``margin of error'' associated with it. This margin of error is a plus 
or minus three percentage points. For example, if Product A has a 
tested biobased content of 75 percent, its actually biobased content 
could be from 72 to 78 percent. Thus, it is statistically appropriate 
to reduce the tested biobased content 3 percentage points in order to 
ensure that the product on which the item's minimum biobased content 
was based still be qualified if re-tested.
    Comment: Two commenters stated that, if the lower biobased content 
products cannot prove they offer better performance properties or meet 
certain application requirements, USDA should recommend higher biobased 
content products to stimulate product innovations that contain higher 
biobased levels. The commenters then stated that this holds 
particularly true for: Hand cleaners and sanitizers, composite panels, 
graffiti and grease removers, metalworking fluids, glass cleaners, food 
grade greases, and biodegradable cutlery. Given the lack of information 
on exceptional performance properties of the lower biobased content 
products in these categories, the commenters recommended establishing a 
minimum biobased content at 50 percent for these products.
    Response: As discussed in the previous response, USDA has re-
evaluated the proposed minimum biobased contents for all of the 
proposed items and has revised the minimum biobased contents for 
several items. In its re-evaluation, USDA considered product 
performance information to justify the inclusion of products at lower 
levels of biobased content in addition to considering the range, 
groupings, and breaks in the biobased content test data array.
    With regard to the items specifically identified by the commenter, 
USDA has created subcategories for three of the items (hand cleaners 
and sanitizers, composite panels, and metalworking fluids \4\), which 
has resulted in establishing higher biobased contents for some of the 
newly created subcategories. In addition, based on the re-evaluation of 
the data, the minimum biobased contents were also raised for graffiti 
and grease removers in this final rulemaking and for the disposable 
cutlery and glass cleaners items in the Round 3 final rulemaking. USDA 
does not believe, however, that setting the minimum biobased contents 
for items at a predetermined level (such as 50 percent) is appropriate 
without consideration of performance and applicability, as well as 
other factors, on an item-by-item basis. Please see the Item Specific 
Comments section of the preamble for discussion on all of these

[[Page 27938]]

items and their minimum biobased content.
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Effect of Lower vs. Higher Biobased Contents

    Comment: Several commenters expressed concern about the effect of 
``lower rather than higher'' biobased contents. Two commenters believe 
that setting the biobased content too low for many of the 20 designated 
items in Rounds 2 and 3 will undermine motivation to produce products 
with higher levels of biobased content. Similarly, a third commenter 
stated that it believes higher biobased contents would encourage 
development by the private sector of higher biobased content products, 
which in turn would have a multiplier effect on biobased input use even 
larger than the government purchases themselves.
    Response: For the reasons stated in response to other comments in 
this FR notice, USDA believes the procedure it uses meets the goals of 
the statute and opens the door for more biobased products to be 
purchased by Federal agencies. In response to comments, USDA re-
evaluated the proposed minimum biobased content for all items in this 
regulation. This re-evaluation resulted in a revised minimum biobased 
content for several items based upon product performance information 
and the range, groupings, and breaks of biobased content data.
    Designating biobased products for preferred procurement will 
increase the demand for such products and will encourage more 
manufacturers to develop biobased products. As items are designated for 
preferred procurement, it is then the Federal agencies' responsibility 
to purchase those biobased products with the highest biobased contents 
that meet their performance specifications. Therefore, to sell more of 
their biobased products under the preferred procurement program, 
manufacturers will be motivated to develop products with higher 
biobased contents than their competitors.
    USDA agrees that setting higher minimum biobased content 
requirements would provide a higher target for manufacturers and may 
result in manufacturers developing higher biobased content products. 
However, USDA believes that to do so without regard to the current 
status of development of biobased products would delay the purchase of 
many biobased products. USDA believes its responsibility is to 
implement a preferred procurement program on the basis of products 
currently available in the marketplace and then to depend upon the 
statutory requirement for purchasing agencies to buy those qualifying 
products with the highest biobased contents available that meet their 
performance requirements at a reasonable cost. In setting the minimum 
biobased content, USDA also seeks to avoid situations where the minimum 
biobased content is set at such a high level that it can currently be 
met by only one manufacturer's product(s), thus creating a ``single 
provider'' situation which would delay implementation of the program 
for these products.
    USDA believes the approach it is taking in setting minimum biobased 
contents is appropriate. In instances where performance requirements 
vary significantly for products within an item and where sufficient 
data are available, USDA has created subcategories with different 
minimum biobased content requirements within a single designated item. 
Discussions of these changes are included in the section of this 
preamble that presents comments and response related to specific 
designated items.
Meeting the Goals of the Statute
    Comment: Two commenters stated that the goals of the preferred 
procurement program (increasing demand for biobased products; spurring 
rural economic development through value-added agricultural products; 
and enhancing the nation's energy security by substituting biobased 
products for products derived from imported oil and natural gas) would 
be better met by substantially increasing the minimum biobased content 
level for many of the 20 items proposed for designation in the two 
Federal Register notices. A third commenter referred to section 9002(e) 
of FSRIA as the basis for USDA setting minimum biobased contents at the 
highest level practicable.
    Response: USDA believes there are various ways to achieve the goals 
of the BioPreferred Program, including the commenters' suggestion of 
``substantially increasing the minimum biobased content level'' for 
many of the items. Because many biobased products are in their infancy, 
however, USDA believes that the best way to make inroads in their 
purchase by Federal agencies and to increase market interest in the 
production of biobased products, including those manufacturers who may 
otherwise not be interested, is to set minimum biobased contents that 
reflect the array of biobased content data and product performance 
characteristics to meet the needs of the Federal procurement community. 
For this final rule, USDA re-evaluated each of the item's minimum 
biobased contents considering the biobased content data and performance 
characteristics and subcategorized and revised several items' minimum 
biobased contents, as appropriate. The minimum biobased contents 
established by this rule allow the purchasing agencies to select 
biobased products with higher biobased contents in conformance with 
paragraph (c) of section 9002, which states that procuring agencies 
shall ``give preference to such items composed of the highest 
percentage of biobased products practicable * * *.'' that meet the 
performance, price, and availability requirements of the statute. USDA 
will continue to provide information on the full range of biobased 
contents found among products within designated items, which will 
assist procuring agencies in purchasing those products that have the 
highest biobased content.
Information
    Comment: Two commenters suggested that USDA make available more 
information on the biobased content for each product tested, rather 
than providing a range of biobased contents. The commenters stated, as 
an example, if the biobased content of ten of the 30 biobased 
fertilizers ranged from 74 to 100 percent and if nine of these tested 
at 100 percent, USDA should consider setting the minimum content close 
to 100 percent rather then near the lowest biobased content tested 
product.
    Response: USDA posts on the BioPreferred Web site all of the 
biobased content data received. This information can be accessed by 
going to the BioPreferred Web site (http://www.biopreferred.gov) and 
then clicking on the ``Proposed and Final Regulations'' link and then 
the supporting documentation link for the applicable round of 
designations. USDA's goal is to provide enough specific information on 
biobased contents in preambles so that reviewers will have sufficient 
data to adequately comment on a proposed minimum biobased content. If 
readers feel that they need more detailed information, they can access 
all of the data as indicated above.
Subcategorization
    Comment: One commenter stated that USDA should consider the 
precedence in EPA's recycled content products program for setting 
several content levels based on different applications and apply that 
principle to some of the items being proposed for designation for which 
USDA's data indicate that multiple minimum biobased contents are 
appropriate.
    Response: USDA agrees with the commenter that each designated item

[[Page 27939]]

should be examined to determine whether or not it is reasonable to 
create subcategories within an item. As discussed in the Background 
section of this preamble, USDA intends to create subcategories in those 
items where there are groups of products within the item that meet 
different markets, uses, and/or performance specifications. For some 
items, however, USDA may not have sufficient information at the time of 
proposal to create subcategories within an item. In such instances, 
USDA may either designate the item without creating subcategories 
(i.e., defer the creation of subcategories) or designate one 
subcategory and defer designation of other subcategories within the 
item until additional information is obtained on products within these 
other subcategories.
    Where USDA has sufficient information on products within an item to 
justify creating subcategories, USDA will do so. With regard to the 20 
items proposed for designation under Rounds 2 and 3, USDA has re-
evaluated individual items when requested by the commenters and has 
created subcategories for six items (hand cleaners and sanitizers; 
composite panels; fluid-filled transformers; metalworking fluids; \5\ 
greases; and carpet and upholstery cleaners).
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Overlap With EPA's Comprehensive Procurement Guideline (CPG)
    Comment: One commenter, in considering the potential for overlap 
between biobased products and recycled content products, noted the 
decision-making process and the information to be provided to assist in 
making the purchase decision and concluded that there may be less 
overlap between CPG items and designated biobased items than there 
appears to be at first glance.
    Response: USDA agrees with the commenter that there may be the 
appearance of an overlap in many cases where, after all of the required 
performance characteristics of the products are evaluated, an actual 
overlap does not exist. Federal agencies should evaluate the 
performance needs of the products when deciding whether there is an 
actual overlap between the preferred procurement programs.
    For the items within this rulemaking, USDA has identified products 
within insulating foam, composite panels, disposable containers, 
sorbents, and fertilizer as potentially overlapping with EPA-designated 
recovered content products. Where their products compete directly with 
EPA-designated recovered content products, the Federal agency must 
purchase the recovered content product.
    In some cases, however, there may be factors that would give 
purchase preference to the biobased product. For example, a disposable 
container may be required to be biodegradable. If the EPA-designated 
recovered content product is not biodegradable, preference would be 
given to the biobased container, subject to cost, availability, and 
performance. Similarly, a biobased sorbent may be given preference over 
an EPA-designated recycled content sorbent if the biobased content 
product addresses a Federal agency's certain environmental or health 
performance requirements that the EPA-designated recovered content 
product would not meet.
    Finally, there may be instances where products within these items 
may be able to meet both sets of procurement preferences. For example, 
almost all of the biobased sorbents are produced from waste streams of 
paper, corn processing, or fabric processing, which could be considered 
recycled. Composite panels made with embedded fibers may be made with 
recycled plastic materials. For these and other such products, there 
may be no conflict between these two programs as the product may 
satisfy both.
BEES Analytical Tool
    Comment: One commenter stated that the BEES scores may be difficult 
for many users to grasp and suggested that USDA consider additional or 
alternative approaches (e.g., graphical representation) for presenting 
the information. The commenter also suggested that users may find the 
actual impact values easier to understand than the scaled values used 
for scoring (e.g., grams of CO2 equivalents per functional 
unit of product (global warming), grams of N equivalents per functional 
unit (eutrophication), etc.). The commenter believes that some users 
may also find the actual impact values useful in compiling 
environmental impact data for reporting under OMB scorecards, GPRA 
results, EMS reports, etc. The commenter provided an example table of 
how such information could be presented.
    Response: USDA agrees with the commenter that the BEES impact 
values are useful. The BEES impact values for the designated items in 
this final rule can be found in Appendix A of the document ``Technical 
Support for Final Rule--Round 2 Designated Items,'' which is available 
on the BioPreferred Web site. USDA will provide the BEES impact values 
in all future proposed rulemakings for designated items.
    With regard to alternative presentations of the data, USDA has 
discussed with the commenter various methods of supplementing the 
tabular display with a graphical representation of BEES environmental 
performance score results. USDA will add a graphical presentation of 
these BEES results in subsequent proposed rulemakings. A graphical 
presentation of the BEES environmental performance scores for the 
designated items in this final rule can be found in Appendix B of the 
document ``Technical Support for Final Rule--Round 2 Designated 
Items,'' which is available on the BioPreferred Web site.
Compostability
    Comment: One commenter requested that USDA emphasize the 
compostability of products within item designations for biodegradable 
films, containers, and cutlery in order to better qualify with the 
Federal Trade Commission's (FTC) Guides on Environmental Labeling. The 
commenter believes that consumers may mistakenly think that 
biodegradable products should be landfilled rather than recovered and 
recycled via composting. The commenter stated that by labeling these 
items as compostable, USDA is providing direction on the proper 
disposal and recovery for disposable biobased products.
    Response: Although USDA is not requiring films or cutlery to be 
biodegradable in order to receive preferred procurement, USDA agrees 
with the commenter that biodegradable products within these (and other) 
items need to be composted rather than landfilled in order for the 
products to biodegrade. USDA points out that these products need to be 
composted in commercial composting facilities in order to be exposed to 
the proper temperature and moisture requirements for composting. 
Composting these products in a ``backyard'' compost pile will not 
necessarily result in the complete biodegradation of the product. 
Finally, all container products identified have been indicated by their 
manufacturers as meeting compostability requirements.
Terminology
    Comment: One commenter recommended that USDA clarify the use of the 
terms ``biobased,'' ``biodegradable,'' and ``compostability'' within 
the biobased preferred procurement program. According to the commenter, 
these terms are at times used interchangeably, creating a

[[Page 27940]]

confusing picture of what the program is intended to cover. The 
commenter also inquired as to why some of the items proposed for 
preferred procurement were designated as ``biodegradable'' and others 
were not.
    Response: USDA agrees that there can be confusion with regard to 
the three terms mentioned by the commenter. A ``biobased'' product is a 
product that is composed, in whole or in significant part, of 
biological products or renewable domestic agricultural materials or 
forestry materials. A biobased product may or may not be biodegradable 
and/or compostable. As noted earlier in the preamble, 
``biodegradability,'' in simple terms, measures the ability of 
microorganisms present in the disposal environment to completely 
consume the biobased carbon product within a reasonable time frame and 
in the specified environment, with composting being one such 
environment under which biodegradability occurs. ``Compostable'' 
generally means a product is capable of biological decomposition under 
controlled aerobic conditions, such as found in a compost pile or 
compost bin, by microorganisms or soil invertebrates. As noted in a 
previous response to a comment on compostability, however, some 
designated products may not fully degrade (i.e., biodegrade) in a 
``backyard'' compost pile.
    Of the twenty items proposed for designation for preferred 
procurement under Rounds 2 and 3, three items--films, containers, and 
cutlery--were designated as ``biodegradable.'' In the final rule, USDA 
has revised these item descriptions to eliminate the term 
``biodegradable'' from the item being designated and has instead made 
biodegradability, where appropriate, a requirement for a biobased 
product to receive preferred procurement. To illustrate, USDA proposed 
``biodegradable containers'' as an item for preferred procurement. This 
would have meant that only biodegradable containers currently being 
purchased would be considered for replacement by biobased biodegradable 
containers under the preferred procurement program. This is not what 
USDA intended. The item that should have been proposed was ``disposable 
containers'' so that all disposable containers would be considered for 
replacement under the preferred procurement program with biobased 
biodegradable containers.
    This same situation also existed for the other two items--
biodegradable films and biodegradable cutlery. For those two items, the 
item designation should have been for nondurable films and disposal 
cutlery, respectively. USDA has modified the item designations as 
indicated and has included a biodegradable criterion only for the 
biobased versions of containers. As explained in a separate Federal 
Register notice for Round 3 designated items, USDA is not making 
biodegradability a requirement for films or for cutlery.
    USDA notes that not all biobased containers are biodegradable or 
are not known whether or not they are biodegradable because they have 
not yet been tested for biodegradability. All of the container products 
listed on the BioPreferred Web site, however, have been verified by 
their manufacturer as being biodegradable. Further, USDA will only post 
on the BioPreferred Web site information on biobased container products 
that are biodegradable.
Biodegradability Requirements
    Comment: One commenter stated that the biodegradability 
requirements for the three items (cutlery, films, and containers) 
should be identical, and should (1) meet ASTM D6400 ``Specification for 
Compostable Plastics'', (2) meet European Norm 13432, or (3) be 
approved by the BPI. The commenter provided suggested wording.
    Response: Notwithstanding the fact that USDA is not requiring films 
to be biodegradable (as explained in a separate Federal Register notice 
for Round 3 designated items), USDA agrees with the commenter that the 
requirements for all three items should have been the same, including 
referring to ASTM D6400 for cutlery rather than ASTM D5338. Because 
ASTM D6400 may not be applicable to all biobased products to 
demonstrate biodegradability, manufacturers may claim biodegradability 
using other acceptable methods. In addition, if a product is disposed 
of in a marine environment, the applicable ASTM method is ASTM D7081.
General Comments
    Comment: One commenter requested that USDA clarify the relationship 
between biobased products and recycled content products to assist in 
the purchase decision. The commenter made the following three 
recommendations:
    1. On page 47567 of the FR notice, bottom of left column, the 
commenter recommended inserting the following sentences before the 
sentence beginning with ``Where a biobased item * * *,'': ``Section 
6002 of RCRA requires a procuring agency procuring an item designated 
by EPA generally to procure such items composed of the highest 
percentage of recovered materials content practicable. However, a 
procuring agency may decide not to procure such an item based on a 
determination that the item fails to meet the reasonable performance 
standards or specifications of the procuring agency. An item with 
recovered materials content may not meet reasonable performance 
standards or specifications, for example, if the use of the item with 
recovered materials content would jeopardize the intended end use of 
the item.''
    2. On page 47567 of the FR notice, the bottom of left column reads: 
``Where a biobased item is used for the same purposes and to meet the 
same requirements as an EPA-designated recovered content product, the 
Federal agency must purchase the recovered content product.'' The 
commenter requested that USDA clarify the type of requirements and 
whose they are. For example, the commenter suggested that the words 
``Federal agency performance'' (or something similar) could be inserted 
before ``requirements.''
    3. On page 47567 of the FR notice, at the top of middle column, the 
commenter recommended inserting ``a Federal agency's'' before 
``certain'' and inserting ``performance'' before ``requirements'' to 
ensure that the reader understands which and whose requirements USDA is 
referring to.
    Response: USDA agrees that the recommended revisions add clarity to 
the discussion of the relationship between the two preferred 
procurement programs. These suggestions have been incorporated into the 
preamble of this final rule and will be incorporated into future 
rulemaking packages.
    Comment: One commenter suggested that the first sentence in the 
preamble under ``Overlap with EPA Comprehensive Procurement Guideline 
program for recovered content products'' be changed to read ``Some of 
the products that are bio-based items designated for preferred 
procurement may also be items EPA has designated under the 
Environmental * * *.''
    Response: USDA agrees that this editorial change provides 
additional clarity to the sentence. This suggested change has been 
incorporated into the preamble of this final rule and will be 
incorporated into future rulemaking packages.
    Comment: One commenter recommended that USDA consider an item 
designation for ``engineered wood products,'' pointing out that there 
are many other biobased products in addition to composite panels.

[[Page 27941]]

    Response: USDA appreciates the comment, and understands that 
composite panels are but one of a larger category of engineered wood 
products. USDA is already considering specific engineered wood products 
for future designation for preferred products.
    Comment: One commenter recommended that USDA re-evaluate the BEES 
weighting standards because it is concerned that applying weighting 
factors to the proposed designated products consistently can lead to 
counter-intuitive conclusions and believes that, in some situations, a 
differentiation of weighting factors needs to be considered. The 
commenter was also concerned about how the BEES weighting factors were 
selected, as they seem to be the same for all products. Finally, the 
commenter is concerned about the utility of the BEES analysis results, 
which seem to be unaffected by such a broad range of unit prices (e.g., 
$17.64 and $132 for fertilizers; $89.06 and $983 for glass cleaners). 
The commenter then recommended that more information about the 
supporting analysis be disclosed before items are designated for 
procurement.
    Response: The BEES analytical tool, including its factors and their 
weightings, was developed by a scientific board and, as such, it is 
beyond USDA's ability to modify the tool. It is true that the BEES 
weighting factors are the same for all products. USDA does not agree, 
however, that differentiation of weighting factors is desirable. 
Weighting factors indicate the relative ``importance'' of the BEES 
impact categories (e.g., global warming) to the Nation, which should 
not be confused with the relative ``performance'' of specific products 
with respect to those impact categories. Product performance is 
captured by the life-cycle data underlying each product's BEES results, 
and will vary with differences in raw material feedstocks and 
cultivation practices and in life-cycle energy and water use. A single 
product's poor performance with respect to global warming, which will 
worsen its BEES global warming score, does not necessarily imply that 
global warming should be more important to the Nation as a result.
    The broad range of unit prices for some items, pointed out by the 
commenter, simply indicates that biobased alternatives for some can be 
produced using different biobased feedstocks and manufacturing 
processes, leading to different unit prices. The fact that the two 
examples noted by the commenter show a wide range in unit prices is, in 
the opinion of the USDA, exactly the type of useful information the 
BEES provides. It would be extremely difficult to disclose more 
information about the sample products without revealing specific 
manufacturers' names and proprietary information. USDA points out that 
the BEES analytical tool provides information and that it is up to the 
purchasing agency to decide how to use that information. For more 
information on the BEES analytical tool, users should access the BEES 
Web site at http://www.bfrl.nist.gov/oae/software/bees.html.
Labeling Program
    Comment: One commenter recommended that USDA either reserve the 
label for higher-content products or require manufacturers to specify 
the biobased content of the product on the label. According to the 
commenter, this will encourage the purchase of products with higher 
biobased contents, which would be consistent with Congress' intent. The 
commenter was especially concerned about composite panels.
    Response: USDA thanks the commenter for its comment. USDA has 
considered this comment in developing the proposed rule for the 
voluntary labeling program.

Item Specific Comments

Adhesive and Mastic Removers
    Comment: One commenter recommended that adhesive removers be 
grouped with graffiti and grease removers based on formulation and 
functionality. The commenter stated that products designed to remove 
asbestos, carpet and tile mastics can be formulated differently from 
products designed to remove glue, tape, gums and other adhesive 
materials. Further, products designed to remove adhesive can also be 
formulated to remove greases and tars, graffiti paints, magic permanent 
marker ink, and crayon. To reflect various formulations in the 
marketplace, the commenter suggested that the designated item could be 
graffiti, adhesive and grease removers with the following revised 
definition: Industrial solvent products formulated to remove 
automotive, industrial, or kitchen soils and oils, including grease, 
paint, and other coatings, from hard surfaces or to remove adhesive 
materials, including glue, tape, and gum, from various surface types.
    Response: USDA appreciates the commenter's suggestion. After 
reviewing the product information upon which this item was based, USDA 
believes that the products are formulated to remove a range of both 
adhesives and mastics. It is true that these, or similar, products may 
also perform the function of a grease or graffiti remover. USDA has 
already established a ``graffiti and grease removers'' item, and the 
manufacturers of products that are capable of performing multiple 
functions may market their products under either, or both, designated 
items as long as the products meet the required minimum biobased 
contents for the items. Because the products USDA evaluated as adhesive 
and mastic removers are marketed as such, USDA believes it is 
appropriate to maintain the item name as proposed. The definition was 
not changed as the result of this comment, but it has been slightly 
modified in two ways. First, the definition was changed to read 
``solvent products'' rather than ``industrial cleaning solvent 
products'' in order to reflect the broader nature of products than can 
be included in this item. Second, and as discussed in the response to 
the following comment, the word ``ceramic'' was removed from the 
definition.
    Comment: One commenter recommended that this designated item be 
revised to focus just on mastic removers (see previous comment) and 
recommended the following definition for mastic removers: Industrial 
cleaning solvent products formulated for use in removing asbestos, 
carpet, and tile mastics. The commenter also recommended that the 
qualifier ``ceramic'' tile be dropped in the definition of mastic 
remover because mastics are used to lay down tiles made of a variety of 
materials.
    Response: As noted in the previous response, USDA is retaining this 
item designation to include both adhesive and mastic removers. However, 
USDA agrees with the commenter that the word ``ceramic'' should be 
dropped from the definition as it is unnecessarily limiting. Therefore, 
USDA has removed the word ``ceramic'' from the definition.
Plastic Insulating Foam for Residential and Commercial Construction 
(Formerly Insulating Foam for Wall Construction)
    Comment: One commenter proposed the following definition for this 
item: Foam insulating products designed to provide a sealed thermal 
barrier for residential or commercial building construction 
applications, including walls, ceilings, attics and crawl spaces. The 
commenter recommended this definition because biobased spray foam can 
and is used in more than just walls, including floors and ceilings.
    Response: USDA agrees that the various applications referenced by 
the commenter should be included in the item designation. The 
definition of this

[[Page 27942]]

item was intended to be broad so that products such as those identified 
by the commenter would be included. The definition of the item was also 
intended to reflect the products that were evaluated for the item. Upon 
review of the products that were evaluated, USDA has determined that 
the item definition needs to be revised to specifically apply to 
plastic insulating spray foam products. This revision aligns the 
definition more appropriately to the products that were evaluated. At 
proposal, one rigid panel product with 65 percent biobased content was 
considered to be a product in this item. However, because information 
was available for only a single rigid panel product, USDA has decided 
to limit the current designation to spray foam products and to attempt 
to gather sufficient data to designate rigid foam insulating panels as 
a subcategory of this item at a later date. Therefore, the one rigid 
foam product was removed from the data set for this item.
    In addition, USDA has determined that the name of this designated 
item needed to be revised. First, the proposed item's name gives the 
impression of a much more narrow range of products (i.e., wall 
construction) than appropriate. Second, the item's name should help the 
user understand that products within this item are plastic insulating 
foam products. Therefore, USDA has changed the name of this designated 
item in the final rule from ``Insulating Foam for Wall Construction'' 
to ``Plastic Insulating Foam for Residential and Commercial 
Construction.''
    Comment: One commenter recommended that the minimum biobased 
content be raised from 8 percent to 10 percent. According to the 
commenter, their first efforts at creating a biobased foam came in 
above 10 percent and the commenter feels anyone who is truly interested 
in manufacturing biobased foam insulations should be able to reach the 
10 percent mark.
    Response: The biobased content of the product that set the proposed 
minimum biobased content for this item was 11 percent, higher than that 
reported by the commenter. Because of the margin of error in the test 
method, which is plus/minus three percentage points, USDA proposed a 
minimum biobased content of 8 percent (11 percent minus 3 percentage 
points). However, since proposal USDA has received two additional 
biobased content test results for this item. These two tested samples 
contained 10 percent and 13 percent biobased material. As discussed in 
the previous response, USDA has also dropped from consideration the one 
rigid foam product whose biobased content was 65 percent. The biobased 
contents of the 5 tested products within this item are now 10, 11, 11, 
13, and 29 percent. Because 4 of the 5 data points are within a 3 
percentage point range, USDA considers these products to be 
representative of the biobased products for which we have biobased 
content information. While the remaining product offers a significant 
increase in biobased content from the other products (29 percent versus 
about 10 percent), USDA decided not to set the minimum biobased content 
based on this single product. Therefore, the product with the 10 
percent biobased content was determined to be the product upon which 
the minimum biobased content based. Subtracting the three percentage 
points to allow for testing variability results in a minimum biobased 
content of 7 percent for this item. USDA will continue to gather data 
on this item and, if sufficient data are obtained to justify 
subcategorization or a revision in the minimum biobased content, such 
change will be made in a future rulemaking.
    Comment: One commenter believes that there is no overlap or 
conflict between biobased spray foam insulation and EPA's CPG guidance 
for foam-in-place insulation. The commenter stated that they had 
searched EPA's on-line CPG supplier database and did not find any 
listings for foam-in-place insulation with a recycled content. The 
commenter then conducted a broader general Web-based search, which also 
did not reveal any companies that indicated they are making spray foam 
insulation that contains a recycled or recovered material. Therefore, 
the commenter concluded that if there are no commercially available 
spray foam products that meet the CPG definition, then in reality there 
will be no overlap or conflict with biobased spray foam insulation.
    Response: USDA has conducted additional research into whether there 
were any plastic spray-in-place insulating foams that were being 
manufactured with recycled materials. USDA contacted 13 insulation 
manufacturers and trade associations regarding spray-in-place 
insulation foams. None of the contacts identified a plastic spray-in-
place insulating foam product with recycled content. USDA did identify 
spray-in-place products with recycled cellulose content. To the extent 
that such recycled content products and biobased spray-in-place 
products can perform the same job, there may be an overlap. Overall, 
however, if a purchasing agent requires a plastic spray-in-place 
insulating foam, there should be no overlap between biobased spray-in-
placed products and CPG products.
    While there is unlikely to be an overlap with regard to spray-in-
place products, there is still a potential overlap between products 
within this designated item and products within the CPG's building 
insulation products group because products within this designated item 
include preformed products such as foam board. Polyisocyanurate 
(polyiso) materials, which are used to make insulating foam boards, 
almost always contain recycled content (see Appendix D in the document 
Technical Support for Final Rule--Round 2 Designated Items, which can 
be obtained from the BioPreferred Web site). Thus, while there may be 
no overlap with plastic spray-in-place insulating foam products, there 
is the potential for overlap between biobased foam board products and 
similar CPG products.
    In conclusion, USDA points out that potential overlap can occur 
between biobased products and CPG products when they are used for the 
same purpose and when both can meet the required performance 
specifications. The key consideration in determining if there is an 
overlap between a biobased product and a CPG product is whether a 
purchaser can select either product for a specific job. USDA does not 
expect this to occur, on the basis of currently available products, for 
spray-in-place insulation products, but it could occur for preformed 
insulation products, such as foam board, which may be designated at a 
later date.
    Comment: One commenter asked why it was necessary to conduct both 
E84-05 and E84-05e1 for insulating foam. According to the commenter, 
they have never seen anyone test 05e1 and were wondering if it can not 
be required or what the reasoning behind the extra requirement is.
    Response: It is not necessary to test an insulating foam using test 
methods E84-05 and E84-05e1. The lists presented in the preamble for 
each of the designated items are compilations of test methods and 
performance standards that manufacturers have reported and are not 
lists of standards against which products within an item must be 
tested. The rule does not require an insulating foam to be tested 
against one or more particular standards, let alone against both 
standards identified by the commenter. It is up to the manufacturer of 
the product to determine the appropriate standard(s) against which to 
test their products. If a standard must be used to qualify a product 
for preferred

[[Page 27943]]

procurement, it will be identified in the rule and not in the preamble.
    To avoid confusion and to better present standards in future 
proposals, USDA is refining the presentation of the ASTM standards to 
present only the standard number (in this case, E84) and not the year 
in which it was adopted (in this case, -05 and 05-e1).
    Comment: One commenter questioned the use of a square foot as the 
unit of measure for the BEES analysis. According to the commenter, foam 
insulation is measured in board feet, which is 1-foot by 1-foot at a 1-
inch depth. The commenter pointed out that this is important because 
$1.10 a square foot is hard to measure without knowing the depth of 
this insulation. For example, the commenter's foam installed runs about 
40 cents a board foot, so at 3 inches deep your costs are $1.20 for 
every square inch at 3 inch depth.
    Response: USDA agrees with the commenter that the functional unit 
for this item, as presented in the proposal, was incorrect. The 
functional unit for this item should have been reported as ``one-square 
foot that is 3.5 inches deep.'' USDA has updated this information on 
the BioPreferred Web site.
Hand Cleaners and Sanitizers
    Comment: One commenter recommended adding skin surface removal 
standards to the rulemaking for hand cleaners and sanitizers, noting 
that the three performance standards (ATCC 11229, ATCC 6358, and ATCC 
6539) identified measuring the sanitizing action of disinfectants and 
do not address removal, which is what hand cleaners are designed to do.
    Response: USDA has searched the list of performance standards 
posted by the National Science Foundation, the EPA, the Food and Drug 
Administration, and the National Institute of Health to investigate 
whether any of these organizations have performance standards for hand 
cleaners. The search of these organizations' sites did not identify any 
performance standards for hand cleaners.
    USDA also contacted the commenter to determine if the commenter has 
any information on specifications for hand cleaners. The commenter 
provided USDA information on food safety, which included hand washing 
requirements. The commenter also provided a link to hand hygiene in 
health care settings. This information is available on the BioPreferred 
Web site.
    USDA would appreciate any additional information on hand cleaning 
performance standards that the commenter, or others, could provide. Any 
information received by USDA will be made available on the BioPreferred 
Web site.
    Comment: One commenter stated that some of the hand cleaner 
products in the technical information did not seem accurate to the 
proposed definition, pointing to one product described as a ``whole 
body shampoo'' for skin and hair. The commenter recommended that the 
category be restricted to hand cleaners and sanitizers and that the 
definition be refined based on their input.
    Response: USDA agrees that products within the technical documents 
and those used to define an item need to be consistent with the 
definition of the designated item. USDA evaluated the product described 
by the commenter and decided, because the product could be used as a 
hand cleaner, to leave the information about this product on the 
BioPreferred Web site with the other hand cleaners and sanitizers 
products. USDA's decision is based on the idea that as long as a 
product is marketed within a designated item, it should not matter if 
the product is also capable of performing in another designated item. 
The fact that this cleaning product can also be used as a shampoo 
should not eliminate it from being considered as a hand cleaner if it 
can perform that function and if it meets the minimum biobased content 
required of a hand cleaner. USDA notes that this particular product was 
not used in either developing the minimum biobased content or for the 
BEES analysis.
    Comment: Two commenters recommended creating subcategories for hand 
cleaners. Both commenters suggested at minimum recognizing hand 
cleaners that are designed to remove soil, grease, etc., and those that 
are designed to kill microorganisms (antimicrobial). One of the 
commenters suggested following FDA formulation specifications to help 
develop subcategories. The other commenter suggested addressing hand 
cleaners and sanitizers in the same manner as was done for greases by 
providing a general category definition and then listing and defining 
subcategories as follows:
    Hand Cleaners and Sanitizers--Personal care products formulated for 
use in removing a variety of different soils, greases, and similar 
substances, or bacteria from human hands with or without the use of 
water.
    Hand Cleaners--Personal care products formulated for use in 
removing a variety of different soils, greases, and similar substances 
from human hands with or without the use of water.
    Hand Sanitizers--Personal care products formulated for use in 
removing bacteria from human hands with or without the use of water.
    Hand Cleaners and Sanitizers--Personal care products formulated for 
use in removing a variety of different soils, greases and bacteria from 
human hands with or without the use of water.
    This commenter also suggested that, if USDA wants to retain a 
single item designation for hand cleaners and sanitizers, the 
definition be modified to read: Hand Cleaners and Sanitizers--Personal 
care products formulated for use in removing a variety of different 
soils, greases, and similar substances, and/or bacteria from human 
hands with or without the use of water.
    Response: USDA agrees with the commenters that hand cleaners and 
sanitizers should be subcategorized because these two types of products 
meet very different performance specifications; that is, the sanitizing 
aspect requires those products to meet a performance level not required 
of hand cleaners. In the final rule, USDA is subcategorizing this 
designated item into two subcategories--(1) hand cleaners and (2) hand 
sanitizers, which includes cleaners that are formulated to be both a 
hand cleaner and sanitizer. USDA does not believe that a third separate 
subcategory for cleaners formulated to be both a hand cleaner and 
sanitizer is needed. A product that meets the minimum biobased content 
level and the sanitizing requirements to qualify as a hand sanitizer 
will also meet the minimum biobased content for a hand cleaner, which 
is lower than for a hand sanitizer.
    USDA separated the products within this item into each of the two 
subcategories and then identified the biobased contents for the 
products within each subcategory. For hand cleaners, the biobased 
contents of the 21 tested hand cleaners are 21, 23, 33, 42, 42, 44, 45, 
67, 70, 78, 80, 82, 83, 84, 84, 85, 86, 92, 95, 96, and 100 percent. 
Because there is a significant break between the 45 percent product and 
the 67 percent product, USDA reviewed the available product information 
to determine if there was any justification for creating two 
subcategories within this item. USDA's review of the information 
available for the products within these two groups did not identify any 
performance claims or other features that would justify further 
subcategorization. Because there are a significant number of products 
within the group with biobased contents above 67 percent, and because 
USDA could not identify any unique performance features within products 
in the other

[[Page 27944]]

group, the minimum biobased content has been set based on the product 
with 67 percent biobased content. Reducing the 67 percent by 3 
percentage points to account for testing variability results in a 
minimum biobased content of 64 for this subcategory. In addition, the 
biobased contents of available products will be posted on the 
BioPreferred Web site, which will allow purchasing agencies the 
opportunity to review the biobased contents of available products and 
select those with higher biobased contents.
    For hand sanitizers (and hand cleaners and sanitizers), the 
biobased contents of the 14 tested hand sanitizers are 3, 24, 76, 76, 
80, 80, 88, 89, 90, 91, 94, 95, 95, and 96 percent. Within this data 
set, there is a significant break between the 24 percent product and 
the 76 percent products. USDA investigated the products below this 
break in the data but could not identify any performance claims or 
other unique features that justified creating a subcategory or setting 
the minimum biobased content on either of the two products below the 76 
percent level. USDA is, therefore, setting the minimum biobased content 
for the hand sanitizer subcategory at 73 percent, based on the product 
with a tested biobased content of 76 percent.
    Additional details on the subcategorization and establishment of 
their minimum biobased contents for products within this item can be 
found in Chapter 2 of the document ``Technical Support for Final Rule--
Round 2 Designated Items,'' which is available on the BioPreferred Web 
site.
    Finally, USDA has generally adopted the commenter's suggested 
definitions, with the exception of hand sanitizers, where USDA has 
combined the commenter's suggested definition for hand sanitizers with 
the suggested definition of hand cleaners and sanitizers.
    Comment: One commenter recommended that the minimum biobased 
content for hand cleaners be set closer to 67 percent, based on the 
data in the background information, rather than at the proposed 18 
percent. The commenter stated that, if the differences in content 
levels reflect differences in use or consistency (e.g., gel vs. 
liquid), then USDA should provide separate content levels for the 
various uses or consistencies.
    Response: As noted in the previous response, USDA is breaking this 
item into two subcategories--hand cleaners and hand sanitizers. Based 
on the data available for both subcategories, USDA is setting the 
minimum biobased content for hand cleaners at 64 percent and for hand 
sanitizers at 73 percent.
    Comment: One commenter recommended that, in the absence of 
extensive testing to determine the efficacy of hand cleaner and 
sanitizer products in their use in the health care industry, USDA 
exempt the health care industry from the preferred procurement 
requirement for hand cleaners and sanitizers. The commenter stated that 
doing so will ensure that health care professionals will be able to 
obtain products that meet patient safety needs. The commenter pointed 
out that EPA is responsible for determining whether or not a product 
can be considered a disinfectant and asked whether this had been 
considered in the development of requirements to procure biobased hand 
cleaners and sanitizers.
    Response: The commenter is seeking a categorical exemption from the 
preferred procurement program for these products when used in 
healthcare facilities because there is an absence of testing to 
demonstrate the efficacy of these products in a healthcare setting. 
USDA does not believe that a categorical exemption for these products 
is warranted for the reasons discussed in the following paragraphs.
    USDA has met with various Federal agencies during the development 
of the designation rules and, as discussed earlier in this preamble, 
has worked with DoD and NASA to develop an exemption for all items when 
used in products or systems designed or procured for combat or combat-
related missions and for spacecraft systems and launch support 
equipment. However, an exemption for the hand cleaners and sanitizers 
designated item has not been requested by other Federal agencies that 
use these products in healthcare settings (such as the VA hospitals). 
While USDA values and considers the opinion of individual commenters in 
the rulemaking process, the concerns raised by this commenter do not 
provide sufficient support, in USDA's opinion, to justify an exemption 
for this item when other significant users of products within the item 
have not requested an exemption.
    The statutory requirements of FSRIA require USDA to designate items 
for preferred procurement and to make available to the procurement 
agencies information on the designated items, including information on 
the performance characteristics of products offered within a designated 
item. It is still the responsibility of the procurement agent to 
determine whether a biobased product, or any other product, meets the 
performance requirements of the procuring agency for which the product 
is being bought and its intended use.
    The statute requires procuring agencies to give preference to 
biobased products in designated items, but does not require the agency 
to purchase biobased products if one of three conditions exist, one of 
which addresses the performance, or lack thereof, of the biobased 
product. Specifically, the statute allows a procuring agency not to buy 
a biobased product within a designated item if the biobased product 
fails to meet the performance standards set forth in the applicable 
specifications or fails to meet the reasonable performance standards of 
the procuring agencies (see section 9002(c)(2)(B)). Because the statute 
already provides the relief sought by the commenters, there is no need 
to include such exemptions in the rule.
    Providing a categorical exemption could have the effect of 
discouraging manufacturers from developing biobased products within a 
designated item. USDA believes this would have an unnecessary dampening 
effect on potential markets for acceptable biobased products in the 
future.
    Finally, USDA urges manufacturers to note the concerns raised by 
this commenter and recognize that extra effort on the part of 
manufacturers may be necessary to provide procurement agents with 
evidence that the manufacturer's products meet the agency's 
requirements. This may require manufacturers to test their products 
against all applicable standards and requirements for the markets 
(e.g., healthcare facilities) in which they wish to market their 
products. In addition, because procuring agencies are not required to 
purchase biobased products if they fail any one of the criteria that 
allow an agency to not purchase a biobased product within a designated 
item, USDA is actively working to identify and publicize relevant 
performance standards so that manufacturers can understand how to make 
their products more desirable. To make information on the performance 
characteristics of biobased products more accessible to the procuring 
agencies, USDA is working with manufacturers to post product 
performance information on the BioPreferred Web site or to provide a 
link to the manufacturer's Web page where such information can readily 
be obtained. While manufacturers have the responsibility to test their 
products against applicable agency performance requirements and 
specifications, in order to comply with section 2902.4 of the 
Guidelines, procuring agencies will have to reexamine their performance

[[Page 27945]]

requirements and specifications to ensure that they are not biased 
against biobased products, that they are still necessary and relevant, 
and that they are not redundant.
    With regard to the commenter's question as to whether the Agency 
had considered EPA's responsibility for determining whether a product 
can be considered a disinfectant, USDA contacted EPA and was informed 
that EPA does not regulate hand sanitizers. While EPA regulates a wide 
range of antimicrobial products, it does not regulate products used 
directly on humans or animals. Topical antimicrobial products are 
regulated by the Food and Drug Administration (FDA). FDA published a 
proposed rule on topical antimicrobial drug products for human use in 
the form of a ``Tentative Final Monograph'' in 1994. At that time, FDA 
requested comments on the use of topical antimicrobials as hand 
sanitizers or dips. The monograph contains the various testing and 
labeling requirements for these products. A representative of the Soap 
and Detergent Association indicated that, in practice, manufacturers 
follow the guidance in the Tentative Final Monograph.
    USDA reviewed the June 17, 1994, Federal Register notice and 
determined that the definition of hand sanitizer in this final rule is 
consistent with FDA's discussion on health-care personnel handwash or 
antiseptic handwash, which are the equivalent categories to hand 
sanitizers. In that notice, FDA indicated that labeling of such product 
could be phrased as ``handwashing to decrease bacteria on the skin.'' 
See Appendix E of the document ``Technical Support for Final Rule--
Round 2 Designated Items,'' which is available on the BioPreferred Web 
site, for the relevant portion of the June 17, 1994, FR notice.
    Comment: One commenter recommended that a more thorough industry 
investigation be conducted prior to the publication of a final rule by 
conducting more analyses on products not found in the initial 
investigation. The commenter stated that they were concerned that 
USDA's collection methods were deficient because so few of products 
formed the basis of the proposed rule. The commenter referred to a 
California Air Resources Board survey which identified 291 
antimicrobial hand or body cleaners or soaps, 43 antimicrobial dry hand 
washes, 497 general hand or body cleaners or soaps, 26 hand wipe 
towelettes, and 87 products in a category of other hand cleaners, 
sanitizers, and soaps sold in the state of California alone. The 
commenter therefore recommended that USDA conduct a very thorough 
evaluation of both hand cleaners and sanitizers. The commenter also 
stated that the BEES and biobased contents obtained may not be 
representative of all products on the market, representing instead only 
a small subset of products. The commenter recommended that the 
rulemaking demonstrate that the products evaluated are representative 
of the market.
    Response: USDA appreciates the information concerning the CARB 
study, which covered both biobased and non-biobased products. Because 
the purpose of the BioPreferred Program is to identify biobased 
products for potential preferred procurement, USDA's product 
investigation efforts did not seek out non-biobased products. USDA 
identified 36 manufacturers of biobased products within this item 
(including both subcategories), with 73 biobased products being 
marketed. The range of biobased contents among the 35 tested products 
is from 3 percent to 100 percent.
    While USDA has in place a rigorous procedure for identifying 
products that are biobased, USDA recognizes that its procedure will not 
uncover all possible biobased products. Based on available data, USDA 
cannot determine if the samples that were voluntarily submitted by 
manufacturers are representative of all biobased products within this 
item. Regardless, USDA believes that it is reasonable to set minimum 
biobased contents based on the information it does have. If the 
commenter or others have additional information on the biobased content 
of other biobased products within this item, USDA encourages the 
commenter and others to submit that information to USDA. USDA will 
evaluate the additional information in relationship to the minimum 
biobased content for this designated item.
    For this and all other items, USDA welcomes assistance in 
identifying manufacturers and their biobased products for the preferred 
procurement program. A list of such items can be found on the 
BioPreferred Web site.
Composite Panels
    Comment: Two commenters recommended that the description of 
composite panel be expanded to recognize that other materials, such as 
wheat or rice straw, wood, and wood fibers, may be used in the 
manufacture of composite panels. One of the commenters also recommended 
that, if the description continues to include reference to recycled or 
recovered wood, the EPPS CPA 2-06 standard should be referenced with 
its thorough reference list of recycled/recovered fibers sources used 
in composites.
    Response: The commenters suggested expanding the description of 
what composite panels may be made from (see 71 FR 47574) to include 
``wood and wood fibers.'' The description provided on page 47574 of the 
August 17, 2006, preamble is intended to be illustrative of types of 
materials used to manufacture composite panels; it does not exclude 
composite panels engineered from wood or wood fibers. Further, the 
definition of this designated item does not limit the types of 
materials that can be used to create a biobased composite panel. 
Therefore, USDA has not changed the definition of this item with regard 
to the commenter's recommendation. As discussed in the next response, 
however, USDA has created subcategories within this item.
    Comment: One commenter identified the potential applications in 
which biobased composite panels may overlap with EPA designated 
recovered content products and stated that it is unclear whether the 
preferred procurement of composite panels was confined to these very 
narrow applications. The commenter pointed out that composite panels 
are used in a wide variety of products that may be specified and 
purchased by the government including furniture, office and kitchen 
cabinets, exterior siding, laminate flooring, shelving, moldings, mill 
work, doors, paneling, floor underlayment, stair treads. The commenter, 
therefore, recommended that the purchasing applications need to be 
expanded to include these categories.
    Response: USDA agrees with the commenter that composite panels can 
be used in many different applications. As a result of this and other 
comments, USDA has re-evaluated the product data for this proposed item 
and has created five subcategories, as follows: (1) Plastic lumber 
composite panels, (2) acoustical composite panels, (3) interior panels, 
(4) structural interior panels, and (5) structural wall panels. 
Definitions were developed for each subcategory based on the typical 
applications for products with the subcategory. The definitions, as 
presented in the rule, provide examples of the types of applications 
for the subcategories but are not intended to be all inclusive of the 
variety of applications that exist.
    These subcategories were developed based on the range of 
applications as well as the biobased content range among the tested 
products. The biobased content data for the subcategories were as 
follows:

[[Page 27946]]

    (1) Plastic lumber composite panels--26 and 29 percent.
    (2) Acoustical composite panels--40 percent.
    (3) Interior panels--58, 60, 61, 62, 64, 65, and 66 percent.
    (4) Structural interior panels--92, 92, and 92 percent.
    (5) Structural wall panels--97 and 100 percent.
    Based on the narrow range of biobased contents within each of the 
subcategories, the minimum biobased contents were set at: Plastic 
lumber composite panels--23 percent, acoustical composite panels--37 
percent, interior panels--55 percent, structural interior panels--89 
percent, and structural wall panels--94 percent.
    Comment: One commenter recommended that additional standards be 
referenced for composite panels. These standards are: ANSI A208.1-1999 
for Particleboard, ANSI A208.2-2002 for MDF, ANSI A1 35.4-2004 for 
Basic Hardboard, ANSI A135.5-2004 for Prefinished Hardboard Paneling 
and ANSI/AHA A135.6-1998 for Hardboard Siding. The commenter also 
recommended that the final rule reference the Environmentally 
Preferable Product Standard, EPPS 2-06, which specifies recycled/
recovered fiber content. For composite panel purchases linked to 
kitchen cabinets, the commenter recommended referencing the Kitchen 
Cabinets Manufacturers Association program.
    Response: USDA thanks the commenter for identifying these ANSI and 
NSIIAHA standards. USDA has added these standards for composite panels 
to the BioPreferred Web site. However, USDA does not see the need to 
make reference to the other standards as they do not apply to the 
designation of composite panels for preferred procurement of biobased 
products. Those wanting to learn about the standards for recycled/
recovered content should consult EPA's EPPS Web site. In addition, the 
designation of composite panels is for the purchase of the panels and 
not for the end product, such as kitchen cabinets (i.e., kitchen 
cabinets are not a biobased product being designated for preferred 
procurement).
    Comment: One commenter requested that the final rule for composite 
panels indicate that the Composite Panel Association has adopted a 
Grademark Certification Program for Environmentally Preferable Products 
as defined by Federal Executive Order 13101. The EPP certification 
program covers particleboard, medium density fiberboard and hardboard 
and requires that 100 percent of the content of the product is 
recycled/recovered fiber. The commenter recommended that the 
description of composite panel constituents in the proposed rule be 
modified to become inclusive of this standard.
    Response: USDA thanks the commenter for identifying the Grademark 
Certification Program, which contains information on products within 
this designated item. USDA has referenced this program on the 
BioPreferred Web site. This will provide additional information on 
these products to those who purchase such products. However, there is 
no need to include this certification program into these standards as 
they do not affect determining whether a product qualifies as a 
biobased product eligible for preferred procurement.
    Comment: Three commenters stated that the proposed minimum biobased 
content was too low.
    One of the commenters stated that, based on the data in the 
background information, the level should be set at 60 percent or 
higher. The commenter then stated that, if the lower content levels 
reflect products used for different applications than those with higher 
content levels, USDA should provide separate content recommendations.
    The second commenter stated that the proposed minimum biobased 
content of 26 percent was apparently based on the biobased content of 
the lowest performing product tested. The commenter felt that this was 
a rather lenient way to set a standard, particularly when most 
composite products are 100 percent biobased when the metric includes 
the raw materials referenced in EPPS CPA 2-06. The commenter then 
suggested that the standard be set to give preference to the highest 
biobased content products.
    The third commenter stated that they believe that the proposed 
minimum biobased content falls below the minimum goals set for the 
preferred procurement program and actually could create a disincentive 
for expanding biobased product use. Based on the available data in the 
rulemaking and their experience with their own product, the commenter 
recommended setting the minimum content standard at a higher level. The 
commenter pointed out that a 26 percent standard was proposed in spite 
of the test results showing a mean content of all products tested of 71 
percent and reflects the content of the lowest 12 percent of the 
products tested. The commenter points out that only 8 of 51 products 
were tested, less than 16 percent of all products considered. The 
commenter then stated that with the median of tested products at 71 
percent content, and 4 products testing at greater than 90 percent 
content, it is realistic to expect that other products, if tested, 
would provide important additional support for setting the content 
standard at a higher level than the product with the lowest content. 
The commenter felt that setting the standard below the level of content 
of the product with the lowest biobased content is inconsistent with 
the goal of discouraging the use of products with de minimums biobased 
content to satisfy the requirements of Section 9002. Rather, according 
to the commenter, setting a higher level truly would encourage expended 
use of agricultural products in biobased products and would have a 
greater positive impact on rural communities by providing new and 
expanded markets for agricultural producers and expanding the 
manufacturing base in those communities. Finally, the fact that 75 
percent of the products tested at greater than 50 percent content 
clearly demonstrates, according to the commenter, that products with 
the necessary performance-based characteristics can be developed and 
procured for the stated Federal purposes with a level of biobased 
content substantially higher than 26 percent.
    Response: As discussed in a previous response, USDA has re-
evaluated the proposed designated item and has determined that it is 
reasonable to create subcategories for this item based upon application 
use. USDA believes that the creation of the five subcategories, with a 
separate minimum biobased content for each, adequately addresses the 
commenters' concerns. Additional details on the subcategorization and 
establishment of their minimum biobased contents for products within 
this item can be found in Chapter 3.0 of the document ``Technical 
Support for Final Rule--Round 2 Designated Items,'' which is available 
on the BioPreferred Web site.
    Comment: One commenter pointed out that the Composite Panel 
Association (CPA) has commissioned the Consortium for Research on 
Renewable Industrial Materials to conduct life-cycle inventory and LCA 
on particleboard, medium density fiberboard, and hardboard, the results 
of which are expected to be available in February 2007. The commenter 
encouraged the USDA to contact CPA about the CORRIM study. The 
commenter pointed out that, as just one important consideration that 
will influence the LCA report, wood is neutral with regard to carbon 
emission to the atmosphere, unlike petroleum-based products.

[[Page 27947]]

    Response: USDA thanks the commenter for the information concerning 
the CORRIM and its ongoing life-cycle inventory and analysis. USDA has 
contacted the Composite Panel Association and requested that a copy of 
the study be sent to USDA once it is completed. USDA will then forward 
the results to NIST for review. If NIST validates the results, USDA 
will post the results on the BioPreferred Web site in order to provide 
the information to purchasers.
Fluid-Filled Transformers
    Comment: One commenter stated that their Master Specifications 
requires transformer fluids to meet ASTM D3487-00, which was not listed 
among the standards for transformer fluids in the proposed rule. 
According to the commenter, in order for their facilities to use 
biobased products in lieu of traditional dielectric, the biobased fluid 
must meet original equipment manufacturer's specifications for existing 
equipment or performance standards related to electrical power 
generation and transmission for new transformers.
    Response: USDA thanks the commenter for identifying this standard. 
USDA has included this standard in the technical information on this 
item on the BioPreferred Web site.
    Comment: Three commenters stated that the proposed minimum biobased 
content of 66 percent for transformer fluids is too low. Two of the 
commenters recommended a minimum biobased content of 90 percent. One of 
the commenters pointed out that there are currently over 20,000 
functioning transformers, produced by more than two dozen domestic 
manufacturers in at least 100 domestic electric utilities, filled with 
more than 95 percent vegetable oil-based dielectric coolants from at 
least two fluid manufacturers. According to this commenter, there are 
no technical reasons to reduce the minimum content to such a low value. 
The commenter suggested using a minimum biobased carbon content of 90 
percent, stating that anything lower could be an incentive for 
suppliers to dilute the more expensive biobased base oil with cheaper 
petroleum oils. By such a dilution, the result would be using less 
biobased oils, increasing the fire hazard, and reducing the 
environmental benefits.
    The second commenter stated that there are two basic chemistries 
used to make biobased transformer fluids--vegetable oil and synthetic 
esters. According to this commenter, the vegetable oil-based fluids are 
typically in the 95 percent biobased content range, while synthetic 
esters are in the 70 percent range. The commenter stated that synthetic 
ester-based transformer fluids are twice the cost of vegetable oil-
based transformer fluids and are only used in very extreme 
applications, such as arctic conditions. The commenter then stated that 
by adopting a 66 percent minimum, USDA is setting the threshold at a 
level to include rare specialty applications rather than focus on the 
mainstream market, and it would not likely result in much biobased 
purchase volume anyway due to very high price of the synthetic ester-
based transformer fluids. The commenter also felt that USDA may be 
creating an incentive for the introduction of ``vegetable oil--mineral 
oil blends'' that would unnecessarily use less biobased raw materials, 
thereby opposing the intent of BioPreferred Program. For these reasons, 
the commenter recommended a minimum biobased content for fluid-filled 
transformers of 90 percent.
    The third commenter stated that based on the limited data in the 
background document, the level should be higher, but given the very 
limited data, the commenter recommended that USDA re-consider the 
content levels if comments received from product manufacturers and 
vendors support a higher content recommendation.
    Response: USDA has re-evaluated the data for products within this 
item and has concluded that because there are two distinct types of 
formulations of transformer fluids, and because the ester-based fluids 
appear to be used primarily in severe weather applications, there is 
sufficient reason to subcategorize the item. Therefore, the fluid-
filled transformers item has been divided into two subcategories: (1) 
Synthetic ester-based fluid-filled transformers and (2) vegetable oil-
based fluid-filled transformers.
    Based on data available at proposal, USDA had biobased content 
information on one synthetic ester-based transformer fluid and one 
vegetable oil-based transformer fluid. The biobased contents of these 
two products were, respectively, 69 percent and 98 percent. Since 
proposal, USDA has obtained biobased content data on an additional 
vegetable oil-based transformer fluid. The tested biobased content of 
this product is 100 percent.
    For the synthetic ester-based fluid-filled transformers 
subcategory, USDA is establishing a minimum biobased content of 66 
percent based on the single product for which biobased content was 
tested. For the vegetable oil-based fluid-filled transformers 
subcategory, USDA is establishing a minimum biobased content of 95 
percent based on the two products tested.
    As pointed out by the commenter, the cost of the synthetic ester-
based product is sufficiently higher than the vegetable oil-based 
products to discourage their use, except in extreme applications. Thus, 
most purchasers are expected to buy the higher biobased content 
vegetable oil-based products regardless of the specified minimum 
biobased content. As pointed out elsewhere in this preamble, Federal 
agencies are expected under section 9002 to purchase products with the 
highest biobased content, as long as the products meet their 
performance needs and are available at an acceptable cost. To help 
purchasing agencies identify the biobased contents of available 
products and select those with higher biobased contents, the biobased 
contents of available products will be posted on the BioPreferred Web 
site.
    Additional details on the subcategorization and the establishment 
of the minimum biobased contents for this item can be found in Chapter 
5 of the document ``Technical Support for Final Rule--Round 2 
Designated Items,'' which is available on the BioPreferred Web site.
Disposable Containers (Formerly Biodegradable Containers)
    Comment: One commenter stated that the definition of containers is 
vague and needs clarification. The commenter recommended that this item 
be retitled ``disposable food service ware'' because ``biodegradable 
containers'' could be defined as encompassing boxes, pallets and 
packaging used to transport and store food products.
    Response: USDA agrees with this commenter that this item should be 
focused on disposable containers and, as noted in a response to a 
previous comment, has renamed this designated item as ``disposable 
containers.'' It is USDA's intent for this item to include products in 
addition to disposable food service ware. Such additional products 
include containers that may take the form of boxes and packaging. 
However, pallets are not containers and would not be included under 
this item. Therefore, USDA has not limited this item to products that 
are only in the food service arena as requested by the commenter.
    USDA notes that the products within this designated item may 
overlap with the EPA-designated recovered content product ``Paper and 
Paper Products.'' This EPA-designated recovered content product covers 
a wide range of paper products, including ``paperboard and

[[Page 27948]]

packaging.'' This subcategory, in turn, covers a variety of products, 
including corrugated shipping containers and industrial paperboard 
(e.g., mailing tubes). Additional information on this EPA-designated 
recovered content item, including the recommended recovered content 
levels for these products, can be found at http://www.epa.gov/epaoswer/non-hw/procure/products/paperbrd.htm.
    Comment: One commenter suggested that biodegradable containers that 
replace single-use disposable containers that are not now recycled 
(such as polystyrene take-out containers) are preferable and deserve to 
be given procurement preference.
    Response: As noted in the previous response, USDA has renamed this 
item as ``disposable containers.'' By doing so, preferred procurement 
will be given to disposable containers that are both biobased and 
biodegradable. This meets the commenter's request.
    Comment: One commenter believes that the requirement to meet ASTM 
D6400 ``Standard Specifications for Compostable Plastics'' is not an 
appropriate definition for the category of Biodegradable Containers for 
inclusion on the Biobased Products List. According to the commenter, 
this test methodology is relatively new and not widely used or accepted 
at this time. The commenter also stated that the cost requirements for 
this test may make it unaffordable to many small or start-up 
businesses, making it a significant barrier to inclusion on the list. 
The commenter indicated that there are many alternative compost test 
methodologies, including full-scale testing conducted by the USDA 
Agricultural Research Service, which was conducted in conjunction with 
the Department of the Interior, the Environmental Protection Agency and 
the General Services Administration. The commenter felt that this work 
needed to be considered in defining this category. The commenter then 
stated the current definition could exclude products with large amounts 
of biobased materials that could significantly expand the use of 
biobased materials even though such products would not be compostable 
according to the ASTM D6400 test. Such an outcome, according to the 
commenter, would be counter to the goals of the project. The commenter 
noted that the other nine categories in this rulemaking do not include 
such a requirement.
    Response: As stated in a response to another comment, the intent of 
this designated item is to give preferred procurement to biobased 
containers that are also biodegradable over disposable containers and 
not to give preferred procurement to biodegradable, biobased containers 
over biodegradable containers. To implement this intent, USDA has 
renamed the item to ``disposable containers'' and has added the 
requirement that the biobased versions of disposable containers be 
demonstrated to be biodegradable. The proposed rule included reference 
to ASTM D6400 as the method for determining whether or not a container 
is biodegradable. USDA agrees that some biobased versions of disposable 
containers may not be found to be biodegradable using ASTM D6400 
because of their composition, but may be found to be biodegradable 
under other, equivalent test methods. Therefore, in recognition of 
this, the final rule requires the use of ASTM D6400 or other applicable 
and appropriate standard for biodegradability to demonstrate that a 
biobased container is also biodegradable.
    Comment: Two commenters requested that the definition of 
biodegradable containers specifically exclude beverage bottles. 
According to the commenters, the current infrastructure to compost 
biodegradable containers and other biodegradable products is not yet 
developed and available in most U.S. communities and, thus, 
biodegradable beverage bottles that replace poly(ethylene 
terephthalate) (PET) or high-density polyethylene (HDPE) bottles are 
not necessarily preferable as these displace a product for which an 
established recycling infrastructure exists. The commenters claim that 
biodegradable beverage bottles in today's recycling infrastructure 
would end up neither composted nor recycled but in the reject stream of 
almost all recycling facilities in the U.S. The commenters then state 
that, if the USDA procurement program were to increase demand for 
biodegradable beverage bottles, this would have severe negative 
economic repercussions for well-established plastic bottle recyclers.
    Response: The purpose of the BioPreferred Program is to encourage 
the purchase of biobased products, including, if they qualify, soda 
bottles. Like the commenter, USDA is concerned that such products are 
disposed of in an environmentally responsible manner. USDA has 
consulted with EPA and with representatives of the Association of Post-
Consumer Plastic Recyclers (APCPR) to discuss this issue. APCPR 
explained that their primary concern with attempts to place PLA or 
other biobased plastics in existing recycling streams related to the 
negative impacts that these biobased plastics have on the recycling of 
PET. They pointed out that over seven billion pounds of PET are used 
annually in the country and that the recycling of PET has been adopted 
on a large-scale basis. There are two primary concerns related to the 
introduction of biobased plastics into the PET recycling stream. First, 
the presence of biobased plastics even in very small amounts (less than 
1 percent) causes the resulting recycled plastic to lose the clarity 
which is demanded in the largest market for these products (``soda'' 
and water bottles). Even a slight haze in the final product is 
unacceptable to the bottling industry. The second concern relates to 
the actual recycling technology. PET is separated from HDPE and other 
petroleum-based plastics by floatation. PET floats in water and the 
others do not. Most biobased plastics also float, however, making the 
separation of PET from biobased plastics using floatation technology 
impossible. Thus, if there are biobased plastics in the recycling 
stream they remain with the PET stream. Following separation, the PET 
is shredded and then placed in dryers to remove the moisture. Because 
biobased plastics melt at a temperature that is much lower than the 
melting temperature of PET, the biobased plastics tend to melt in the 
PET dryers. Recyclers have indicated that the presence of even 0.1 
percent of biobased plastics in the shredded stream can cause the 
dryers to ``gum up'' and results in the rejection of the contaminated 
PET.
    APCPR pointed out that an optical-type technology for separating 
biobased plastics from PET is available, but that it is very expensive. 
Because there is currently such a small amount of biobased plastics 
available for recycling, there is no economic incentive for recyclers 
to purchase the equipment necessary to separate it from PET. APCPR 
further explained that for the recycling of biobased plastics to become 
economically viable there needs to be both a readily available supply 
of used material and a significant market for the recovered plastic, 
neither of which exists today.
    APCPR also pointed out that biobased polymers used for other 
applications, such as ``clam shell'' containers and other therma-form 
products, do not present a problem for the recycling of those products. 
They also noted that composting in commercial composting operations is 
a viable alternative to the recycling of biobased polymers.
    USDA encourages procuring agents and those involved in recycling to 
provide education material to potential

[[Page 27949]]

purchasers and users on environmentally preferred disposal of such 
products. The APCPR Web site (http://www.plasticsrecycling.org) 
presents technical information on plastics recycling and procuring 
agents are urged to visit the site for more information. In addition, 
USDA will post relevant information in this regard on the BioPreferred 
Web site to assist manufacturers, purchasers, and users become aware of 
the potential impacts of biobased plastics on recycling and on the 
preferred disposable methods for such products.
    Comment: One commenter asked USDA to confirm whether biodegradable 
containers include products made with polylactic acid (PLA). If it 
does, the commenter suggested that EPA discuss the impact of mixing 
used PLA products with other plastics in recycling operations. The 
commenter pointed out that PLA can be a minor contaminant if mixed with 
fossil fuel based plastics such as PET and users of PLA products might 
inadvertently put used products in traditional recycling collection 
systems, because the products may appear similar to other types of 
plastic. The commenter suggested that users be advised instead to 
either compost their PLA products or work with PLA manufacturers to 
return the material back to them for recycling.
    Response: USDA confirms that a biodegradable container made from 
PLA would qualify as a biobased product under this item. As discussed 
in the previous response, USDA is concerned that any product that 
affects recycling adversely be disposed of properly. Therefore, USDA 
encourages the commenter and those involved in recycling to provide 
education material to potential purchasers and users on environmentally 
preferred disposal of such products. To the extent that an existing 
market for recycled bottles changes, USDA believes this creates an 
opportunity for a new market for the recycling of biodegradable 
containers.
    Comment: Three commenters recommended lowering the minimum biobased 
content for biodegradable containers. One commenter recommended 
lowering the minimum biobased content from 96 percent to 72 percent, 
and one commenter recommended lowering it to 85 percent. The third 
commenter did not offer a specific recommendation as an alternative 
biobased content.
    In support of their recommendation of 72 percent, the first 
commenter stated that their product has a biobased content of 75 
percent, but had not been tested in time to be part of the data set 
used for the proposed rule, although its BEES analysis had been used. 
The commenter stated that by setting the minimum biobased content at 72 
percent, the goal of inclusion of high performing biobased products to 
maximize the use of these materials will be better met.
    The second commenter supported their recommendation (85 percent) by 
stating that this segment of the market is still very new, as evidenced 
by the fact that only 6 containers were found and only 2 provided 
biobased percentages. The commenter stated that an 85 percent minimum 
is still significantly higher than that of biodegradable films and 
cutlery and that the lower threshold should enable the properties of 
these materials to be expanded and for more applications to be 
marketed. The commenter then stated that USDA can always raise the 
minimum contents in the future as the market becomes more fully 
developed.
    The third commenter expressed concern that a 96 percent minimum 
biobased content would severely limit the product selection options for 
containers. This commenter pointed out that suitable containers with 
biobased contents ranging from 45 to 80 percent are under development 
and should be commercially viable in 2007, including two products that 
the commenter is currently working on. The commenter also referred to a 
new class of biobased containers incorporating PLA based solutions that 
would add toughness to the containers. The commenter, therefore, 
requested USDA to refrain from setting a minimum biobased content of 96 
percent for biodegradable containers in favor of setting the biobased 
content at a lower level, thereby increasing the number of potential 
products and materials that would be available. The commenter concluded 
by stating that by implementing the 96 percent limit proposed, the only 
current material would be PLA, which is in very short supply and is 
very limited in terms of usage because of heat resistance and impact 
resistance.
    Response: At the time USDA investigated this item for designation, 
biobased content data were available for two products, which had 
biobased contents of 99 and 100 percent. Since the publication of the 
proposed rule, the first commenter has provided a sample that has a 
tested biobased content of 75 percent. USDA has also obtained biobased 
content test results for products with 29, 32, and 98 percent biobased 
content. Thus, the data set for this item is now 29, 32, 75, 98, 99, 
and 100 percent biobased contents. Because there is a significant break 
between the 32 percent product and the 75 percent product, USDA 
reviewed the available product information to determine if there was 
any justification for creating two subcategories within this item. USDA 
is aware that some biobased disposable containers provide improved 
performance characteristics when compared with others when used in high 
temperature/moisture applications. At this time, however, USDA does not 
have sufficient product performance information to establish 
subcategories. USDA will continue to gather information on this item 
and, if sufficient product performance data can be obtained, will 
consider creating subcategories in a future rulemaking. USDA is setting 
the minimum biobased content for this item at 72 percent based on the 
product with a tested biobased content of 75 percent.
    Additional details on the products within this item can be found in 
the document ``Technical Support for Final Rule--Round 2 Designated 
Items,'' which is available on the BioPreferred Web site.
    Comment: One commenter suggested that, in addition to the BEES 
analysis, food safety and product integrity needs to be incorporated in 
product choice. According to the commenter, biobased biodegradable 
containers produced from natural starch-based or synthetic corn-based 
feedstock have their limits on what food products can be safely 
packaged in them. The commenter pointed out that this item does not 
take variability of foods into account, such as hot coffee, high 
moisture foods, or acidic condiments when prescribing biodegradable 
containers under this rule. The commenter concluded by stating that 
food packaging made from biomass is still experimental and there remain 
considerable data gaps on its feasibility.
    Response: While USDA agrees with the commenter that some biobased 
biodegradable containers will perform better under certain 
circumstances than others, there are products within this item that are 
being used in the market place. Thus, USDA disagrees with the 
characterization of biobased containers as ``experimental,'' although 
there are some products still being developed in this item as well as 
in other items. As more products are developed within this item, USDA 
will make information available on the BioPreferred Web site to improve 
the data available to procuring agencies. Finally, the statute allows 
purchasers to not give preferred procurement if a biobased product 
fails to meet applicable performance standards.

[[Page 27950]]

Fertilizers
    Comment: One commenter stated that the definition of fertilizers 
appears to cover both biobased and chemical fertilizers and asked if 
this was correct.
    Response: The commenter is correct--the definition of fertilizers 
covers both biobased and chemical fertilizers.
    Comment: One commenter asked if a hypothetical product that 
contains 10 percent total organic carbon by weight, and 90 percent 
other materials would qualify as a fertilizer as long as a minimum 71 
percent of the weight of the total organic carbon component is 
qualifying biobased carbon.
    Response: The commenter is correct--such a hypothetical product 
would qualify as a fertilizer and would be afforded preferred 
procurement as long as its biobased content met or exceeded the minimum 
biobased content for fertilizers.
    Comment: One commenter suggested USDA rename the item ``biobased 
fertilizers,'' to distinguish it from other types (e.g., inorganic, 
biosolids) fertilizers. Otherwise, for example, it appears that any 
type of fertilizers could be used in organic farming.
    Response: Under this item, the intent is to provide preferred 
procurement for fertilizers that are biobased. Such biobased 
fertilizers would replace ``fertilizers,'' not biobased fertilizers. 
The name and definition of this item, therefore, must remain 
``fertilizers.''
    Biobased fertilizers may contain chemical and synthetic products 
and even recycled hazardous materials. Therefore, some biobased 
fertilizers may be incompatible with those that can be used in organic 
farming. In addition, if a biobased fertilizer contains recycled 
hazardous wastes, the fertilizer would need to meet applicable land 
disposal restriction standards for any hazardous constituents they 
contain, as required under 40 CFR 266.20(d).
    Comment: One commenter asked whether these products are blends of 
both biobased and chemical components or whether they mostly consist of 
biobased components. The commenter suggested adding a discussion 
regarding what other types of materials could be in the fertilizers 
along with the ``waste'' or ``recovered'' biobased components (e.g., 
chemical/synthetic ingredients).
    Response: In response to the commenter's questions, most biobased 
fertilizers are likely to consist mostly of biobased components, but 
they can be made from blends of both biobased and chemical components. 
USDA has added additional information to the definition of fertilizer 
in the final rule to identify types of material that may be found in 
fertilizers.
    Comment: One commenter asked whether the biobased carbon in these 
fertilizers is always recovered, or is it ever virgin. The commenter 
stated that if it's always recovered, then there will always be overlap 
(i.e., not ``in some cases'' as stated in proposed Sec.  2902.22(d), 
but there will never be an issue since buying this product will 
simultaneously satisfy both statutes. The commenter suggested that USDA 
note in the preamble that if any of the fertilizers in question are 
made from recycled hazardous wastes, the fertilizer products would need 
to meet applicable land disposal restriction standards for any 
hazardous constituents they contain, as required under 40 CFR 
266.20(d).
    Response: At this time, USDA is unaware of any biobased fertilizers 
made from virgin materials. USDA agrees, therefore, that ``in some 
cases'' is incorrect based on our current knowledge. USDA also agrees 
with the commenter that this is irrelevant to the overlap concern 
because buying a biobased fertilizer satisfies both programs. With 
regard to the commenter's second point concerning the potential for 
fertilizers being made with recycled hazardous waste and thus not being 
able to meet applicable land disposal restriction standards, while this 
is not applicable to biobased fertilizers alone, USDA will post such 
information on the BioPreferred Web site. In addition, USDA has added a 
note in the final rule concerning the potential effect of fertilizers 
that contain recycled hazardous material.
    Comment: One commenter stated that text in the preamble implied 
that EPA has finalized the designation for fertilizers under the CPG 
program. Because EPA has not done so at this time, the commenter 
requested that USDA check with EPA on the status of fertilizers before 
finalizing the designation. If EPA has not finalized the designation of 
fertilizers for the CPG program, EPA suggested that USDA use the word 
``proposed'' when referring to fertilizers in the context of the CPG 
program. The commenter also stated that if the EPA final rule for 
fertilizers does not get finalized prior to the promulgation of this 
designated item, then USDA should delete proposed Sec.  2902.22(d) 
altogether, and instead address this issue solely in the preamble. The 
commenter provided suggested language (e.g., Overlap will not be an 
issue for fertilizers unless and until EPA finalizes the CPG 
designation for fertilizers made from recovered organic materials, in 
which case. * * *'')
    Response: EPA finalized the designation of ``fertilizer made from 
recovered organic materials'' on September 14, 2007. As a result, 
paragraph (d) of section 2902.22 was retained in the final rule.
Sorbents
    As part of USDA's re-evaluation of the proposed minimum biobased 
contents in this regulation, USDA examined the proposed level of 52 
percent for the sorbents item. Biobased content data are available for 
11 products within this item, as follows: 55, 78, 92, 94, 97, 99, 100, 
100, 100, 100, and 100 percent. As the data range shows, there are 
significant breaks in the tested biobased contents between the 55 
percent product and the 78 percent product, and between the 78 percent 
product and the 92 percent product. Based on the information available, 
no obvious performance features justified subcategorizing or including 
the lower biobased content items in the final designation. In addition, 
USDA identified a grouping of products with biobased contents above 92 
percent. This grouping would afford the Federal procurement community 
with numerous product options at the higher level of biobased content.
    Therefore, USDA has set the minimum biobased content for this item 
at 89 percent, based on the item with a tested biobased content of 92 
percent. As with other designated items, USDA will continue to gather 
information on this item and, if information justifying 
subcategorization is obtained, will create subcategories within this 
item in a future rulemaking.
Graffiti and Grease Removers
    Comment: One commenter suggested that the Green Seal standard for 
degreasers (GS-34) be mentioned as a relevant environmental standard 
for this item.
    Response: USDA agrees that such information can be useful and will 
add information on the Green Seal standard for degreasers (GS-34) to 
the performance information available on the BioPreferred Web site for 
this designated item.
    Comment: One commenter stated that the minimum biobased content for 
grease and graffiti removers should be 38 percent (not 21 percent) 
based on the data in the background information. The commenter then 
stated that if the lower content levels reflect products used for 
different applications than those with higher content levels, then USDA

[[Page 27951]]

should provide separate content recommendations.
    Response: Since proposal, USDA has obtained biobased content test 
results for several additional products within this item. Also, the 
product with 24 percent biobased content that was used as the basis for 
the proposed minimum biobased content is no longer offered by its 
manufacturer. The biobased content data set for this item now contains 
19 test results, as follows: 37, 38, 44, 52, 53, 55, 58, 60, 61, 61, 
63, 75, 77, 79, 89, 90, 94, 95, and 100. USDA evaluated the available 
product information for this item and set the minimum biobased content 
at 34 percent. Even though there is a wide range of biobased contents 
within this item, USDA was unable to identify any significant break 
points or product groupings within the data. Also, as explained in the 
proposal preamble, graffiti and grease removers are formulated to 
remove a wide variety of paints and other marking materials, as well as 
grease, from many types of surfaces and using several different 
application techniques. For example, some graffiti and grease removers 
are sold as concentrates to be mixed with water, while others are 
designed to be used as purchased; some are designed to be sprayed on 
with power washers, while others are designed to be applied with 
brushes; and some are designed to provide a foaming action, while 
others are not. USDA considered creating subcategories for this item 
based on product performance claims, formulation, and/or application 
techniques but did not have sufficient data to do so at this time. USDA 
will, however, continue to gather and evaluate product information for 
this item and will develop subcategories in a future rulemaking if 
sufficient justification can be obtained. Because of the wide range in 
product characteristics, USDA is proposing to set the minimum biobased 
content at a level that will include all of the products sampled.

Amendments to 7 CFR Part 2902

    USDA is making technical amendments to three sections in subpart B 
to:
     Update the reference to the Web site from the ``USDA Web 
site'' to the ``BioPreferred Web site;''
     Revise the text, as necessary, concerning requesting 
information on the types of materials contained in the product to 
include biobased ingredients; and
     Add a note to refer the user to the potential overlap with 
EPA recovered material content products and where such products are 
designated in the Code of Federal Regulations.
    These technical amendments update these three paragraphs to conform 
to the most recent language being used in subsequently promulgated 
sections under subpart B, including those sections in today's 
rulemaking.

V. Regulatory Information

A. Executive Order 12866: Regulatory Planning and Review

    This action has been determined significant for purposes of 
Executive Order 12866 and, therefore, has been reviewed by the Office 
of Management and Budget. We are not able to quantify the annual 
economic effect associated with this final rule. As discussed in the 
proposed rule, USDA made extensive efforts to obtain information on the 
Federal agencies' usage within the nine designated items, including 
their subcategories. These efforts were largely unsuccessful. Therefore 
attempts to quantify the economic impact of this rule would require 
estimation of the anticipated market penetration of biobased products 
based upon many assumptions. In addition, because agencies have the 
option of not purchasing designated items if costs are 
``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 this rulemaking. This assessment was based primarily on the 
offsetting nature of the program (an increase in biobased products 
purchased with a corresponding decrease in petroleum products 
purchased). Consideration was also given to the fact that agencies may 
choose not to procure designated items due to unreasonable costs.
1. Summary of Impacts
    This rulemaking 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 items to Federal 
agencies and their contractors. However, other businesses and 
manufacturers that supply only non-qualifying products and do not offer 
biobased alternatives may experience a decrease in demand from Federal 
agencies and their contractors. USDA is unable to determine the number 
of businesses, including small businesses, that may be adversely 
affected by this rule. The 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 and costs of biobased products acceptable is unknown, it is 
impossible to quantify the actual economic effect of the rule.
2. Benefits of the Rule
    The designation of these nine items, including their subcategories, 
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; to spur 
development of the industrial base through value-added agricultural 
processing and manufacturing in rural communities; to enhance the 
Nation's energy security by substituting biobased products for products 
derived from imported oil and natural gas; and to substitute products 
with a possibly more benign or beneficial environmental impact, as 
compared to the use of fossil energy-based products. On a national and 
regional level, this rule can result in expanding and strengthening 
markets for biobased materials used in these items.
3. Costs of the Rule
    Like the benefits, the costs of this 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. Procurement 
costs for Federal agencies may rise as they evaluate the availability 
and relative cost of preferred products before making a purchase.

B. Regulatory Flexibility Act (RFA)

    When an agency issues a final rule following a proposed rule, the 
Regulatory Flexibility Act (RFA, 5 U.S.C. 601-612) requires the agency 
to prepare a final regulatory flexibility analysis. 5 U.S.C. 604. 
However, the requirement for a final regulatory flexibility analysis 
does not apply if the head of the agency certifies that the rule will 
not, if promulgated, have a

[[Page 27952]]

significant economic impact on a substantial number of small entities. 
5 U.S.C. 605(b).
    USDA evaluated the potential impacts of its designation of these 
items to determine whether its actions would have a significant impact 
on a substantial number of small entities. Because the Federal 
Procurement of Biobased Products under section 9002 of FSRIA applies 
only to Federal agencies and their contractors, small governmental 
(city, county, etc.) agencies are not affected. Thus, this 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 items for preferred procurement will 
provide additional opportunities for businesses to manufacture and sell 
biobased products to Federal agencies and their contractors. Similar 
opportunities will be provided for entities that supply biobased 
materials to manufacturers. Conversely, 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. However, this rule will not affect existing purchase 
orders and it will not preclude procuring agencies from continuing to 
purchase non-biobased items under certain conditions relating to the 
availability, performance, or cost of biobased items. This rule will 
also not preclude businesses from modifying their product lines to meet 
new specifications or solicitation requirements for these products 
containing biobased materials. Thus, the economic impacts of this rule 
are not expected to be significant.
    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 products within the items and their subcategories 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 affected by this rulemaking is not expected to be 
substantial.
    After considering the economic impacts of this 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 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. 
Technological innovation associated with the use of biobased materials 
can translate into economic growth and increased industry 
competitiveness worldwide, thereby, creating opportunities for small 
entities.

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

    This 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 rule does not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment. Provisions of this 
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 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 the 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 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 rule is 
currently approved under OMB control number 0503-0011.

J. Government Paperwork Elimination Act Compliance

    The Office of Energy Policy and New Uses is committed to compliance 
with the Government Paperwork Elimination Act (GPEA) (44 U.S.C. 3504 
note), 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 GPEA compliance related to this rule, please 
contact Marvin Duncan at (202) 401-0461.

List of Subjects in 7 CFR Part 2902

    Biobased products, Procurement.


0
For the reasons stated in the preamble, the Department of Agriculture 
is amending 7 CFR chapter XXIX as follows:

[[Page 27953]]

CHAPTER XXIX--OFFICE OF ENERGY POLICY AND NEW USES, DEPARTMENT OF 
AGRICULTURE

PART 2902--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL 
PROCUREMENT

0
1. The authority citation for part 2902 continues to read as follows:

    Authority: 7 U.S.C. 8102.

0
2. Amend Sec.  2902.3 by adding paragraph (e) to read as follows:


Sec.  2902.3  Applicability to Federal procurements.

* * * * *
    (e) Exemptions. The following applications are exempt from the 
preferred procurement requirements of this part:
    (1) Military equipment: Products or systems designed or procured 
for combat or combat-related missions.
    (2) Spacecraft systems and launch support equipment.

0
3. Amend Sec.  2902.10 by removing paragraph (e) and revising paragraph 
(d) to read as follows:


Sec.  2902.10  Mobile equipment hydraulic fluids.

* * * * *
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying biobased products that fall under this item may, in 
some cases, overlap with the following EPA-designated recovered content 
product: Re-refined Lubricating Oils. USDA is requesting that 
manufacturers of these qualifying biobased products provide information 
for the BioPreferred Web site of qualifying biobased products about the 
intended uses of the product, information on whether or not the product 
contains petroleum-based ingredients, re-refined oil, and/or any other 
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 lubricating 
oils containing re-refined oil and which product should be afforded the 
preference in purchasing.

    Note to paragraph (d): Mobile equipment hydraulic fluid products 
within this designated item can compete with similar lubricating 
oils containing re-refined oil. Under the Resource Conservation and 
Recovery Act of 1976, section 6002, the U.S. Environmental 
Protection Agency designated lubricating oils containing re-refined 
oil as items for which Federal agencies must give preference in 
their purchasing programs. The designation can be found in the 
Comprehensive Procurement Guideline, 40 CFR 247.11.


0
4. Amend Sec.  2902.11 by revising paragraph (d) to read as follows:


Sec.  2902.11  Roof coatings.

* * * * *
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying biobased products that fall under this item may, in 
some cases, overlap with the following EPA-designated recovered content 
product: Roofing Materials. USDA is requesting that manufacturers of 
these qualifying biobased products provide information for the 
BioPreferred Web site of qualifying biobased products about the 
intended uses of the product, information on whether or not the product 
contains any type of 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 
recovered content roofing materials and which product should be 
afforded the preference in purchasing.

    Note to paragraph (d): Roof coating products within this 
designated item can compete with similar roofing material products. 
Under the Resource Conservation and Recovery Act of 1976, section 
6002, the U.S. Environmental Protection Agency designated roofing 
material containing recycled material as items for which Federal 
agencies must give preference in their purchasing programs. The 
designation can be found in the Comprehensive Procurement Guideline, 
40 CFR 247.12.

Sec.  2902.13  [Amended]

0
5. Amend Sec.  2902.13 by removing paragraph (d).
0
6. Amend Sec.  2902.14 by removing paragraph (e) and revising paragraph 
(d) to read as follows:


Sec.  2902.14  Penetrating lubricants.

* * * * *
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying biobased products that fall under this item may, in 
some cases, overlap with the following EPA-designated recovered content 
product: Re-refined Lubricating Oils. USDA is requesting that 
manufacturers of these qualifying biobased products provide information 
for the BioPreferred Web site of qualifying biobased products about the 
intended uses of the product, information on whether or not the product 
contains petroleum-based ingredients, re-refined oil, and/or any other 
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 lubricating 
oils containing re-refined oil and which product should be afforded the 
preference in purchasing.

    Note to paragraph (d): Penetrating lubricant products within 
this designated item can compete with similar re-refined lubricating 
oil products. Under the Resource Conservation and Recovery Act of 
1976, section 6002, the U.S. Environmental Protection Agency 
designated re-refined lubricating oils containing recycled material 
as items for which Federal agencies must give preference in their 
purchasing programs. The designation can be found in the 
Comprehensive Procurement Guideline, 40 CFR 247.11.


0
7. Add Sec. Sec.  2902.16 through 2902.24 to subpart B to read as 
follows:


Sec.  2902.16  Adhesive and mastic removers.

    (a) Definition. Solvent products formulated for use in removing 
asbestos, carpet, and tile mastics as well as adhesive materials, 
including glue, tape, and gum, from various surface types.
    (b) Minimum biobased content. The preferred procurement product 
must have a biobased content of at least 58 percent, which shall be 
based on the amount of qualifying biobased carbon in the product as a 
percent of the weight (mass) of the total organic carbon in the 
finished product.
    (c) Preference compliance date. No later than May 14, 2009, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased adhesive and mastic 
removers. 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 
adhesive and mastic removers.


Sec.  2902.17  Plastic insulating foam for residential and commercial 
construction.

    (a) Definition. Spray-in-place plastic foam products designed to 
provide a sealed thermal barrier for residential or commercial 
construction applications.
    (b) Minimum biobased content. The preferred procurement product 
must have a biobased content of at least 7 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 May 14, 2009, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased plastic insulating foam 
for residential and commercial

[[Page 27954]]

construction. 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 plastic insulating foam for residential and commercial 
construction.
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying biobased products that fall under this item may, in 
some cases, overlap with the EPA-designated recovered content product: 
Building Insulation. USDA is requesting that manufacturers of these 
qualifying biobased products provide information on the BioPreferred 
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 building 
insulation and which product should be afforded the preference in 
purchasing.

    Note to paragraph (d): Biobased insulating products within this 
designated item can compete with similar insulating products with 
recycled content. Under the Resource Conservation and Recovery Act 
of 1976, section 6002, the U.S. Environmental Protection Agency 
designated building insulation containing recovered materials as 
items for which Federal agencies must give preference in their 
purchasing programs. The designation can be found in the 
Comprehensive Procurement Guideline, 40 CFR 247.12. EPA provides 
recovered materials content recommendations for building insulation 
products in the Recovered Materials Advisory Notice (RMAN) published 
for these products. The RMAN recommendations can be found by 
accessing EPA's Web site http://www.epa.gov/epaoswer/non-hw/procure/products.htm and then clicking on the appropriate product name.

Sec.  2902.18  Hand cleaners and sanitizers.

    (a) Definitions. (1) Hand cleaners. Products formulated for 
personal care use in removing a variety of different soils, greases, 
and similar substances from human hands with or without the use of 
water.
    (2) Hand sanitizers. Products formulated for personal care use in 
removing bacteria from human hands with or without the use of water. 
Personal care products that are formulated for use in removing a 
variety of different soils, greases and similar substances and bacteria 
from human hands with or without the use of water are classified as 
hand sanitizers for the purposes of this rule.
    (b) Minimum biobased content. The minimum biobased content 
requirement for all hand cleaners and/or sanitizers 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 are:
    (1) Hand cleaners--64 percent.
    (2) Hand sanitizers (including hand cleaners and sanitizers)--73 
percent.
    (c) Preference compliance date. No later than May 14, 2009, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased hand cleaners and 
sanitizers. 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 
hand cleaners and sanitizers.


Sec.  2902.19  Composite panels.

    (a) Definitions. (1) Plastic lumber composite panels. Engineered 
products suitable for non-structural outdoor needs such as exterior 
signs, trash can holders, and dimensional letters.
    (2) Acoustical composite panels. Engineered products designed for 
use as structural and sound deadening material suitable for office 
partitions and doors.
    (3) Interior panels. Engineered products designed specifically for 
interior applications and providing a surface that is impact-, scratch-
, and wear-resistant and that does not absorb or retain moisture.
    (4) Structural interior panels. Engineered products designed for 
use in structural construction applications, including cabinetry, 
casework, paneling, and decorative panels.
    (5) Structural wall panels. Engineered products designed for use in 
structural walls, curtain walls, floors and flat roofs in commercial 
buildings.
    (b) Minimum biobased content. The minimum biobased content 
requirement for all composite panels 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 are:
    (1) Plastic lumber composite panels--23 percent.
    (2) Acoustical composite panels--37 percent.
    (3) Interior panels--55 percent.
    (4) Structural interior panels--89 percent.
    (5) Structural wall panels--94 percent.
    (c) Preference compliance date. No later than May 14, 2009, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased composite panels. 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.
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying biobased products that fall under this item may, in 
some cases, overlap with the following EPA-designated recovered content 
products: Laminated Paperboard and Structural Fiberboard; Shower and 
Restroom Dividers; and Signage. USDA is requesting that manufacturers 
of these qualifying biobased products provide information on the 
BioPreferred 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 
laminated paperboard, structural fiberboard, shower and restroom 
dividers, and signage, and which product should be afforded the 
preference in purchasing.

    Note to paragraph (d): Composite panel products within this 
designated item can be made with recycled material. Under the 
Resource Conservation and Recovery Act of 1976, section 6002, the 
U.S. Environmental Protection Agency designated laminated paperboard 
and structural fiberboard, shower and restroom dividers, and signage 
containing recovered materials as items for which Federal agencies 
must give preference in their purchasing programs. The designation 
can be found in the Comprehensive Procurement Guideline, 40 CFR 
247.12. EPA provides recovered materials content recommendations for 
laminated paperboard and structural fiberboard, shower and restroom 
dividers, and signage in the Recovered Materials Advisory Notice 
(RMAN) published for these products. The RMAN recommendations can be 
found by accessing EPA's Web site http://www.epa.gov/epaoswer/non-hw/procure/products.htm and then clicking on the appropriate product 
name.

Sec.  2902.20  Fluid-filled transformers.

    (a) Definition. (1) Synthetic ester-based fluid-filled 
transformers. Electric power transformers that are designed to utilize 
a synthetic ester-based dielectric (non-conducting) fluid to provide 
insulating and cooling properties.

[[Page 27955]]

    (2) Vegetable oil-based fluid-filled transformers. Electric power 
transformers that are designed to utilize a vegetable oil-based 
dielectric (non-conducting) fluid to provide insulating and cooling 
properties.
    (b) Minimum biobased content. The minimum biobased content 
requirement for all fluid-filled transformers 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 are:
    (1) Synthetic ester-based fluid-filled transformers--66 percent.
    (2) Vegetable oil-based fluid-filled transformers--95 percent.
    (c) Preference compliance date. (1) Synthetic ester-based fluid-
filled transformers. Determination of the compliance date for synthetic 
ester-based fluid-filled transformers is deferred until USDA identifies 
two or more manufacturers of synthetic ester-based fluid-filled 
transformers. At that time, USDA will publish a document in the Federal 
Register announcing that Federal agencies have one year from the date 
of publication to give procurement preference to biobased synthetic 
ester-based fluid-filled transformers.
    (2) Vegetable oil-based fluid-filled transformers. No later than 
May 14, 2009, procuring agencies, in accordance with this part, will 
give a procurement preference for qualifying biobased vegetable oil-
based fluid-filled transformers. 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 vegetable oil-based fluid-filled 
transformers.


Sec.  2902.21  Disposable containers.

    (a) Definition. Products designed to be used for temporary storage 
or transportation of materials including, but not limited to, food 
items.
    (b) Minimum biobased content. The preferred procurement product 
must have a biobased content of at least 72 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) Biodegradability. At the time a manufacturer offers a product 
under this item for Federal purchase under the BioPreferred Program, 
the preferred procurement product must be capable of meeting the 
current version of ASTM D6400 if disposed of in a non-marine 
environment, the current version of ASTM D7081 if disposed of in a 
marine environment, or other appropriate and applicable standard for 
biodegradability.
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying biobased products that fall under this item may, in 
some cases, overlap with the EPA-designated recovered content product: 
Paper and Paper Products. USDA is requesting that manufacturers of 
these qualifying biobased products provide information on the 
BioPreferred 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 paper 
and paper products and which product should be afforded the preference 
in purchasing.

    Note to paragraph (d): Disposable containers can include boxes 
and packaging made from paper. Under the Resource Conservation and 
Recovery Act of 1976, section 6002, the U.S. Environmental 
Protection Agency designated paper and paper products containing 
recovered materials as items for which Federal agencies must give 
preference in their purchasing programs. The designation can be 
found in the Comprehensive Procurement Guideline, 40 CFR 247.10. EPA 
provides recovered materials content recommendations for paper and 
paper products in the Recovered Materials Advisory Notice (RMAN) 
published for these products. The RMAN recommendations can be found 
on EPA's Web site http://www.epa.gov/epaoswer/non-hw/procure/products.htm and then clicking on the appropriate product name.

    (e) Preference compliance date. No later than May 14, 2009, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased disposable containers. 
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 
disposable containers.


Sec.  2902.22  Fertilizers.

    (a) Definition. Products formulated or processed to provide 
nutrients for plant growth and/or beneficial bacteria to convert 
nutrients into plant usable forms. Biobased fertilizers, which are 
likely to consist mostly of biobased components, may include both 
biobased and chemical components.

    Note to paragraph (a): Biobased fertilizers, as well as other 
fertilizers, may be made with recycled hazardous waste. Such 
fertilizers need to meet applicable land disposal restriction 
standards for any hazardous constituents they contain, as required 
under 40 CFR 266.20(d).

    (b) Minimum biobased content. The preferred procurement product 
must have a 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 May 14, 2009, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased fertilizers. 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 fertilizers.
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying biobased products that fall under this item may, in 
some cases, overlap with the EPA-designated recovered content product: 
Fertilizer. USDA is requesting that manufacturers of these qualifying 
biobased products provide information on the BioPreferred 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 fertilizer product and 
which product should be afforded the preference in purchasing.

    Note to paragraph (d): Fertilizers within this designated item 
can be made with recycled materials. Under the Resource Conservation 
and Recovery Act of 1976, section 6002, the U.S. Environmental 
Protection Agency designated fertilizers containing recovered 
materials as items for which Federal agencies must give preference 
in their purchasing programs. The designation can be found in the 
Comprehensive Procurement Guideline, 40 CFR 247.15. EPA provides 
recovered materials content recommendations for fertilizers in the 
Recovered Materials Advisory Notice (RMAN) published for these 
products. The RMAN recommendations can be found by accessing EPA's 
Web site http://www.epa.gov/epaoswer/non-hw/procure/products.htm and 
then clicking on the appropriate product name.

Sec.  2902.23  Sorbents.

    (a) Definition. Materials formulated for use in the cleanup and

[[Page 27956]]

bioremediation of oil and chemical spills, the disposal of liquid 
materials, or the prevention of leakage or leaching in maintenance 
applications, shop floors, and fuel storage areas.
    (b) Minimum biobased content. The preferred procurement product 
must have a biobased content of at least 89 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 May 14, 2009, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased sorbents. 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 sorbents.
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying biobased products that fall under this item may, in 
some cases, overlap with the EPA-designated recovered content product: 
Sorbents. USDA is requesting that manufacturers of these qualifying 
biobased products provide information on the BioPreferred 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 sorbents and which 
product should be afforded the preference in purchasing.

    Note to paragraph (d): Sorbents within this designated item can 
be made with recycled materials. Under the Resource Conservation and 
Recovery Act of 1976, section 6002, the U.S. Environmental 
Protection Agency designated sorbents containing recovered materials 
as items for which Federal agencies must give preference in their 
purchasing programs. The designation can be found in the 
Comprehensive Procurement Guideline, 40 CFR 247.17. EPA provides 
recovered materials content recommendations for sorbents in the 
Recovered Materials Advisory Notice (RMAN) published for these 
products. The RMAN recommendations can be found by accessing EPA's 
Web site http://www.epa.gov/epaoswer/non-hw/procure/products.htm and 
then clicking on the appropriate product name.

Sec.  2902.24  Graffiti and grease removers.

    (a) Definition. Industrial solvent products formulated to remove 
automotive, industrial, or kitchen soils and oils, including grease, 
paint, and other coatings, from hard surfaces.
    (b) Minimum biobased content. The preferred procurement product 
must have a biobased content of at least 34 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. If the finished product is to be diluted before use, 
the biobased content of the remover must be determined before dilution.
    (c) Preference compliance date. No later than May 14, 2009, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying graffiti and grease removers. 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 graffiti and 
grease removers.

    Dated: May 2, 2008.
Harry Baumes,
Associate Director, Office of Energy Policy and New Uses, U.S. 
Department of Agriculture.
 [FR Doc. E8-10107 Filed 5-13-08; 8:45 am]
BILLING CODE 3410-GL-P