[Federal Register Volume 75, Number 225 (Tuesday, November 23, 2010)]
[Proposed Rules]
[Pages 71491-71512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29191]



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Part II





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; Proposed Rule

Federal Register / Vol. 75 , No. 225 / Tuesday, November 23, 2010 / 
Proposed Rules

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DEPARTMENT OF AGRICULTURE

Office of Energy Policy and New Uses

7 CFR Part 2902

RIN 0503-AA36


Designation of Biobased Items for Federal Procurement

AGENCY: Departmental Management, USDA.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to 
amend the Guidelines for Designating Biobased Products for Federal 
Procurement (Guidelines) to add 14 sections that will designate the 
following items within which biobased products would be afforded 
Federal procurement preference: Animal repellents; bath products; 
bioremediation materials; compost activators and accelerators; concrete 
and asphalt cleaners; cuts, burns, and abrasions ointments; dishwashing 
products; erosion control materials; floor cleaners and protectors; 
hair care products; interior paints and coatings; oven and grill 
cleaners; slide way lubricants; and thermal shipping containers. USDA 
is also proposing minimum biobased contents for each of these items.

DATES: USDA will accept public comments on this proposed rule until 
January 24, 2011.

ADDRESSES: You may submit comments by any of the following methods. All 
submissions received must include the agency name and Regulatory 
Information Number (RIN). The RIN for this rulemaking is 0503-AA36. 
Also, please identify submittals as pertaining to the ``Proposed 
Designation of Items.''
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. Direct your comments 
to Docket ID No. OPPM-2010-0002.
     E-mail: [email protected]. Include RIN number 0503-
AA36 and ``Proposed Designation of Items'' on the subject line. Please 
include your name and address in your message.
     Mail/commercial/hand delivery: Mail or deliver your 
comments to: Ron Buckhalt, USDA, Office of Procurement and Property 
Management, Room 361, Reporters Building, 300 7th St., SW., Washington, 
DC 20024.
     Persons with disabilities who require alternative means 
for communication for regulatory information (braille, large print, 
audiotape, etc.) should contact the USDA TARGET Center at (202) 720-
2600 (voice) and (202) 690-0942 (TTY).

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

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

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

I. Authority

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

II. Background

    Section 9002 provides for the preferred procurement of biobased 
products by Federal procuring agencies and is referred to hereafter in 
this Federal Register notice as the ``preferred procurement program.'' 
The definition of ``procuring agency'' in section 9002 includes both 
Federal agencies and ``a person that is a party to a contract with any 
Federal agency, with respect to work performed under such a contract.'' 
Thus, Federal contractors, as well as Federal agencies, are expressly 
subject to the procurement preference provisions of section 9002.
    The term ``item'' is used in the designation process to mean a 
generic grouping of specific products that perform a similar function, 
such as the various brands of crankcase oils or interior paints. Once 
USDA designates an item, procuring agencies are required generally to 
purchase biobased products within these designated items where the 
purchase price of the procurement item exceeds $10,000 or where the 
quantity of such items or the functionally equivalent items purchased 
over the preceding fiscal year equaled $10,000 or more. Procuring 
agencies must procure biobased products within each designated item 
unless they determine that products within a designated item are not 
reasonably available within a reasonable period of time, fail to meet 
the reasonable performance standards of the procuring agencies, or are 
available only at an unreasonable price. As stated in 7 CFR Part 2902--
``Guidelines for Designating Biobased Products for Federal 
Procurement'' (Guidelines), biobased products that are merely 
incidental to Federal funding are excluded from the preferred 
procurement program; that is, the requirements to purchase biobased 
products do not apply to such purchases if they are unrelated to or 
incidental to the purpose of the Federal contract. In implementing the 
preferred procurement program for biobased products, procuring agencies 
should follow their procurement rules and Office of Federal Procurement 
Policy guidance on buying non-biobased products when biobased products 
exist and should document exceptions taken for price, performance, and 
availability.
    USDA recognizes that the performance needs for a given application 
are important criteria in making procurement decisions. USDA is not 
requiring procuring agencies to limit their choices to biobased 
products that fall under the items for designation in this proposed 
rule. Rather, the effect of the designation of the items is to require 
procuring agencies to determine their performance needs, determine 
whether there are qualified biobased products that fall under the 
designated items that meet the reasonable performance standards for 
those needs, and purchase such qualified biobased products to the 
maximum extent practicable as required by section 9002.
    Section 9002(a)(3)(B) requires USDA to provide information to 
procuring agencies on the availability, relative price, performance, 
and environmental and public health benefits of such items

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and to recommend, where appropriate, the minimum level of biobased 
content to be contained in the procured products.
    Subcategorization. Most of the items USDA is considering for 
designation for preferred procurement cover a wide range of products. 
For some items, there are subgroups of products within the item that 
meet different requirements, uses and/or different performance 
specifications. For example, within the item category ``thermal 
shipping containers,'' some containers are designed as durable products 
that can be re-used over long periods of time. Such containers might be 
used, for example, in the trucking industry when trucks are dedicated 
to shipping the same types of products on a regular basis. Other 
thermal shipping containers may be non-durable, or intended for only a 
one-time use. These containers might be used to ship small quantities 
of perishable fruits or vegetables to consumers who would then dispose 
of the container. Where such subgroups exist, USDA intends to create 
subcategories. Thus, for example, for the item ``thermal shipping 
containers,'' USDA has determined it is reasonable to create a 
``durable thermal shipping container'' subcategory and a ``non-durable 
thermal shipping container'' subcategory. Where structural integrity 
may be a key characteristic of a durable thermal shipping container, 
disposal concerns are a key characteristic of a non-durable thermal 
shipping container. In sum, USDA looks at the products within each item 
category to evaluate whether there are subgroups of products within the 
item that have different characteristics or that meet different 
performance specifications and, where USDA finds these types of 
differences, it intends to create subcategories with the minimum 
biobased content based on the tested products within the subcategory.
    For some items, however, USDA may not have sufficient information 
at the time of proposal to create subcategories within an item. For 
example, USDA may know that there are different performance 
specifications that thermal shipping containers are required to meet, 
but it may have information on only one type of container. 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. Once USDA has received 
sufficient additional information to justify the designation of a 
subcategory, the subcategory will be designated through the proposed 
and final rulemaking process.
    Within today's proposed rule, USDA is proposing to subcategorize 
two of the items being proposed for designation. The first item is hair 
care products and the proposed subcategories are shampoo products and 
conditioner products. The second item is thermal shipping containers 
and the proposed subcategories are durable and non-durable thermal 
shipping containers.
    Minimum Biobased Contents. The minimum biobased contents being 
proposed with today's rule are based on products for which USDA has 
biobased content test data. Because the submission of product samples 
for biobased content testing is on a strictly voluntary basis, USDA was 
able to obtain samples only from those manufacturers who volunteered to 
invest the resources required to submit the samples.
    In addition to considering the biobased content test data for each 
item, USDA also considers other factors including product performance 
information. USDA evaluates this information to determine whether some 
products that may have a lower biobased content also have unique 
performance or applicability attributes that would justify setting the 
minimum biobased content at a level that would include these products. 
For example, a lubricant product that has a lower biobased content than 
others within an item but is formulated to perform over a wider 
temperature range than the other products may be more desirable to 
Federal agencies. Thus, it would be beneficial to set the minimum 
biobased content for the item at a level that would include the product 
with superior performance features.
    USDA also considers the overall range of the tested biobased 
contents within an item, groupings of similar values, and breaks 
(significant gaps between two groups of values) in the biobased content 
test data array. For example, the biobased contents of six tested 
products within an item being proposed for designation today are 22, 
28, 82, 98, 100, and 100 percent. Because this is a very wide range, 
and because there is a significant gap in the data between the 28 
percent biobased product and the 82 percent biobased product, USDA 
reviewed the product literature to determine whether subcategories 
could be created within this item. USDA found that the available 
product information did not justify subcategorization. Further, USDA 
did not find any performance claims that would justify setting the 
minimum biobased content based on the 22 or 28 percent biobased content 
products. Thus, USDA is proposing to set the minimum biobased content 
for this item based on the product with a tested biobased content of 82 
percent. USDA believes that this evaluation process allows it to 
establish minimum biobased contents based on a broad set of factors to 
assist the Federal procurement community in its decisions to purchase 
biobased products.
    USDA makes every effort to obtain biobased content test data on 
multiple products within each item. For most designated items, USDA has 
biobased content test data on more than one product within a designated 
item. However, in some cases, USDA has been able to obtain biobased 
content data for only a single product within a designated item. As 
USDA obtains additional data on the biobased contents for products 
within these designated items and their subcategories, USDA will 
evaluate whether the minimum biobased content for a designated item or 
subcategory will be revised.
    USDA anticipates that the minimum biobased content of an item that 
is based on a single product is more likely to change as additional 
products within that designated item are identified and tested. In 
today's proposed rule, the minimum biobased contents for both 
subcategories under the thermal shipping containers designated item are 
based on a single tested product. Given that only three biobased 
products have been identified in this item, and only one manufacturer 
of products within each subcategory supplied a sample for testing, USDA 
believes it is reasonable to set minimum biobased contents for these 
subcategories based on the single data point for each subcategory.
    Where USDA receives additional biobased content test data for 
products within these proposed items and subcategories during the 
public comment period, USDA will take that information into 
consideration when establishing the minimum biobased content when the 
items and subcategories are designated in the final rulemaking.
    Overlap with EPA's Comprehensive Procurement Guideline program for 
recovered content products under the Resource Conservation and Recovery 
Act (RCRA) Section 6002. Some of the products that are biobased items 
designated for preferred procurement under the preferred procurement 
program may also be items the Environmental Protection Agency (EPA) has 
designated under the EPA's Comprehensive Procurement Guideline (CPG) 
for products containing recovered materials. In situations where it 
believes

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there may be an overlap, USDA is asking manufacturers of qualifying 
biobased products to make additional product and performance 
information available to Federal agencies conducting market research to 
assist them in determining whether the biobased products in question 
are, or are not, the same products for the same uses as the recovered 
content products. Manufacturers are asked to provide information 
highlighting the sustainable features of their biobased products and to 
indicate the various suggested uses of their product and the 
performance standards against which a particular product has been 
tested. In addition, depending on the type of biobased product, 
manufacturers are being asked to provide other types of information, 
such as whether the product contains fossil energy-based components 
(including petroleum, coal, and natural gas) and whether the product 
contains recovered materials. Federal agencies also may ask 
manufacturers for information on a product's biobased content and its 
profile against environmental and health measures and life-cycle costs 
(the ASTM Standard D7075, ``Standard Practice for Evaluating and 
Reporting Environmental Performance of Biobased Products,'' or the 
Building for Environmental and Economic Sustainability (BEES) analysis 
for evaluating and reporting on environmental performance of biobased 
products). Federal agencies may then use this information to make 
purchasing decisions based on the sustainability features of the 
products. Detailed information on ASTM Standard D7075, and other ASTM 
standards, can be found on ASTM's Web site at http://www.astm.org. 
Information on the BEES analytical tool can be found on the Web site 
http://www.bfrl.nist.gov/oae/software/bees.html.
    Section 6002 of RCRA requires a procuring agency procuring an item 
designated by EPA generally to procure such an item composed of the 
highest percentage of recovered materials content practicable. However, 
a procuring agency may decide not to procure such an item based on a 
determination that the item fails to meet the reasonable performance 
standards or specifications of the procuring agency. An item with 
recovered materials content may not meet reasonable performance 
standards or specifications, for example, if the use of the item with 
recovered materials content would jeopardize the intended end use of 
the item.
    Where a biobased item is used for the same purposes and to meet the 
same Federal agency performance requirements as an EPA-designated 
recovered content product, the Federal agency must purchase the 
recovered content product. For example, if a biobased hydraulic fluid 
is to be used as a fluid in hydraulic systems and because ``lubricating 
oils containing re-refined oil'' has already been designated by EPA for 
that purpose, then the Federal agency must purchase the EPA-designated 
recovered content product, ``lubricating oils containing re-refined 
oil.'' If, on the other hand, that biobased hydraulic fluid is to be 
used to address a Federal agency's certain environmental or health 
performance requirements that the EPA-designated recovered content 
product would not meet, then the biobased product should be given 
preference, subject to reasonable price, availability, and performance 
considerations.
    This proposed rule designates two items for preferred procurement 
for which there may be overlap with an EPA-designated recovered content 
product. The first item is interior paints and coatings, which may 
overlap with the EPA-designated recovered content products 
``reprocessed latex paints'' and ``consolidated latex paints.'' The 
second item is slide way lubricants, which, depending on how they are 
used, may overlap with the EPA-designated recovered content product 
``re-refined lubricating oils.'' EPA provides recovered materials 
content recommendations for this recovered content products in a 
Recovered Materials Advisory Notice (RMAN I). The RMAN recommendations 
for this CPG product can be found by accessing EPA's Web site http://www.epa.gov/epaoswer/non-hw/procure/products.htm and then clicking on 
the appropriate product name.
    Federal Government Purchase of Sustainable Products. The Federal 
government's sustainable purchasing program includes the following 
three statutory preference programs for designated products: the 
BioPreferred Program, the Environmental Protection Agency's 
Comprehensive Procurement Guideline for products containing recovered 
materials, and the Environmentally Preferable Purchasing program. The 
Office of the Federal Environmental Executive (OFEE) and the Office of 
Management and Budget (OMB) encourage agencies to implement these 
components comprehensively when purchasing products and services.
    Procuring agencies should note that not all biobased products are 
``environmentally preferable.'' For example, unless cleaning products 
contain no or reduced levels of metals and toxic and hazardous 
constituents, they can be harmful to aquatic life, the environment, 
and/or workers. Household cleaning products that are formulated to be 
disinfectants are required, under the Federal Insecticide, Fungicide 
and Rodenticide Act (FIFRA), to be registered with EPA and must meet 
specific labeling requirements warning of the potential risks 
associated with misuse of such products. When purchasing 
environmentally preferable cleaning products, many Federal agencies 
specify that products must meet Green Seal standards for institutional 
cleaning products or that the products have been reformulated in 
accordance with recommendations from the EPA's Design for the 
Environment (DfE) program. Both the Green Seal standards and the DfE 
program identify chemicals of concern in cleaning products. These 
include zinc and other metals, formaldehyde, ammonia, alkyl phenol 
ethoxylates, ethylene glycol, and volatile organic compounds. In 
addition, both require that cleaning products have neutral or less 
caustic pH.
    In contrast, some biobased products may be more environmentally 
preferable than some products that meet Green Seal standards for 
institutional cleaning products or that have been reformulated in 
accordance with EPA's DfE program. To fully compare products, one must 
look at the ``cradle-to-grave'' impacts of the manufacture, use, and 
disposal of products. Biobased products that will be available for 
preferred procurement under this program have been assessed as to their 
``cradle-to-grave'' impacts.
    One consideration of a product's impact on the environment is 
whether (and to what degree) it introduces new fossil carbon into the 
atmosphere. Fossil carbon is derived from non-renewable sources 
(typically fossil fuels such as coal and oil), whereas renewable 
biomass carbon is derived from renewable sources (biomass). Qualifying 
biobased products offer the user the opportunity to manage the carbon 
cycle and reduce the introduction of new fossil carbon into the 
atmosphere.
    Manufacturers of qualifying biobased products designated under the 
preferred procurement program will be able to provide, at the request 
of Federal agencies, factual information on environmental and human 
health effects of their products, including the results of the ASTM 
D7075, or the comparable BEES analysis which examines 12 different 
environmental parameters, including human health. Therefore, USDA 
encourages Federal procurement agencies to consider that USDA has 
already examined all available

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information on the environmental and human health effects of 
biopreferred products, when making their purchasing decisions.
    Other Preferred Procurement Programs. Federal procurement officials 
should also note that biobased products may be available for purchase 
by Federal agencies through the AbilityOne Program (formerly known as 
the Javits-Wagner-O'Day (JWOD) program). Under this program, members of 
organizations including the National Industries for the Blind (NIB) and 
the National Institute for the Severely Handicapped (NISH) offer 
products and services for preferred procurement by Federal agencies. A 
search of the AbilityOne Program's online catalog (http://www.abilityone.gov) indicated that four of the items being proposed 
today (concrete and asphalt cleaners, dishwashing detergent, floor 
cleaners and protectors, and hair care products) are available through 
the AbilityOne Program. While there is no specific product within these 
items identified in the AbilityOne online catalog as being a biobased 
product, it is possible that such biobased products are available or 
will be available in the future. Also, because additional categories of 
products are frequently added to the AbilityOne Program, it is possible 
that biobased products within other items being proposed for 
designation today may be available through the AbilityOne Program in 
the future. Procurement of biobased products through the AbilityOne 
Program would further the objectives of both the AbilityOne Program and 
the preferred procurement program.
    Outreach. To augment its own research, USDA consults with industry 
and Federal stakeholders to the preferred procurement program during 
the development of the rulemaking packages for the designation of 
items. USDA consults with stakeholders to gather information used in 
determining the order of item designation and in identifying: 
Manufacturers producing and marketing products that fall within an item 
proposed for designation; performance standards used by Federal 
agencies evaluating products to be procured; and warranty information 
used by manufacturers of end user equipment and other products with 
regard to biobased products.
    Future Designations. In making future designations, USDA will 
continue to conduct market searches to identify manufacturers of 
biobased products within items. USDA will then contact the identified 
manufacturers to solicit samples of their products for voluntary 
submission for biobased content testing. Based on these results, USDA 
will then propose new items for designation for preferred procurement.
    In the preamble to the first six items designated for preferred 
procurement (71 FR 13686, March 16, 2006), USDA stated that it planned 
to identify approximately 10 items in each future rulemaking. In an 
effort to finalize the designation of more items in a shorter time 
period, USDA now plans to increase the number of items in each 
rulemaking, whenever possible. Thus, today's proposed rulemaking would 
designate 14 items for preferred procurement.
    USDA has developed a preliminary list of items for future 
designation and has posted this preliminary list on the BioPreferred 
Web site. While this list presents an initial prioritization of items 
for designation, USDA cannot identify with certainty which items will 
be presented in each of the future rulemakings. In response to comments 
from other Federal agencies, USDA intends to give increased priority to 
those items that contain the highest biobased content. In addition, as 
the program matures, manufacturers of biobased products within some 
industry segments have become more responsive to USDA's requests for 
technical information than those in other segments. Thus, items with 
high biobased content and for which sufficient technical information 
can be obtained quickly may be added or moved up on the prioritization 
list. USDA intends to update the list of items for future designation 
on the Biopreferred Web site every six months, or more often if 
significant changes are made to the list.

III. Summary of Today's Proposed Rule

    USDA is proposing to designate the following items and 
subcategories for preferred procurement: Animal repellents; bath 
products; bioremediation materials; compost activators and 
accelerators; concrete and asphalt cleaners; cuts, burns, and abrasions 
ointments; dishwashing products; erosion control materials; floor 
cleaners and protectors; hair care products, including shampoos and 
conditioners as subcategories; interior paints and coatings; oven and 
grill cleaners; slide way lubricants; and thermal shipping containers, 
including durable and non-durable thermal shipping containers as 
subcategories. USDA is also proposing minimum biobased content for each 
of these items and subcategories (see Section IV.C). Lastly, except for 
thermal shipping containers, USDA is proposing a date by which Federal 
agencies must incorporate these designated items into their procurement 
specifications (see Section IV.D). USDA is proposing to defer the 
preference compliance date for biobased thermal shipping containers 
until two or more manufacturers of these containers have been 
identified.
    In today's proposed rule, USDA is providing information on its 
findings as to the availability, economic and technical feasibility, 
environmental and public health benefits, and life-cycle costs for each 
of the designated items. Information on the availability, relative 
price, performance, and environmental and public health benefits of 
individual products within each of these items is not presented in this 
notice. Further, USDA has reached an understanding with manufacturers 
not to publish their names in conjunction with specific product data 
published in the Federal Register when designating items. This 
understanding was reached to encourage manufacturers to submit products 
for testing to support the designation of an item. Once an item has 
been designated, USDA will encourage the manufacturers and vendors of 
products within the designated item to voluntarily make their names and 
other contact information available for the BioPreferred Web site.
    Warranties. Some of the items being proposed for designation today 
may affect original equipment manufacturers' (OEMs) warranties for 
equipment in which the items are used. For example, the manufacturer of 
a piece of equipment that requires lubrication typically includes a 
list of recommended lubricants in the owner/operator's manual that 
accompanies the equipment when purchased. If the purchaser of the 
equipment uses a lubricant (including a biobased lubricant) that is not 
among the lubricants recommended by the equipment manufacturer, the 
manufacturer may cite that as a reason not to honor the warranty on the 
equipment. At this time, USDA does not have information available as to 
the extent that OEMs have included, or will include, biobased products 
among their recommended lubricants (or other similar operating 
components). This does not necessarily mean that use of biobased 
products will void warranties, only that USDA does not currently have 
such information. USDA is requesting comments and information on this 
topic, but cannot be held responsible if damage were to occur. USDA 
encourages manufacturers of biobased products to test their products 
against all relevant standards, including those that affect warranties, 
and to work with OEMs to ensure that biobased products

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are accepted and recommended for use. Whenever manufacturers of 
biobased products find that existing performance standards for 
warranties are not relevant or appropriate for biobased products, USDA 
is willing to assist them in working with the appropriate OEMs to 
develop tests that are relevant and appropriate for the end uses in 
which biobased products are intended. In addition to outreach to 
biobased product manufacturers and Federal agencies, USDA will, as time 
and resources allow, work with OEMs on addressing any effect the use of 
biobased products may have on their warranties. If, in spite of these 
efforts, there is insufficient information regarding the use of a 
biobased product and its effect on warranties, the procurement agent 
would not be required to buy such a product. As information is 
available on warranties, USDA will make such information available on 
the BioPreferred Web site. Updates to the BioPreferred Web site will 
occur whenever new information is submitted.
    Additional Information. USDA is working with manufacturers and 
vendors to make all relevant product and manufacturer contact 
information available on the BioPreferred Web site before a procuring 
agency asks for it, in order to make the preferred procurement program 
more efficient. Steps USDA has implemented, or will implement, include: 
Making direct contact with submitting companies through e-mail and 
phone conversations to encourage completion of product listing; 
coordinating outreach efforts with intermediate material producers to 
encourage participation of their customer base; conducting targeted 
outreach with industry and commodity groups to educate stakeholders on 
the importance of providing complete product information; participating 
in industry conferences and meetings to educate companies on program 
benefits and requirements; and communicating the potential for expanded 
markets beyond the Federal government, to include State and local 
governments, as well as the general public markets. Section V provides 
instructions to agencies on how to obtain this information on products 
within these items through the following Web site: http://www.biopreferred.gov.
    Comments. USDA invites comment on the proposed designation of these 
items and subcategories, including the definition, proposed minimum 
biobased content, and any of the relevant analyses performed during the 
selection of these items. In addition, USDA invites comments and 
information in the following areas:
    1. Two of the items being proposed for designation (interior paints 
and coatings and slide way lubricants) may overlap with products 
designated under EPA's Comprehensive Procurement Guideline for products 
containing recovered material. To help procuring agencies in making 
their purchasing decisions between biobased products within the 
proposed designated items that overlap with products containing 
recovered material, USDA is requesting product-specific information on 
unique performance attributes, environmental and human health effects, 
disposal costs, and other attributes that would distinguish biobased 
products from products containing recovered material as well as non-
biobased products.
    2. We have attempted to identify relevant and appropriate 
performance standards and other relevant measures of performance for 
each of the proposed items. If you know of other such standards or 
relevant measures of performance for any of the proposed items, USDA 
requests that you submit information identifying such standards and 
measures, including their name (and other identifying information as 
necessary), identifying who is using the standard/measure, and 
describing the circumstances under which the product is being used.
    3. Many biobased products within the items being proposed for 
designation will have positive environmental and human health 
attributes. USDA is seeking comments on such attributes in order to 
provide additional information on the BioPreferred Web site. This 
information will then be available to Federal procuring agencies and 
will assist them in making informed sustainable procurement decisions. 
When possible, please provide appropriate documentation to support the 
environmental and human health attributes you describe.
    4. Several items (e.g., animal repellents, bath products, concrete 
and asphalt cleaners, dishwashing products, floor cleaners and 
protectors, oven and grill cleaners, and hair care products) have wide 
ranges of tested biobased contents. For the reasons discussed later in 
this preamble, USDA is proposing a minimum biobased content that would 
allow many of the tested products to be eligible for preferred 
procurement. USDA welcomes comments on the appropriateness of the 
proposed minimum biobased contents for these items and whether there 
are potential subcategories within the items that should be considered.
    5. As discussed above, the effect that the use of biobased products 
may have on original equipment manufacturers' warranties is uncertain. 
USDA requests comments and supporting information on any aspect of this 
issue.
    6. Today's proposed rule is expected to have both positive and 
negative impacts on individual businesses, including small businesses. 
USDA anticipates that the biobased preferred procurement program will 
provide additional opportunities for businesses and manufacturers to 
begin supplying products under the proposed 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. Because USDA has been unable to 
determine the number of businesses, including small businesses, that 
may be adversely affected by today's proposed rule, USDA requests 
comment on how many small entities may be affected by this rule and on 
the nature and extent of that effect.
    All comments should be submitted as directed in the ADDRESSES 
section above.
    To assist you in developing your comments, the background 
information used in proposing these items for designation has been 
assembled in a technical support document (TSD), ``Technical Support 
for Proposed Rule--Round 7 Designated Items,'' which is available on 
the BioPreferred Web site. The TSD can be located by clicking on the 
Proposed and Final Regulations link on the right side of the 
BioPreferred Web site's home page (http://www.biopreferred.gov). At the 
next screen, click on the Supporting Documentation link under Round 7 
Designation under the Proposed Regulations section. This will bring you 
to the link to the TSD.

IV. Designation of Items, Minimum Biobased Contents, and Time Frame

A. Background

    In order to designate items for preferred procurement, section 9002 
requires USDA to consider: (1) The availability of items and (2) the 
economic and technological feasibility of using the items, including 
the life-cycle costs of the items.
    In considering an item's availability, USDA uses several sources of 
information. USDA performs Internet searches, contacts trade 
associations (such as the Bio organization) and commodity groups, 
searches the Thomas Register (a database, used as a

[[Page 71497]]

resource for finding companies and products manufactured in North 
America, containing over 173,000 entries), and contacts manufacturers 
and vendors to identify those manufacturers and vendors with biobased 
products within items being considered for designation. USDA uses the 
results of these same searches to determine if an item is generally 
available.
    In considering an item's economic and technological feasibility, 
USDA examines evidence pointing to the general commercial use of an 
item and its life-cycle cost and performance characteristics. This 
information is obtained from the sources used to assess an item's 
availability. Commercial use, in turn, is evidenced by any manufacturer 
and vendor information on the availability, relative prices, and 
performance of their products as well as by evidence of an item being 
purchased by a procuring agency or other entity, where available. In 
sum, USDA considers an item economically and technologically feasible 
for purposes of designation if products within that item are being 
offered and used in the marketplace.
    In considering the life-cycle costs of items proposed for 
designation, USDA has obtained the necessary input information (on a 
voluntary basis) from manufacturers of biobased products and has used 
the BEES analytical tool to analyze individual products within each 
proposed item. The BEES analytical tool measures the environmental 
performance and the economic performance of a product. The 
environmental performance scores, impact values, and economic 
performance results for products within the Round 7 designated items 
analyzed using the BEES analytical tool can be found in ``Technical 
Support for Proposed Rule--Round 7 Designated Items,'' located on the 
BioPreferred Web site (http://www.biopreferred.gov).
    In addition to the BEES analytical tool, manufacturers wishing to 
make similar life-cycle information available may choose to use the 
ASTM Standard D7075 analysis. The ASTM Standard D7075 product analysis 
includes information on environmental performance, human health 
impacts, and economic performance. USDA is working with manufacturers 
and vendors to make this information available on the BioPreferred Web 
site in order to make the preferred procurement program more efficient.
    As discussed earlier, USDA has also implemented, or will implement, 
several other steps intended to educate the manufacturers and other 
stakeholders on the benefits of this program and the need to make this 
information, including manufacturer contact information, available on 
the BioPreferred Web site in order to then make it available to 
procurement officials. Additional information on specific products 
within the items proposed for designation may also be obtained directly 
from the manufacturers of the products. USDA has also provided a link 
on the BioPreferred Web site to the Defense Standardization Program, 
including the Defense Logistics Agency (DLA), and to the General 
Services Administration (GSA)-related standards lists used as guidance 
when procuring products. These lists can be accessed through the 
``Selling to the Federal Government'' link on the BioPreferred Web 
site.
    USDA recognizes that information related to the functional 
performance of biobased products is a primary factor in making the 
decision to purchase these products. USDA is gathering information on 
industry standard test methods and performance standards that 
manufacturers are using to evaluate the functional performance of their 
products. (Test methods are procedures used to provide information on a 
certain attribute of a product. For example, a test method might 
determine how many bacteria are killed. Performance standards identify 
the level at which a product must perform in order for it to be 
``acceptable'' to the entity that set the performance standard. For 
example, a performance standard might require that a certain percentage 
(e.g., 95 percent) of the bacteria must be killed through the use of 
the product.) The primary sources of information on these test methods 
and performance standards are manufacturers of biobased products within 
these items. Additional test methods and performance standards are also 
identified during meetings of the Interagency council and during the 
review process for each proposed rule. We have listed, under the 
detailed discussion of each item proposed for designation (presented in 
Section IV.B), the functional performance test methods, performance 
standards, product certifications, and other measures of performance 
associated with the functional aspects of products identified during 
the development of this Federal Register notice for these items.
    While this process identifies many of the relevant test methods and 
standards, USDA recognizes that those identified herein do not 
represent all of the methods and standards that may be applicable for a 
designated item or for any individual product within the designated 
item. As noted earlier in this preamble, USDA is requesting 
identification of other relevant performance standards and measures of 
performance. As the program becomes fully implemented, these and other 
additional relevant performance standards will be available on the 
BioPreferred Web site.
    In gathering information relevant to the analyses discussed above 
for this proposed rule, USDA has made extensive efforts to contact and 
request information and product samples within the items proposed for 
designation. For product information, USDA has attempted to contact 
representatives of the manufacturers of biobased products identified by 
the preferred procurement program. For product samples on which to 
conduct biobased content tests and BEES analysis, USDA has attempted to 
obtain samples and BEES input information from at least five different 
suppliers of products within each item in today's proposed rule. 
However, because the submission of information and samples is on a 
strictly voluntary basis, USDA was able to obtain information and 
samples only from those manufacturers who volunteered to invest the 
resources required to gather and submit the information and samples. 
The data presented are all the data that were submitted in response to 
USDA requests for information from manufacturers of the products within 
the items proposed for designation. While USDA would prefer to have 
complete data on the full range of products within each item, the data 
that were submitted support designation of the items in today's 
proposed rule.
    To propose an item for designation, USDA must have sufficient 
information on a sufficient number of products within an item to be 
able to assess its availability and its economic and technological 
feasibility, including its life-cycle costs. For some items, there may 
be numerous products available. For other items, there may be very few 
products currently available. Given the infancy of the market for some 
items, it is expected that single-product items will be identified. 
Further, given that the intent of section 9002 is largely to stimulate 
the production of new biobased products and to energize emerging 
markets for those products, USDA has determined it is appropriate to 
designate an item or subcategory for preferred procurement even when 
there is only a single product with a single supplier, though this will 
generally occur once other items with high biobased content and two or 
more producers are first designated. However, USDA has also determined 
that in such situations it is appropriate to defer the

[[Page 71498]]

effective preferred procurement date until such time that more than one 
supplier is identified in order to provide choice to procuring 
agencies. Similarly, the documented availability, benefits, and life-
cycle costs of even a very small percentage of all products that may 
exist within an item are also considered sufficient to support 
designation.

B. Items Proposed for Designation

    USDA uses a model (as summarized below) to identify and prioritize 
items for designation. Through this model, USDA has identified over 100 
items for potential designation under the preferred procurement 
program. A list of these items and information on the model can be 
accessed on the BioPreferred Web site at http://www.biopreferred.gov.
    In general, items are developed and prioritized for designation by 
evaluating them against program criteria established by USDA and by 
gathering information from other government agencies, private industry 
groups, and manufacturers. These evaluations begin by looking at the 
cost, performance, and availability of products within each item. USDA 
then considers the following points:
     Are there manufacturers interested in providing the 
necessary test information on products within a particular item?
     Are there a number of manufacturers producing biobased 
products in this item?
     Are there products available in this item?
     What level of difficulty is expected when designating this 
item?
     Is there Federal demand for the product?
     Are Federal procurement personnel looking for biobased 
products?
     Will an item create a high demand for biobased feed stock?
     Does manufacturing of products within this item increase 
potential for rural development?
    After completing this evaluation, USDA prioritizes the list of 
items for designation. USDA then gathers information on products within 
the highest priority items and, as sufficient information becomes 
available for a group of items, a new rulemaking package is developed 
to designate the items within that group. USDA points out that the list 
of items may change, with items being added or dropped, and that the 
order in which items are proposed for designation is likely to change 
because the information necessary to designate an item may take more 
time to obtain than an item lower on the list.
    In today's proposed rule, USDA is proposing to designate the 
following items and subcategories for the preferred procurement 
program: Animal repellents; bath products; bioremediation materials; 
compost activators and accelerators; concrete and asphalt cleaners; 
cuts, burns, and abrasions ointments; dishwashing products; erosion 
control materials; floor cleaners and protectors; hair care products, 
including shampoos and conditioners as subcategories; interior paints 
and coatings; oven and grill cleaners; slide way lubricants; and 
thermal shipping containers, including durable and non-durable thermal 
shipping containers as subcategories. USDA has determined that each of 
these items meets the necessary statutory requirements--namely, that 
they are being produced with biobased products and that their 
procurement by procuring agencies will carry out the following 
objectives of section 9002:
     To increase demand for biobased products, which would in 
turn increase demand for agricultural commodities that can serve as 
feedstocks for the production of biobased products.
     To spur development of the industrial base through value-
added agricultural processing and manufacturing in rural communities; 
and
     To enhance the Nation's energy security by substituting 
biobased products for products derived from imported oil and natural 
gas.
    Further, USDA has sufficient information on these items to 
determine their availability and to conduct the requisite analyses to 
determine their biobased content and their economic and technological 
feasibility, including life-cycle costs.
    Overlap with EPA's Comprehensive Procurement Guideline program for 
recovered content products. In today's proposed rule, two items may 
overlap with EPA-designated recovered content products. The first item 
is interior paints and coatings, which may overlap with the EPA-
designated recovered content products ``Reprocessed Latex Paints'' and 
``Consolidated Latex Paints.'' The second item is slide way lubricants, 
which may overlap with the EPA-designated recovered content ``Re-
refined Lubricating Oils.''
    For these items, USDA is requesting that information on qualifying 
biobased products be made available by their manufacturers to assist 
Federal agencies in determining if an overlap exists between the 
biobased products and the applicable EPA-designated recovered content 
products. USDA is requesting this information on overlap situations to 
further help procuring agencies make informed decisions when faced with 
purchasing a recovered content material product or a biobased product. 
As this information is developed, USDA will make it available on the 
BioPreferred Web site.
    Exemptions. Products exempt from the biobased procurement 
preference are military equipment, defined as any product or system 
designed or procured for combat or combat-related missions, and 
spacecraft systems and launch support equipment. However, agencies may 
purchase biobased products wherever performance, availability and 
reasonable price indicates that such purchases are justified.
    Although each item in today's proposed rule would be exempt from 
the procurement preference requirement when used in spacecraft systems 
or launch support application or in military equipment used in combat 
and combat-related applications, this exemption does not extend to 
contractors performing work other than direct maintenance and support 
of the spacecraft or launch support equipment or combat or combat-
related missions. For example, if a contractor is cleaning the interior 
of a non-combat office building on a military base, the floor cleaners 
and protectors the contractor purchases and uses in the office building 
should be biobased. The exemption does apply, however, if the product 
being purchased by the contractor is for use in combat or combat-
related missions or for use in space or launch applications. After 
reviewing the regulatory requirement and the relevant contract, where 
contractors have any questions on the exemption, they should contact 
the cognizant contracting officer.
    USDA points out that it is not the intent of these exemptions to 
imply that biobased products are inferior to non-biobased products. If 
manufacturers of biobased products can meet the concerns of these two 
agencies, USDA is willing to reconsider such exemptions on an item-by-
item basis. Any changes to the current exemptions would be announced in 
a proposed rule amendment with an opportunity for public comment.
    Each of the proposed designated items and their subcategories are 
discussed in the following sections.

[[Page 71499]]

1. Animal Repellents (Minimum Biobased Content 79 Percent) \1\
---------------------------------------------------------------------------

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

    Animal repellents are products used to aid in deterring animals 
that cause destruction to plants and/or property.
    USDA identified 29 manufacturers and suppliers of 109 animal 
repellents. These 29 manufacturers and suppliers do not necessarily 
include all manufacturers of animal repellents, merely those identified 
during USDA information gathering activities. Relevant product 
information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. However, manufacturers 
and stakeholders contacted by USDA did not identify any performance 
standards, test methods, or applicable industry measures of performance 
against which these products have been tested. As noted earlier in this 
preamble, the lack of identified performance standards is not relevant 
to the designation of an item for preferred procurement because it is 
not one of the criteria section 9002 requires USDA to consider in order 
to designate an item for preferred procurement. If and when performance 
standards, test methods, and other relevant measures of performance are 
identified for this item, USDA will provide such information on the 
BioPreferred Web site.
    USDA contacted procurement officials with various policy-making and 
procuring agencies in an effort to gather information on the purchases 
of animal repellents, as well as information on products within the 
other 13 items proposed for designation today. These agencies included 
GSA, several offices within the DLA, OFEE, USDA Departmental 
Administration, the National Park Service, EPA, a Department of Energy 
laboratory, and OMB. Communications with these Federal officials led to 
the conclusion that obtaining current item statistics and specific 
potential markets within the Federal government for biobased products 
within the 14 proposed designated items is not possible at this time.
    Most of the contacted officials reported that procurement data are 
appropriately reported in higher level groupings of Federal Supply 
Codes for materials and supplies, which is higher level coding than the 
proposed designated items. Using terms that best match the items in 
today's proposed rule, USDA queried the GSA database for Federal 
purchases of products within today's proposed items. The results 
indicate purchases of products within items in today's proposed rule. 
The results of this inquiry can be found in the TSD for this proposed 
rule. Also, the purchasing of such materials as part of contracted 
services and with individual purchase cards used to purchase products 
locally leads to less accurate data on purchases of specific products.
    USDA also investigated the Web site FEDBIZOPPS.gov, a site which 
lists Federal contract purchase opportunities and awards greater than 
$25,000. The information provided on this Web site, however, is for 
broad categories of services and products rather than the specific 
types of products that are included in today's proposed rule. 
Therefore, USDA has been unable to obtain data on the amount of animal 
repellents purchased by procuring agencies. However, many Federal 
agencies routinely procure such products for use in animal control and 
related services involving the use of such products. On this basis, 
USDA reaches the conclusion that the government has a need for animal 
repellents and for services that use these products. Designation of 
animal repellents will promote the use of biobased products, furthering 
the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on eight animal repellents. Analyses of the environmental and 
human health benefits and the life-cycle costs of biobased animal 
repellents were performed for three of the products using the BEES 
analytical tool. The results of those analyses are presented in the TSD 
for the Round 7 items, which can be found on the BioPreferred Web site.
2. Bath Products (Minimum Biobased Content 61 Percent)
    Bath products are personal hygiene products, including soaps and 
other cleansers for the body. These products are generally bar soaps, 
liquids, or gels that are referred to as body washes, body shampoos, or 
cleansing lotions.
    USDA identified 369 manufacturers and suppliers of 888 bath 
products. These 369 manufacturers and suppliers do not necessarily 
include all manufacturers of bath products, merely those identified 
during USDA information gathering activities. Relevant product 
information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. In addition, 
manufacturers and stakeholders identified four test methods (as shown 
below) used in evaluating products within this item. While there may be 
additional test methods, as well as performance standards, product 
certifications, and other measures of performance, applicable to 
products within this item, the four test methods identified by the 
manufacturers of products within this item are:
    Test Methods:
     ASTM International D-130 Standard Test Method for 
corrosiveness to copper from petroleum products by copper strip test;
     ASTM International D-665 Standard Test Method for rust-
preventing characteristics of inhibited mineral oil in the presence of 
water;
     ISO 32 Calibration in analytical chemistry and use of 
certified reference materials; and
     Vickers I-286-S Tests for pump wear.
    USDA attempted to gather data on the potential market for bath 
products within the Federal government as discussed in the section on 
animal repellents. These attempts were largely unsuccessful. However, 
Federal agencies routinely procure such products and contract for 
lodging and health care related services involving the use of such 
products. On this basis, USDA concludes that the government has a need 
for bath products and for services that use bath products. Designation 
of bath products will promote the use of biobased products, furthering 
the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on 101 bath products. Analyses of the environmental and human 
health benefits and the life-cycle costs of biobased bath products were 
performed for three of the products using the BEES analytical tool. The 
results of those analyses are presented in the TSD for the Round 7 
items, which can be found on the BioPreferred Web site.
3. Bioremediation Materials (Minimum Biobased Content 86 Percent)
    Bioremediation materials are dry or liquid solutions used to clean 
oil, fuel, and other hazardous spill sites. They do not include sorbent 
materials, but may include bacteria or other microbes.
    USDA identified 31 manufacturers and suppliers of 53 bioremediation 
materials. The 31 manufacturers and suppliers do not necessarily 
include all manufacturers and suppliers of biobased bioremediation 
materials, merely those identified during USDA information

[[Page 71500]]

gathering activities. Information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. In 
addition, manufacturers and stakeholders identified two test methods 
(as shown below) used in evaluating products within this item. While 
there may be additional test methods, as well as performance standards, 
product certifications, and other measures of performance, applicable 
to products within this item, the two test methods identified by the 
manufacturers of products within this item are:
    Test Methods:
     American Type Culture Collection Biosafety Level 1 minimal 
potential for causing diseases in humans, plants, animals and aquatic 
life; and
     California Air Resources Board Method 310 VOCs.
    USDA attempted to gather data on the potential market for 
bioremediation materials within the Federal government as discussed in 
the section on animal repellents. These attempts were largely 
unsuccessful. However, many Federal agencies own residential and office 
buildings and routinely perform, or procure contract services to 
perform, the types of maintenance activities that would use these 
products. Thus, they have a need for bioremediation materials and for 
services that require the use of bioremediation materials. Designation 
of bioremediation materials will promote the use of biobased products, 
furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on 11 bioremediation materials. An analysis of the 
environmental and human health benefits and the life-cycle costs of 
biobased bioremediation materials was performed for one of the products 
using the BEES analytical tool. The results of that analysis are 
presented in the TSD for the Round 7 items, which can be found on the 
BioPreferred Web site.
4. Compost Activators and Accelerators (Minimum Biobased Content 95 
Percent)
    Compost activators and accelerators are products designed to be 
applied to compost piles to aid in speeding up the composting process 
and to ensure successful compost that is ready for consumer use. They 
are available in either liquid or powder forms.
    USDA identified 19 manufacturers and suppliers of 32 compost 
activators and accelerators. The 19 manufacturers and suppliers do not 
necessarily include all manufacturers and suppliers of biobased compost 
activators and accelerators, merely those identified during USDA 
information gathering activities. Information supplied by these 
manufacturers and suppliers indicates that these products are being 
used commercially. However, manufacturers and stakeholders contacted by 
USDA did not identify any applicable performance standards, test 
methods, or other industry measures of performance against which these 
products have been tested. USDA points out that the lack of identified 
performance standards is not relevant to the designation of an item for 
preferred procurement because it is not one of the criteria section 
9002 requires USDA to consider in order to designate an item for 
preferred procurement. If and when performance standards, test methods, 
and other relevant measures of performance are identified for this 
item, USDA will provide such information on the BioPreferred Web site.
    USDA attempted to gather data on the potential market for compost 
activator and accelerator products within the Federal government as 
discussed in the section on animal repellents. These attempts were 
largely unsuccessful. However, Federal agencies routinely perform, or 
procure contract services to perform, the types of composting 
activities that would use these products. Thus, they have a need for 
compost activators and accelerators and for services that require the 
use of compost activators and accelerators. Designation of compost 
activators and accelerators will promote the use of biobased products, 
furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on five compost activators and accelerators. An analysis of 
the environmental and human health benefits and the life-cycle costs of 
biobased compost activator and accelerator was performed for one of the 
products using the BEES analytical tool. The results of that analysis 
are presented in the TSD for the Round 7 items, which can be found on 
the BioPreferred Web site.
5. Concrete and Asphalt Cleaners (Minimum Biobased Content 58 Percent)
    Concrete and asphalt cleaners are products used in concrete etching 
as well as to remove petroleum-based soils, lubricants, paints, 
mastics, organic soils, rust, and dirt from concrete, asphalt, stone 
and other hard porous surfaces for commercial, industrial, or 
residential use.
    USDA identified 29 manufacturers and suppliers of 34 concrete and 
asphalt cleaners. The 29 manufacturers and suppliers do not necessarily 
include all manufacturers and suppliers of biobased concrete and 
asphalt cleaners, merely those identified during USDA information 
gathering activities. Information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. In 
addition, manufacturers and stakeholders identified six test methods 
(as shown below) used in evaluating products within this item. While 
there may be additional test methods, as well as performance standards 
and other measures of performance, applicable to products within this 
item, the six test methods identified by the manufacturers of products 
within this item are:
    Test Methods:
     Boeing Spec D6-17487P for aircraft exterior and general 
cleaning;
     ASTM International D3505 standard test method for density 
or relative density of pure liquid chemicals;
     ASTM International E70 standard test method for pH of 
aqueous solutions with the glass electrode;
     Environmental Protection Agency 560/6-82-003 Describes 
methods for performing testing of chemical substances under the Toxic 
Substances Control Act;
     Environmental Protection Agency 601 Purgeable Halocarbons; 
and
     Environmental Protection Agency 602 Purgeable Aromatics.
    USDA attempted to gather data on the potential market for concrete 
and asphalt cleaning products within the Federal government as 
discussed in the section on animal repellents. These attempts were 
largely unsuccessful. However, many Federal agencies routinely perform, 
or procure contract services to perform, concrete and asphalt cleaning. 
Thus, they have a need for concrete and asphalt cleaners and for 
services that require the use of concrete and asphalt cleaners. 
Designation of concrete and asphalt cleaners will promote the use of 
biobased products, furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on nine concrete and asphalt cleaners. An analysis of the 
environmental and human health benefits and the life-cycle costs of 
biobased concrete and asphalt cleaners was performed for one of the 
products using the BEES analytical tool.

[[Page 71501]]

The results of that analysis are presented in the TSD for the Round 7 
items, which can be found on the BioPreferred Web site.
6. Cuts, Burns, and Abrasions Ointments (Minimum Biobased Content 84 
Percent)
    Cuts, burns, and abrasions ointments are products designed to aid 
in the healing and sanitizing of scratches, cuts, bruises, abrasions, 
sun damaged skin, tattoos, rashes and other skin conditions.
    USDA identified 42 manufacturers and suppliers of 71 different 
cuts, burns, and abrasions ointments. These 42 manufacturers and 
suppliers do not necessarily include all manufacturers and suppliers of 
biobased cuts, burns, and abrasions ointments, merely those identified 
during USDA information gathering activities. Information supplied by 
these manufacturers and suppliers indicates that these products are 
being used commercially. However, manufacturers and stakeholders 
contacted by USDA did not identify any applicable performance 
standards, test methods, or other industry measures of performance 
against which these products have been tested. USDA points out that the 
lack of identified performance standards is not relevant to the 
designation of an item for preferred procurement because it is not one 
of the criteria section 9002 requires USDA to consider in order to 
designate an item for preferred procurement. If and when performance 
standards, test methods, and other relevant measures of performance are 
identified for this item, USDA will provide such information on the 
BioPreferred Web site.
    USDA attempted to gather data on the potential market for cuts, 
burns, and abrasions ointments within the Federal government as 
discussed in the section on animal repellents. These attempts were 
largely unsuccessful. However, many Federal agencies routinely procure 
and use such products in daily operations. In addition, Federal 
agencies may contract for health care services involving the use of 
such products. Thus, they have a need for cuts, burns, and abrasions 
ointments and for services that require the use of cuts, burns, and 
abrasions ointments. Designation of cuts, burns, and abrasions 
ointments will promote the use of biobased products, furthering the 
objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on 23 cuts, burns, and abrasions ointments. Analyses of the 
environmental and human health benefits and the life-cycle costs of 
biobased cuts, burns, and abrasions ointments were performed for two of 
the products using the BEES analytical tool. The results of those 
analyses are presented in the TSD for the Round 7 items, which can be 
found on the BioPreferred Web site.
7. Dishwashing Products (Minimum Biobased Content 58 Percent)
    Dishwashing products are soaps and detergents used for cleaning and 
clean rinsing of tableware in either hand washing or dishwashing 
machines.
    USDA identified 39 manufacturers and suppliers of 64 different 
dishwashing products. These 39 manufacturers and suppliers do not 
necessarily include all manufacturers and suppliers of biobased 
dishwashing products, merely those identified during USDA information 
gathering activities. Information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. In 
addition, manufacturers and stakeholders identified six test methods 
(as shown below) used in evaluating products within this item. While 
there may be additional test methods, as well as performance standards 
and other measures of performance, applicable to products within this 
item, the six test methods identified by the manufacturers of products 
within this item are:
    Test Methods:
     Bacteria Inhibitory;
     Chlorine Equal;
     Boeing D6-7127: ``Cleaning interiors of commercial 
transport aircraft'';
     Federal Test Method Standard 536A: Soap and soap products 
(including synthetic detergents) sampling and testing;
     South Coast Air Quality Management District, Clean Air: 
The South Coast Air Quality Management District hereby certifies the 
above product as a ``Clean Air Solvent''; and
     U.S. Navy, Navsea 6840 U.S. Navy surface ship (non-
submarine) authorized chemical cleaning products and dispensing 
systems.
    USDA attempted to gather data on the potential market for 
dishwashing products within the Federal government as discussed in the 
section on animal repellents. These attempts were largely unsuccessful. 
However, many Federal agencies routinely use dishwashing products in 
daily operations. In addition, Federal agencies may contract for food 
preparation and kitchen cleaning services involving the use of such 
products. Thus, they have a need for dishwashing products and for 
services that require the use of dishwashing products. Designation of 
dishwashing products will promote the use of biobased products, 
furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on 28 dishwashing products. An analysis of the environmental 
and human health benefits and the life-cycle costs of biobased 
dishwashing products was performed for one of the products using the 
BEES analytical tool. The results of that analysis are presented in the 
TSD for the Round 7 items, which can be found on the BioPreferred Web 
site.
8. Erosion Control Materials (Minimum Biobased Content 77 Percent)
    Erosion control materials are woven or non-woven fiber materials 
manufactured for use on construction, demolition, or other sites to 
prevent wind or water erosion of loose earth surfaces, and may be 
combined with seed and/or fertilizer to promote growth.
    USDA identified 30 manufacturers and suppliers of 169 erosion 
control materials. These 30 manufacturers and suppliers do not 
necessarily include all manufacturers and suppliers of biobased erosion 
control materials, merely those identified during USDA information 
gathering activities. Information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. In 
addition, manufacturers and stakeholders identified 21 test methods (as 
shown below) used in evaluating products within this item. While other 
test methods and measures of performance, as well as performance 
standards, applicable to products within this item may exist, the 21 
test methods identified by manufacturers of products within this item 
and by others are:
    Test Methods:
     American Association of State Highway Transportation 
Officials M288-96 Geotextile Specifications;
     ASTM International D1388 Standard Test Method for 
Stiffness of Fabrics;
     ASTM International D1777 Standard Test Method for 
Thickness of Textile Materials;
     ASTM International D2974 Standard Test Method for 
Moisture, Ash, and Organic Matter of Peat and Other Organic Soils;
     ASTM International D3776 Standard Test Methods for Mass 
per Unit Area (Weight) of Fabric;

[[Page 71502]]

     ASTM International D4354 Standard Test Practice for 
Sampling of Geosynthetics for Testing;
     ASTM International D4595 Standard Test Method for Tensile 
Properties of Geotextiles by the Wide-Width Strip Method;
     ASTM International D5035 Standard Test Method for Breaking 
Force and Elongation of Textile Fabrics (Strip Method);
     ASTM International D5261 Standard Test Method for 
Measuring Mass per Unit Area of Geotextiles;
     ASTM D586 Standard Test Method for Ash in Pulp, Paper and 
Paper Products;
     ASTM International D6400 Standard Specification for 
Compostable Plastics;
     ASTM International D6459 Standard Test Method for 
Determination of Erosion Control Blanket (ECB) Performance in 
Protecting Hillslopes from Rainfall-Induced Erosion;
     ASTM International D6460 Standard Test Method for 
Determination of Rolled Erosion Control Product (RECP) Performance in 
Protecting Earthen Channels from Stormwater-Induced Erosion;
     ASTM International D6475 Standard Test Method for 
Measuring Mass per Unit Area of Erosion Control Blankets;
     ASTM International D6524 Standard Test Method for 
Measuring the Resiliency of Turf Reinforcement Mats (TRMs);
     ASTM International D6525 Standard Test Method for 
Measuring Nominal Thickness of Permanent Rolled Erosion Control 
Products;
     ASTM International D6566 Standard Test Method for 
Measuring Mass per Unit of Area of Turf Reinforcement Mats;
     ASTM International D6567 Standard Test Method for 
Measuring the Light Penetration of a Turf Reinforcement Mat (TRM);
     ASTM International D6575 Standard Test Method for 
Determining Stiffness of Geosynthetics Used as Turf Reinforcement Mats 
(TRMs);
     ASTM International D6818 Standard Test Method for Ultimate 
Tensile Properties of Turf Reinforcement Mats; and
     Erosion Control Technology Council Technical Guidance 
Manual: TASC 00197.
    USDA attempted to gather data on the potential market for erosion 
control materials within the Federal government as discussed in the 
section on animal repellents. These attempts were largely unsuccessful. 
However, many Federal agencies routinely perform, or procure contract 
services to perform construction, demolition or other site work or 
maintenance that requires the use of erosion control materials. Thus, 
they have a need for these products. Designation of erosion control 
materials will promote the use of biobased products, furthering the 
objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on 15 erosion control materials. Analyses of the 
environmental and human health benefits and the life-cycle costs of 
biobased erosion control materials were performed for two of the 
products using the BEES analytical tool. The results of those analyses 
are presented in the TSD for the Round 7 items, which can be found on 
the BioPreferred Web site.
9. Floor Cleaners and Protectors (Minimum Biobased Content 77 Percent)
    Floor cleaners and protectors are cleaning solutions for either 
direct application or use in floor scrubbers for wood, vinyl, tile, or 
similar hard surface floors.
    USDA identified 25 manufacturers and suppliers of 39 floor cleaners 
and protectors. These 25 manufacturers and suppliers do not necessarily 
include all manufacturers and suppliers of biobased floor cleaners and 
protectors, merely those identified during USDA information gathering 
activities. Information supplied by these manufacturers and suppliers 
indicates that these products are being used commercially. In addition, 
manufacturers and stakeholders identified several test methods and 
other measures of performance (as shown below) used in evaluating 
products within this item. While other test methods and other measures 
of performance, as well as performance standards, applicable to 
products within this item may exist, those test methods and other 
measures of performance identified by manufacturers of products within 
this item and by others are:
    Test Methods:
     ASTM International D4488 Standard guide for testing 
cleaning performance of products intended for use on resilient flooring 
and washable walls; and
     ASTM International D5343 Standard guide for evaluating 
cleaning performance of ceramic tile cleaners.
    USDA attempted to gather data on the potential market for floor 
cleaners and protectors within the Federal government as discussed in 
the section on animal repellents. These attempts were largely 
unsuccessful. However, many Federal agencies routinely perform, or 
procure contract services to perform, activities that use floor 
cleaners and protectors. Thus, they have a need for these products. 
Designation of floor cleaners and protectors will promote the use of 
biobased products, furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on 14 floor cleaners and protectors. Analyses of the 
environmental and human health benefits and the life-cycle costs of 
biobased floor cleaners and protectors were performed for two of the 
products using the BEES analytical tool. The results of those analyses 
are presented in the TSD for the Round 7 items, which can be found on 
the BioPreferred Web site.
10. Hair Care Products (Minimum Biobased Content: 66 Percent for 
Shampoos; 78 Percent for Conditioners)
    Hair care products are products that are specifically formulated 
for hair cleaning and treatment applications, including shampoos and 
conditioners.
    USDA identified 58 manufacturers and suppliers of 265 hair care 
products. Of these 265 products, 147 were identified as providing 
products designed specifically as shampoos and 118 were identified as 
providing products designed as conditioners. Based on the information 
available to it, USDA believes that it is appropriate to subcategorize 
this item into shampoo products and conditioner products. For the 
purpose of this rulemaking, products that contain a combination of 
shampoo and conditioner are considered to be shampoos because the 
primary purpose of these products is believed to be cleaning the hair.
    The 58 manufacturers and suppliers do not necessarily include all 
manufacturers and suppliers of hair care products, merely those 
identified during USDA information gathering activities. Information 
supplied by these manufacturers and suppliers indicates that these 
products are being used commercially. However, manufacturers and 
stakeholders contacted by USDA did not identify any performance 
standards, test methods, or applicable industry measures of performance 
against which these products have been tested. As noted earlier in this 
preamble, the lack of identified performance standards is not relevant 
to the designation of an item for preferred procurement because it is 
not one of the criteria section 9002 requires USDA to

[[Page 71503]]

consider in order to designate an item for preferred procurement. If 
and when performance standards, test methods, and other relevant 
measures of performance are identified for this item, USDA will provide 
such information on the BioPreferred Web site.
    USDA attempted to gather data on the potential market for hair care 
products within the Federal government as discussed in the section on 
animal repellents. These attempts were largely unsuccessful. However, 
some Federal agencies routinely procure hair care products, or procure 
services that use these products. Thus, they have a need for hair care 
products and for services that require the use of hair care products. 
Designation of hair care products will promote the use of biobased 
products, furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on 106 hair care products. Analyses of the environmental and 
human health benefits and the life-cycle costs of biobased hair care 
products were performed for two of the shampoo products using the BEES 
analytical tool. The results of those analyses are presented in the TSD 
for the Round 7 items, which can be found on the BioPreferred Web site.
11. Interior Paints and Coatings (Minimum Biobased Content 67 Percent)
    Interior paints and coatings are products used to protect and add 
color to an object or surface by covering it with a pigmented coating 
specifically formulated to provide protection in indoor applications.
    USDA identified 15 manufacturers and suppliers of 114 different 
biobased interior paints and coatings. These 15 manufacturers and 
suppliers do not necessarily include all manufacturers and suppliers of 
biobased interior paints and coatings, merely those identified during 
USDA information gathering activities. Information supplied by these 
manufacturers and suppliers indicates that these products are being 
used commercially. In addition, manufacturers and stakeholders 
identified three test methods (as shown below) used in evaluating 
products within this item. While other test methods and other measures 
of performance, as well as performance standards, applicable to 
products within this item may exist, those test methods and other 
measures of performance identified by manufacturers of products within 
this item and by others are:
    Test Methods:
     ASTM International D2486 Standard Test Method for Scrub 
Resistance of Wall Paint;
     ASTM International 4828-91 Stain Resistance; and
     ASTM International D2805-88 Standard Test Method for 
Opacity.
    USDA attempted to gather data on the potential market for interior 
paints and coatings within the Federal government as discussed in the 
section on animal repellents. These attempts were largely unsuccessful. 
However, Federal agencies have residential and office buildings that 
requires the use of interior paints and coatings. In addition, Federal 
agencies may procure contract maintenance services that require the use 
of interior paints and coatings. Thus, they have a need for interior 
paints and coatings and for services that require the use of such 
products. Designation of interior paints and coatings will promote the 
use of biobased products, furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on 10 interior paints and coatings. Analyses of the 
environmental and human health benefits and the life-cycle costs of 
biobased interior paints and coatings were performed for two of the 
products using the BEES analytical tool. The results of those analyses 
are presented in the TSD for the Round 7 items, which can be found on 
the BioPreferred Web site.
12. Oven and Grill Cleaners (Minimum Biobased Content 66 Percent)
    Oven and grill cleaners are cleaning agents used on high 
temperature cooking surfaces such as barbeques, smokers, grills, 
stoves, and ovens to soften and loosen charred food, grease, and 
residue.
    USDA identified 11 manufacturers and suppliers of 13 oven and grill 
cleaner products. These 11 manufacturers and suppliers do not 
necessarily include all manufacturers of oven and grill cleaners, 
merely those identified during USDA information gathering activities. 
Information supplied by the manufacturers and suppliers indicates that 
these products are being used commercially. However, manufacturers and 
stakeholders contacted by USDA did not identify any applicable 
performance standards, test methods, or other industry measures of 
performance against which these products have been tested. USDA points 
out that the lack of identified performance standards is not relevant 
to the designation of an item for preferred procurement because it is 
not one of the criteria section 9002 requires USDA to consider in order 
to designate an item for preferred procurement. If and when performance 
standards, test methods, and other relevant measures of performance are 
identified for this item, USDA will provide such information on the 
BioPreferred Web site.
    USDA attempted to gather data on the potential market for oven and 
grill cleaners within the Federal government using the procedure 
described in the section on animal repellents. These attempts were 
largely unsuccessful. However, Federal agencies routinely engage in 
operations where oven and grill cleaners are used. In addition, many 
Federal agencies contract for food service activities involving the use 
of such products. Thus, they have a need for oven and grill cleaners 
and for services that use oven and grill cleaners. Designation of oven 
and grill cleaners will promote the use of biobased products, 
furthering the objectives of this program.
    Specific product information including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on nine oven and grill cleaners. Analyses of the 
environmental and human health benefits and the life-cycle costs of 
biobased oven and grill cleaners were performed for three of the 
products using the BEES analytical tool. The results of those analyses 
are presented in the TSD for the Round 7 items, which can be found on 
the BioPreferred Web site.
13. Slide Way Lubricants (Minimum Biobased Content 74 Percent)
    Slide way lubricants are products used to provide lubrication 
between the mating surfaces, or slides, found in machine tools. These 
lubricants eliminate stick-slip or table chatter by reducing friction 
between mating surfaces.
    USDA identified three manufacturers and suppliers of four different 
biobased slide way lubricants. These three manufacturers and suppliers 
do not necessarily include all manufacturers and suppliers of biobased 
slide way lubricants, merely those identified during USDA information 
gathering activities. Information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. In 
addition, manufacturers and stakeholders identified 10 test methods (as 
shown below) used in evaluating products within this item. While there 
may be additional test methods, as well as

[[Page 71504]]

performance standards and other measures of performance, applicable to 
products within this item, the 10 test methods identified by the 
manufacturers of products within this item are:
    Test Methods:
     ASTM International D2161 Standard Practice for Conversion 
of Kinematic Viscosity to Saybolt Universal Viscosity or to Saybolt 
Furol;
     ASTM International D2270 Standard Practice for Calculating 
Viscosity Index from Kinematic Viscosity at 40 and 100 [deg]C;
     ASTM International D2782 Standard Test Method for 
Measurement of Extreme-Pressure Properties of Lubricating Fluids 
(Timken Method);
     ASTM International D2783 Standard Test Method for 
Measurement of Extreme-Pressure Properties of Lubricating Fluids (Four-
Ball Method);
     ASTM International D287 Standard Test Method for API 
Gravity of Crude Petroleum and Petroleum Products (Hydrometer Method);
     ASTM International D445 Standard Test Method for Kinematic 
Viscosity of Transparent and Opaque Liquids (and Calculation of Dynamic 
Viscosity);
     ASTM International D5864 Standard Test Method for 
Determining Aerobic Aquatic Biodegradation of Lubricants or Their 
Components;
     ASTM International D665 Standard Test Method for Rust-
Preventing Characteristics of Inhibited Mineral Oil in the Presence of 
Water;
     ASTM International D92 Standard Test Method for Flash and 
Fire Points by Cleveland Open Cup Tester; and
     ASTM International D97 Standard Test Method for Pour Point 
of Petroleum Products.
    USDA attempted to gather data on the potential market for slide way 
lubricants within the Federal government as discussed in the section on 
animal repellents. These attempts were largely unsuccessful. However, 
Federal agencies have machinery and equipment that requires the use of 
slide way lubricants. In addition, Federal agencies may procure 
contract services that have machinery that requires the use of slide 
way lubricants. Thus, they have a need for slide way lubricants and for 
services that require the use of such lubricants. Designation of slide 
way lubricants will promote the use of biobased products, furthering 
the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on two slide way lubricants. An analysis of the environmental 
and human health benefits and the life-cycle costs of biobased slide 
way lubricants was performed for one of the products using the BEES 
analytical tool. The results of that analysis are presented in the TSD 
for the Round 7 items, which can be found on the BioPreferred Web site.
14. Thermal Shipping Containers (Minimum Biobased Content: 21 Percent 
for Durable Containers; 82 Percent for Non-Durable Containers)
    Thermal shipping containers are insulated containers for shipping 
temperature sensitive materials.
    USDA identified two manufacturers of three biobased thermal 
shipping container products. Of these manufacturers, one was identified 
as providing two products designed for single, short term use (non-
durable) and the other manufacturer was identified as providing a 
durable product intended for long term use.
    The two manufacturers do not necessarily include all manufacturers 
of biobased thermal shipping containers, merely those identified during 
USDA information gathering activities. Information supplied by these 
manufacturers indicates that these products are being used 
commercially. In addition, manufacturers and stakeholders identified 
four methods (as shown below) used in evaluating products within this 
item. While other test methods and other measures of performance, as 
well as performance standards, applicable to products within this item 
may exist, those test methods and other measures of performance 
identified by manufacturers of products within this item and by others 
are:
    Test Methods:
     ASTM International D4236 Standard Practice for Labeling 
Art Materials for Chronic Health Hazards;
     ASTM International D963 Specification for Copper 
Phthalcoyanine Blue Pigment;
     ASTM International D5338 Standard Test Method for 
Determining Aerobic Biodegradation of Plastic Materials Under 
Controlled Composting Conditions; and
     ASTM International D6868 Standard Specification for 
Biodegradable Plastics Used as Coatings on Paper and Other Compostable 
Substrates.
    USDA attempted to gather data on the potential market for thermal 
shipping containers within the Federal government as discussed in the 
section on animal repellents. These attempts were largely unsuccessful. 
However, many Federal agencies routinely use such containers, and 
procure services that use thermal shipping containers. Thus, they have 
a need for thermal shipping containers and for services that require 
the use of thermal shipping containers. Designation of thermal shipping 
containers will promote the use of biobased products, furthering the 
objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on two thermal shipping containers. Analyses of the 
environmental and human health benefits and the life-cycle costs of 
biobased thermal shipping containers were performed for two of the 
products using the BEES analytical tool. The results of those analyses 
are presented in the TSD for the Round 7 items, which can be found on 
the BioPreferred Web site.

C. Minimum Biobased Contents

    USDA has determined that setting a minimum biobased content for 
designated items is appropriate. Establishing a minimum biobased 
content will encourage competition among manufacturers to develop 
products with higher biobased contents and will prevent products with 
de minimis biobased content from being purchased as a means of 
satisfying the requirements of section 9002. USDA believes that it is 
in the best interest of the preferred procurement program for minimum 
biobased contents to be set at levels that will realistically allow 
products to possess the necessary performance attributes and allow them 
to compete with non-biobased products in performance and economics. 
Setting the minimum biobased content for an item at a level met by 
several of the tested products will provide more products from which 
procurement officials may choose, will encourage the most widespread 
usage of biobased products by procuring agencies, and is expected to 
accomplish the objectives of section 9002.
    As discussed in Section IV.A of this preamble, USDA relied entirely 
on manufacturers' voluntary submission of samples to support the 
proposed designation of these items. The data presented in the 
following paragraphs are the test results from all of the product 
samples that were submitted for analysis.
    As a result of public comments received on the first designated 
items rulemaking proposal, USDA decided to account for the slight 
imprecision in the analytical method used to determine biobased content 
of products when establishing the minimum biobased content. Thus, 
rather than establishing the minimum biobased content for an

[[Page 71505]]

item at the tested biobased content of the product selected as the 
basis for the minimum value, USDA is establishing the minimum biobased 
content at a level three (3) percentage points less than the tested 
value. USDA believes that this adjustment is appropriate to account for 
the expected variations in analytical results.
    USDA encourages procuring agencies to seek products with the 
highest biobased content that is practicable in all of the proposed 
designated items and subcategories. To assist the procuring agencies in 
determining which products have the highest biobased content, USDA will 
update the information in the biobased products catalog to include the 
biobased content of each product. Those products within each designated 
item that have the highest biobased content will be listed first and 
others will be listed in descending order. USDA is specifically 
requesting comments on the proposed minimum biobased contents of 
designated items and also requests additional data that can be used to 
re-evaluate the appropriateness of the proposed minimum biobased 
contents. As the market for biobased products develops and USDA obtains 
additional biobased content data, it will re-evaluate the established 
minimum biobased contents of designated items and consider raising them 
whenever justified.
    The following paragraphs summarize the information that USDA used 
to propose minimum biobased contents within each proposed designated 
item.
1. Animal Repellents
    Six of the 109 biobased animal repellents have been tested for 
biobased content using ASTM D6866.\2\ The biobased contents of these 
six biobased animal repellents range from 22 to 100 percent, as 
follows: 22, 28, 82, 98, 100, and 100. There is a wide range of tested 
biobased contents, and a significant break between the values for the 
two products with the lowest biobased contents and the values for the 
four products with the highest biobased contents. Because USDA found 
that the two products with the 22 and 28 percent biobased content did 
not claim to offer any unique performance or applicability features not 
offered by the products with 100 percent biobased content, and because 
we have data showing that at least two different products are available 
with a biobased content of 100 percent, we are proposing to set the 
minimum biobased content for this item at 79 percent based on the 
product with a tested biobased content of 82 percent.
---------------------------------------------------------------------------

    \2\ ASTM D6866, ``Standard Test Methods for Determining the 
Biobased Content of Solid, Liquid, and Gaseous Samples Using 
Radiocarbon Analysis,'' is used to distinguish between carbon from 
fossil resources (non-biobased carbon) and carbon from renewable 
sources (biobased carbon). The biobased content is expressed as the 
percentage of total carbon that is biobased carbon.
---------------------------------------------------------------------------

2. Bath Products
    Thirteen of the 850 biobased bath products have been tested for 
biobased content using ASTM D6866. The biobased contents of these 13 
biobased bath products range from 21 to 100 percent, as follows: 21, 
43, 64, 66, 67, 70, 74, 76, 83, 96, and 100 (three products). Because 
there is a wide range of tested biobased contents, and because there 
are significant breaks among the values for the three products with the 
lowest biobased contents, USDA considered the need to subcategorize 
this item. USDA found that there was not sufficient information on the 
performance or applicability of the products to justify 
subcategorization. USDA also found that the two products with the 21 
and 43 percent biobased contents did not claim to offer any unique 
performance features. The biobased contents of these two products are 
also significantly below the content of the next highest (64 percent) 
product. In addition, seven of the 13 tested products had biobased 
contents in the narrow range between 64 and 83 percent. Therefore, USDA 
is proposing to set the minimum biobased content for this item at 61 
percent, based on the product with a tested biobased content of 64 
percent.
3. Bioremediation Materials
    Three of the 53 biobased bioremediation materials identified have 
been tested for biobased content using ASTM D6866. The biobased 
contents of these three biobased bioremediation materials are 24, 89, 
and 100 percent. Because there is a significant gap in the data between 
the 24 and the 89 percent biobased products, USDA investigated the 24 
percent product to determine if there was justification in considering 
it when setting the minimum biobased content. USDA did not find any 
performance or applicability claims that would justify setting the 
minimum biobased content for the item at that level. Therefore, USDA is 
proposing to set the minimum biobased content for this item at 86 
percent, based on the product with the tested biobased content of 89 
percent.
4. Compost Activators and Accelerators
    Two of the 32 biobased compost activators and accelerators 
identified have been tested for biobased content using ASTM D6866. The 
biobased contents of these two biobased compost activators and 
accelerators are 98, and 100 percent. Because of the narrow range of 
these products, USDA is proposing to set the minimum biobased content 
for compost activators and accelerators at 95 percent, based on the 
product with a tested biobased content of 98 percent.
5. Concrete and Asphalt Cleaners
    Five of the 37 biobased concrete and asphalt cleaners identified 
have been tested for biobased content using ASTM D6866. The biobased 
contents of these five biobased concrete and asphalt cleaners range 
from 1 percent to 91 percent, as follows: 1, 11, 28, 73, and 91 
percent.
    USDA found that the products with 1 percent and 11 percent biobased 
contents are products that use microbial organisms as the active 
cleaning agents. As discussed earlier in this preamble, USDA is 
considering creating a separate designated item for microbial cleaners. 
As a result, USDA decided not to include these products when proposing 
the minimum biobased content for the concrete and asphalt cleaners 
item. USDA requests that manufacturers of these two microbial cleaning 
products, and manufacturers of any other microbial cleaners, provide 
comments and information on the creation of a separate category for 
microbial cleaners.
    The three remaining concrete and asphalt cleaners had biobased 
contents of 28, 73, and 91 percent. Because there is a significant 
break between the 28 percent biobased product and the 73 percent 
biobased product, and there is no product information to suggest that 
the 28 percent product offers any unique performance or applicability 
features, USDA is proposing to set the minimum biobased content for 
this item at 70 percent, based on the product with a tested biobased 
content of 73 percent.
6. Cuts, Burns, and Abrasions Ointments
    Eight of the 71 identified biobased cuts, burns, and abrasions 
ointments identified have been tested for biobased content using ASTM 
D6866. The biobased contents of these eight biobased cuts, burns, and 
abrasions ointments range from 87 percent to 100 percent, as follows: 
87, 91, 93, 94, 97, 100, 100, and 100 percent. Because of the narrow 
range of these products, USDA is proposing to set the minimum biobased 
content for this item at 84 percent, based on the product with the 87 
percent biobased content.

[[Page 71506]]

7. Dishwashing Products
    Five of the 66 identified biobased dishwashing products identified 
have been tested for biobased content using ASTM D6866. The biobased 
contents of these five biobased dishwashing products range from 30 
percent to 95 percent, as follows: 30, 41, 61, 75, and 95 percent.
    There are two significant breaks in the range of data, one between 
the 41 and 61 percent biobased products and another between the 75 and 
95 percent biobased products. Considering these breaks, the tested 
products within the item fall into three groups. USDA evaluated the 
available product information to determine if there were sufficient 
differences in formulation, performance, or applicability between these 
product groups to justify subcategorization. However, USDA did not find 
sufficient information to justify subcategories within the item. USDA 
also did not find any features of the 30 or 41 percent biobased content 
products that would justify setting the minimum biobased content at a 
level that would include these products. Therefore, USDA is proposing 
to set the minimum biobased content for this item at 58 percent, based 
on the product with the tested biobased content of 61 percent. USDA 
does not believe that it is reasonable to consider the break between 
the 75 percent biobased content product and the 95 percent biobased 
content product when setting the minimum biobased content because only 
one of the products would qualify if the minimum biobased content were 
set at this higher level.
    USDA will continue to gather information on products within this 
item, and if sufficient supporting information becomes available, will 
consider establishing subcategories based on formulation (detergents 
versus soaps, liquids versus powders, etc.), performance, or 
applicability.
8. Erosion Control Materials
    Eight of the 169 biobased erosion control materials identified have 
been tested for biobased content using ASTM D6866. The biobased 
contents of these eight biobased erosion control materials ranged from 
80 percent to 100 percent as follows: 80, 81, 96, 98, 99, 100, 100, and 
100 percent. Because of the narrow range of these products, USDA is 
proposing to set the minimum biobased content for erosion control 
materials at 77 percent, based on the product with a tested biobased 
content of 80 percent.
9. Floor Cleaners and Protectors
    Seven of the 39 biobased floor cleaners and protectors identified 
have been tested for biobased content using ASTM D6866. The biobased 
contents of these seven biobased floor cleaners and protectors ranged 
from 40 percent to 99 percent as follows: 40, 57, 80, 80, 91, 97, and 
99 percent.
    There is a significant break in the range of data between the 57 
and the 80 percent biobased content products, but the available product 
information does not justify creating subcategories within this item. 
The manufacturers of the two products with biobased contents of 40 and 
57 do not make any performance or applicability claims for these 
products that would distinguish them from the other products. 
Therefore, USDA is proposing to set the minimum biobased content for 
biobased floor cleaners and protectors at 77 percent, based on the 
product with a tested biobased content of 80 percent.
10. Hair Care Products
    Ten of the 263 biobased hair care products identified have been 
tested for biobased content using ASTM D6866. The biobased contents of 
these 10 biobased hair care products range from 38 percent to 89 
percent as follows: 38, 40, 43, 69, 75, 76, 81, 82, 83, and 89 percent.
    As noted earlier in this preamble, USDA is proposing to 
subcategorize this item into two subcategories: ``Shampoos'' and 
``Conditioners.'' The following paragraphs discuss the minimum biobased 
content for the two subcategories.
    Shampoos. The biobased contents of the seven tested shampoos range 
from 38 percent to 83 percent, as follows: 38, 40, 43, 69, 75, 76, and 
83. There is a significant break between the 43 percent biobased 
product and the 69 percent product, and USDA found no performance 
features claimed for the 38, 40, or 43 percent products that justified 
setting the minimum biobased content based on any of these products. 
Because the biobased contents of the remaining four products are within 
a narrow range, and there is no performance information to distinguish 
any one product from the others, USDA is proposing to set the minimum 
biobased content for shampoos at 66 percent, based on the product with 
a tested biobased content of 69 percent.
    Conditioners. The biobased contents of the three tested 
conditioners range from 81 to 89 percent, as follows: 81, 82, and 89. 
Because of the narrow range of these products, USDA is proposing to set 
the minimum biobased content for conditioners at 78 percent, based on 
the product with a tested biobased content of 81 percent.
11. Interior Paints and Coatings
    Five of the 114 biobased interior paints and coatings identified 
have been tested for biobased content using ASTM D6866. The biobased 
contents of these five biobased interior paints and coatings range from 
70 to 100 percent, as follows: 70, 83, 90, 91, and 100 percent. Because 
the range of these five values is relatively narrow and there are no 
significant breaks in the range of the data, USDA is proposing to set 
the minimum biobased content for this item at 67 percent, based on the 
product with a tested biobased content of 70 percent.
12. Oven and Grill Cleaners
    Four of the 13 biobased oven and grill cleaners identified have 
been tested for biobased content using ASTM D6866. The biobased 
contents of these four biobased oven and grill cleaners ranged from 22 
percent to 91 percent, as follows: 22, 69, 88, and 91.
    As shown, the tested biobased contents cover a wide range and there 
is a significant break between the 22 percent biobased product and the 
69 percent biobased product. The one oven and grill cleaner whose 
tested biobased content was 22 percent was eliminated from 
consideration because USDA found no performance characteristics that 
set this product apart from other products in this item. Further, this 
product's tested biobased content is substantially lower than the next 
lowest oven and grill cleaner tested (69 percent). Therefore, USDA is 
proposing to set the minimum biobased content for oven and grill 
cleaners at 66 percent, based on the product with a tested biobased 
content of 69 percent.
13. Slide Way Lubricants
    All of the four biobased slide way lubricants identified have been 
tested for biobased content using ASTM D6866. The biobased contents of 
these four biobased slide way lubricants are 77, 99, 100, and 100 
percent. Because the range of these four values is relatively narrow 
and eliminating the product with the 77 percent biobased content would 
result in an extremely high minimum biobased content for this item, 
USDA is proposing to set the minimum biobased content for this item at 
74 percent, based on the product with a tested biobased content of 77 
percent.
14. Thermal Shipping Containers
    Two of the three biobased thermal shipping containers identified 
have been tested for biobased content using ASTM D6866. The biobased 
contents of these two biobased thermal shipping containers were 24 
percent and 85 percent. As noted earlier in this

[[Page 71507]]

preamble, USDA is proposing to subcategorize this item into two 
subcategories: ``Durable thermal shipping containers'' and ``Non-
durable thermal shipping containers.'' The following paragraphs discuss 
the minimum biobased content for the two subcategories.
    Durable thermal shipping containers. USDA is proposing to set the 
minimum biobased content for durable thermal containers at 21 percent, 
based on the product with a tested biobased content of 24 percent. USDA 
will continue to gather additional biobased content information for 
this subcategory and, if sufficient data are obtained, will consider 
increasing the minimum biobased content for the final rule.
    Non-durable thermal shipping containers. USDA is proposing to set 
the minimum biobased content for non-durable thermal containers at 82 
percent, based on the product with a tested biobased content of 85 
percent.

D. Compliance Date for Procurement Preference and Incorporation Into 
Specifications

    USDA intends for the final rule to take effect thirty (30) days 
after publication of the final rule. However, as proposed, procuring 
agencies would, with the exception of one designated item discussed 
below, have a one-year transition period, starting from the date of 
publication of the final rule, before the procurement preference for 
biobased products within a designated item would take effect.
    USDA is proposing a one-year period before the procurement 
preferences would take effect, because it recognizes that Federal 
agencies will need time to incorporate the preferences into procurement 
documents and to revise existing standardized specifications. Both 
section 9002(a)(3) and 7 CFR 2902(c) explicitly acknowledge the need 
for Federal agencies to have sufficient time to revise the affected 
specifications to give preference to biobased products when purchasing 
the designated items. Procuring agencies will need time to evaluate the 
economic and technological feasibility of the available biobased 
products for their agency-specific uses and for compliance with agency-
specific requirements, including manufacturers' warranties for 
machinery in which the biobased products would be used.
    By the time these items are promulgated for designation, Federal 
agencies will have had a minimum of 18 months (from the date of this 
Federal Register notice), and much longer considering when the 
Guidelines were first proposed and these requirements were first laid 
out, to implement these requirements.
    For these reasons, USDA proposes that the mandatory preference for 
biobased products under the designated items take effect one year after 
promulgation of the final rule. The one-year period provides these 
agencies with ample time to evaluate the economic and technological 
feasibility of biobased products for a specific use and to revise the 
specifications accordingly. However, some agencies may be able to 
complete these processes more expeditiously, and not all uses will 
require extensive analysis or revision of existing specifications. 
Although it is allowing up to one year, USDA encourages procuring 
agencies to implement the procurement preferences as early as 
practicable for procurement actions involving any of the designated 
items.
    Only one manufacturer within each subcategory of the thermal 
shipping containers designated item has been identified. Therefore, 
USDA is proposing to defer the procurement compliance date for the 
subcategories within this designated item until two or more 
manufacturers of products within the subcategories are identified. When 
USDA 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 durable and non-durable thermal 
shipping containers, as appropriate.

V. Where can agencies get more information on these USDA-designated 
items?

    Information used to develop this proposed rule can be found in the 
TSD, which can be accessed on the BioPreferred Web site, which is 
located at: http://www.biopreferred.gov. At the BioPreferred Web site, 
click on the Proposed and Final Regulations link on the right side of 
the page. At the next screen, click on the Supporting Documentation 
link under Round 7 Designation under the Proposed Regulations section.
    Further, once the item designations in today's proposal become 
final, manufacturers and vendors voluntarily may make available 
information on specific products, including product and contact 
information, for posting by the Agency on the BioPreferred Web site. 
USDA has begun performing periodic audits of the information displayed 
on the BioPreferred Web site and, where questions arise, is contacting 
the manufacturer or vendor to verify, correct, or remove incorrect or 
out-of-date information. Procuring agencies should contact the 
manufacturers and vendors directly to discuss specific needs and to 
obtain detailed information on the availability and prices of biobased 
products meeting those needs.
    By accessing the BioPreferred Web site, agencies will also be able 
to obtain the voluntarily-posted information on each product 
concerning: Relative price; life-cycle costs; hot links directly to a 
manufacturer's or vendor's Web site (if available); performance 
standards (industry, government, military, ASTM/ISO) that the product 
has been tested against; and environmental and public health 
information from the BEES analysis or the alternative analysis embedded 
in the ASTM Standard D7075, ``Standard Practice for Evaluating and 
Reporting Environmental Performance of Biobased Products.''
    USDA has linked the BioPreferred Web site to DoD's list of 
specifications and standards, which can be used as guidance when 
procuring products. To access this list, go to the BioPreferred Web 
site and click on the ``Selling to Federal Government'' tab and look 
for the DoD Specifications link.

VI. Regulatory Information

A. Executive Order 12866: Regulatory Planning and Review

    Executive Order 12866 requires agencies to determine whether a 
regulatory action is ``significant.'' The Order defines a ``significant 
regulatory action'' as one that is likely to result in a rule that may: 
``(1) Have an annual effect on the economy of $100 million or more or 
adversely affect, in a material way, the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities; (2) Create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) Materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in this Executive 
Order.''
    Today's proposed rule has been determined to be 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 today's

[[Page 71508]]

proposed rule. As discussed earlier in this preamble, USDA made 
extensive efforts to obtain information on the Federal agencies' usage 
within the 14 designated items, including their subcategories. These 
efforts were largely unsuccessful. Therefore, attempts to determine the 
economic impacts of today's proposed rule would require estimation of 
the anticipated market penetration of biobased products based upon many 
assumptions. In addition, because agencies have the option of not 
purchasing designated items if price is ``unreasonable,'' the product 
is not readily available, or the product does not demonstrate necessary 
performance characteristics, certain assumptions may not be valid. 
While facing these quantitative challenges, USDA relied upon a 
qualitative assessment to determine the impacts of today's proposed 
rule. Consideration was also given to the fact that agencies may choose 
not to procure designated items due to unreasonable price.
1. Summary of Impacts
    Today's proposed rule is expected to have both positive and 
negative impacts to individual businesses, including small businesses. 
USDA anticipates that the biobased preferred procurement program will 
provide additional opportunities for businesses and manufacturers to 
begin supplying products under the proposed designated biobased items 
to Federal agencies and their contractors. However, other businesses 
and manufacturers that supply only non-qualifying products and do not 
offer biobased alternatives may experience a decrease in demand from 
Federal agencies and their contractors. USDA is unable to determine the 
number of businesses, including small businesses, that may be adversely 
affected by today's proposed rule. The proposed rule, however, will not 
affect existing purchase orders, nor will it preclude businesses from 
modifying their product lines to meet new requirements for designated 
biobased products. Because the extent to which procuring agencies will 
find the performance, availability and/or price of biobased products 
acceptable is unknown, it is impossible to quantify the actual economic 
effect of the rule. As discussed in Section III of this preamble, USDA 
is requesting comment on how many small entities may be affected by 
this rule and on the nature and extent of that effect.
2. Benefits of the Proposed Rule
    The designation of these items provides the benefits outlined in 
the objectives of section 9002; to increase domestic demand for many 
agricultural commodities that can serve as feedstocks for production of 
biobased products, and to spur development of the industrial base 
through value-added agricultural processing and manufacturing in rural 
communities. On a national and regional level, today's proposed rule 
can result in expanding and strengthening markets for biobased 
materials used in these items.
3. Costs of the Proposed Rule
    Like the benefits, the costs of today's proposed rule have not been 
quantified. Two types of costs are involved: Costs to producers of 
products that will compete with the preferred products and costs to 
Federal agencies to provide procurement preference for the preferred 
products.
    Producers of competing products may face a decrease in demand for 
their products to the extent Federal agencies refrain from purchasing 
their products. However, it is not known to what extent this may occur. 
Pre-award procurement costs for Federal agencies may rise minimally as 
the contracting officials conduct market research to evaluate the 
performance, availability and price reasonableness of preferred 
products before making a purchase.

B. Regulatory Flexibility Act (RFA)

    The RFA, 5 U.S.C. 601-602, generally requires an agency to prepare 
a regulatory flexibility analysis of any rule subject to notice and 
comment rulemaking requirements under the Administrative Procedure Act 
or any other statute unless the agency certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    USDA evaluated the potential impacts of its proposed designation of 
these items to determine whether its actions would have a significant 
impact on a substantial number of small entities. Because the preferred 
procurement program established under section 9002 applies only to 
Federal agencies and their contractors, small governmental (city, 
county, etc.) agencies are not affected. Thus, the proposal, if 
promulgated, will not have a significant economic impact on small 
governmental jurisdictions.
    USDA anticipates that this program will affect entities, both large 
and small, that manufacture or sell biobased products. For example, the 
designation of items for preferred procurement will provide additional 
opportunities for businesses to manufacture and sell biobased products 
to Federal agencies and their contractors. Similar opportunities will 
be provided for entities that supply biobased materials to 
manufacturers.
    The intent of section 9002 is largely to stimulate the production 
of new biobased products and to energize emerging markets for those 
products. Because the program is still in its infancy, however, it is 
unknown how many businesses will ultimately be affected. While USDA has 
no data on the number of small businesses that may choose to develop 
and market biobased products within the items designated by this 
rulemaking, the number is expected to be small. Because biobased 
products represent a small emerging market, only a small percentage of 
all manufacturers, large or small, are expected to develop and market 
biobased products. Thus, the number of small businesses manufacturing 
biobased products affected by this rulemaking is not expected to be 
substantial.
    The preferred procurement program may decrease opportunities for 
businesses that manufacture or sell non-biobased products or provide 
components for the manufacturing of such products. Most manufacturers 
of non-biobased products within the items being proposed for 
designation for preferred procurement in this rule are expected to be 
included under the following NAICS codes: 324191 (petroleum lubricating 
oil and grease manufacturing), 325320 (pesticide and other agricultural 
chemical manufacturing), 325412 (pharmaceutical preparation 
manufacturing), 325510 (paint and coating manufacturing), 325611 (soap 
and other detergent manufacturing), 325612 (polish and other sanitation 
goods manufacturing), 325620 (toilet preparation manufacturing), 325998 
(other miscellaneous chemical products and preparation manufacturing), 
326150 (urethane and other foam product manufacturing), and 314999 
(other miscellaneous textile mill products). USDA obtained information 
on these 10 NAICS categories from the U.S. Census Bureau's Economic 
Census database. USDA found that the Economic Census reports about 
8,092 companies within these 10 NAICS categories and that these 
companies own a total of about 9,255 establishments. Thus, the average 
number of establishments per company is about 1.1. The Census data also 
reported that of the 9,255 individual establishments, about 9,119 (98.5 
percent) have fewer than 500 employees. USDA also found that the 
overall average number of employees per company among these industries 
is

[[Page 71509]]

about 58, with only one segment reporting an average of more than 100 
employees (the pharmaceutical preparation industry segment at about 250 
employees per company). Thus, nearly all of the businesses fall within 
the Small Business Administration's definition of a small business 
(fewer than 500 employees, in most NAICS categories).
    USDA does not have data on the potential adverse impacts on 
manufacturers of non-biobased products within the items being 
designated, but believes that the impact will not be significant. Most 
of the items being proposed for designation in this rulemaking are 
typical consumer products widely used by the general public and by 
industrial/commercial establishments that are not subject to this 
rulemaking. Thus, USDA believes that the number of small businesses 
manufacturing non-biobased products within the items being designated 
and selling significant quantities of those products to government 
agencies affected by this rulemaking to be relatively low. Also, this 
proposed rule will not affect existing purchase orders and it will not 
preclude procuring agencies from continuing to purchase non-biobased 
items when biobased items do not meet the availability, performance, or 
reasonable price criteria. This proposed rule will also not preclude 
businesses from modifying their product lines to meet new 
specifications or solicitation requirements for these products 
containing biobased materials.
    After considering the economic impacts of this proposed 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 proposed 
rule will have a significant impact for RFA purposes, USDA has 
concluded that the effect of the rule will be to provide positive 
opportunities to businesses engaged in the manufacture of these 
biobased products. Purchase and use of these biobased products by 
procuring agencies increase demand for these products and result in 
private sector development of new technologies, creating business and 
employment opportunities that enhance local, regional, and national 
economies.

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

    This proposed 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 13132: Federalism

    This proposed rule does not have sufficient federalism implications 
to warrant the preparation of a Federalism Assessment. Provisions of 
this proposed 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.

E. Unfunded Mandates Reform Act of 1995

    This proposed 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.

F. Executive Order 12372: Intergovernmental Review of Federal Programs

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

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

    Today's proposed 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.

H. Paperwork Reduction Act

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

I. E-Government Act Compliance

    USDA is committed to compliance with the E-Government Act, which 
requires Government agencies, in general, to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. USDA is implementing an electronic 
information system for posting information voluntarily submitted by 
manufacturers or vendors on the products they intend to offer for 
preferred procurement under each designated item. For information 
pertinent to E-Government Act compliance related to this rule, please 
contact Ron Buckhalt at (202) 205-4008.

List of Subjects in 7 CFR Part 2902

    Biobased products, Procurement.

    For the reasons stated in the preamble, the Department of 
Agriculture proposes to amend 7 CFR chapter XXIX as follows:

CHAPTER XXIX--OFFICE OF ENERGY POLICY AND NEW USES

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

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

    Authority: 7 U.S.C. 8102.

    2. Add Sec. Sec.  2902.61 through 2902.74 to subpart B to read as 
follows:

Sec.
2902.61 Animal repellents.
2902.62 Bath products.
2902.63 Bioremediation materials.
2902.64 Compost activators and accelerators.
2902.65 Concrete and asphalt cleaners.
2902.66 Cuts, burns, and abrasions ointments.
2902.67 Dishwashing products.
2902.68 Erosion control materials.
2902.69 Floor cleaners and protectors.
2902.70 Hair care products.
2902.71 Interior paints and coatings.
2902.72 Oven and grill cleaners.
2902.73 Slide way lubricants.
2902.74 Thermal shipping containers.


Sec.  2902.61  Animal repellents.

    (a) Definition. Products used to aid in deterring animals that 
cause destruction to plants and/or property.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 79 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased animal repellents. By that date, Federal agencies 
that have the responsibility for drafting or reviewing specifications 
for items to be procured shall ensure that

[[Page 71510]]

the relevant specifications require the use of biobased animal 
repellents.


Sec.  2902.62  Bath products.

    (a) Definition. Personal hygiene products including bar soaps, 
liquids, or gels that are referred to as body washes, body shampoos, or 
cleansing lotions.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 61 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased bath products. By that date, Federal agencies that 
have the responsibility for drafting or reviewing specifications for 
items to be procured shall ensure that the relevant specifications 
require the use of biobased bath products.


Sec.  2902.63  Bioremediation materials.

    (a) Definition. Dry or liquid solutions (including those containing 
bacteria or other microbes but not including sorbent materials) used to 
clean oil, fuel, and other hazardous spill sites.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 86 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased bioremediation materials. By that date, Federal 
agencies that have the responsibility for drafting or reviewing 
specifications for items to be procured shall ensure that the relevant 
specifications require the use of biobased bioremediation materials.


Sec.  2902.64  Compost activators and accelerators.

    (a) Definition. Products in liquid or powder form designed to be 
applied to compost piles to aid in speeding up the composting process 
and to ensure successful compost that is ready for consumer use.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 95 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased compost activators and accelerators. By that date, 
Federal agencies that have the responsibility for drafting or reviewing 
specifications for items to be procured shall ensure that the relevant 
specifications require the use of biobased compost activators and 
accelerators.


Sec.  2902.65  Concrete and asphalt cleaners.

    (a) Definition. Chemicals used in concrete etching as well as to 
remove petroleum-based soils, lubricants, paints, mastics, organic 
soils, rust, and dirt from concrete, asphalt, stone and other hard 
porous surfaces for commercial, industrial, or residential use.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 70 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased concrete and asphalt cleaners. By that date, 
Federal agencies that have the responsibility for drafting or reviewing 
specifications for items to be procured shall ensure that the relevant 
specifications require the use of biobased concrete and asphalt 
cleaners.


Sec.  2902.66  Cuts, burns, and abrasions ointments.

    (a) Definition. Products designed to aid in the healing and 
sanitizing of scratches, cuts, bruises, abrasions, sun damaged skin, 
tattoos, rashes and other skin conditions.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 84 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased cuts, burns, and abrasions ointments. By that date, 
Federal agencies that have the responsibility for drafting or reviewing 
specifications for items to be procured shall ensure that the relevant 
specifications require the use of biobased cuts, burns, and abrasions 
ointments.


Sec.  2902.67  Dishwashing products.

    (a) Definition. Soaps and detergents used for cleaning and clean 
rinsing of tableware in either hand washing or dishwashing.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 58 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased dishwashing products. By that date, Federal 
agencies that have the responsibility for drafting or reviewing 
specifications for items to be procured shall ensure that the relevant 
specifications require the use of biobased dishwashing products.


Sec.  2902.68  Erosion control materials.

    (a) Definition. Woven or non-woven fiber materials manufactured for 
use on construction, demolition, or other sites to prevent wind or 
water erosion of loose earth surfaces, which may be combined with seed 
and/or fertilizer to promote growth.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 77 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased erosion control materials. By that date, Federal 
agencies that have the responsibility for drafting or reviewing 
specifications for items to be procured shall ensure that the relevant 
specifications require the use of biobased erosion control materials.

[[Page 71511]]

Sec.  2902.69  Floor cleaners and protectors.

    (a) Definition. Cleaning solutions for either direct application or 
use in floor scrubbers for wood, vinyl, tile, or similar hard surface 
floors.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 77 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased floor cleaners and protectors. By that date, 
Federal agencies that have the responsibility for drafting or reviewing 
specifications for items to be procured shall ensure that the relevant 
specifications require the use of biobased floor cleaners and 
protectors.


Sec.  2902.70  Hair care products.

    (a) Definitions. (1) Personal hygiene products specifically 
formulated for hair cleaning and treating applications, including 
shampoos and conditioners.
    (2) Hair care products for which preferred procurement applies are:
    (i) Shampoos. These are products whose primary purpose is cleaning 
hair. Products that contain both shampoos and conditioners are included 
in this subcategory because the primary purpose of these products is 
cleaning the hair.
    (ii) Conditioners. These are products whose primary purpose is 
treating hair to improve the overall condition of hair.
    (b) Minimum biobased content. The minimum biobased content for all 
hair care products shall be based on the amount of qualifying biobased 
carbon in the product as a percent of the weight (mass) of the total 
organic carbon in the finished product. The applicable minimum biobased 
contents for the preferred procurement products are:
    (1) Shampoos--66 percent.
    (2) Conditioners--78 percent.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased hair care products. By that date, Federal agencies 
that have the responsibility for drafting or reviewing specifications 
for items to be procured shall ensure that the relevant specifications 
require the use of biobased hair care products.


Sec.  2902.71  Interior paints and coatings.

    (a) Definition. Pigmented liquids, formulated for use indoors, that 
dry to form a film and provide protection and added color to the 
objects or surfaces to which they are applied.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 67 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased interior paints and coatings. By that date, Federal 
agencies that have the responsibility for drafting or reviewing 
specifications for items to be procured shall ensure that the relevant 
specifications require the use of biobased interior paints and 
coatings.
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying biobased products within this item may, in some 
cases, overlap with the EPA-designated recovered content products: 
Reprocessed latex paints and consolidated latex paints. USDA is 
requesting that manufacturers of these qualifying biobased products 
provide information on the USDA Web site of qualifying biobased 
products about the intended uses of the product, information on whether 
or not the product contains any recovered material, in addition to 
biobased ingredients, and performance standards against which the 
product has been tested. This information will assist Federal agencies 
in determining whether or not a qualifying biobased product overlaps 
with EPA-designated reprocessed latex paints and consolidated latex 
paints and which product should be afforded the preference in 
purchasing.

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

Sec.  2902.72  Oven and grill cleaners.

    (a) Definition. Liquid or gel cleaning agents used on high 
temperature cooking surfaces such as barbeques, smokers, grills, 
stoves, and ovens to soften and loosen charred food, grease, and 
residue.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 66 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased oven and grill cleaners. By that date, Federal 
agencies that have the responsibility for drafting or reviewing 
specifications for items to be procured shall ensure that the relevant 
specifications require the use of biobased oven and grill cleaners.


Sec.  2902.73  Slide way lubricants.

    (a) Definition. Products used to provide lubrication and eliminate 
stick-slip and table chatter by reducing friction between mating 
surfaces, or slides, found in machine tools.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 74 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased slide way lubricants. By that date, Federal 
agencies that have the responsibility for drafting or reviewing 
specifications for items to be procured shall ensure that the relevant 
specifications require the use of biobased slide way lubricants.
    (d) Determining overlap with an EPA-designated recovered content 
product. Qualifying biobased products within this item may, in some 
cases, overlap with the EPA-designated recovered content product: Re-
refined lubricating oils. USDA is requesting that manufacturers of 
these qualifying biobased products provide information on the USDA Web 
site of qualifying biobased products about the intended uses of the 
product, information on whether or not the product contains any 
recovered material, in addition to biobased ingredients, and 
performance

[[Page 71512]]

standards against which the product has been tested. This information 
will assist Federal agencies in determining whether or not a qualifying 
biobased product overlaps with EPA-designated re-refined lubricating 
oils and which product should be afforded the preference in purchasing.

    Note to paragraph (d):  Biobased slide way lubricant products 
within this designated item can compete with similar slide way 
lubricant products with recycled content. Under the Resource 
Conservation and Recovery Act of 1976, section 6002, the U.S. 
Environmental Protection Agency designated re-refined lubricating 
oils 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 247.11(a).

Sec.  2902.74  Thermal shipping containers.

    (a) Definitions. (1) Insulated containers designed for shipping 
temperature-sensitive materials.
    (2) Thermal shipping containers for which preferred procurement 
applies are:
    (i) Durable thermal shipping container. These are thermal shipping 
containers that are designed to be reused over an extended period of 
time.
    (ii) Non-durable thermal shipping containers. These are thermal 
shipping containers that are designed to be used once.
    (b) Minimum biobased content. The minimum biobased content for all 
thermal shipping container products shall be based on the amount of 
qualifying biobased carbon in the product as a percent of the weight 
(mass) of the total organic carbon in the finished product. The 
applicable minimum biobased contents for the preferred procurement 
products are:
    (1) Durable thermal shipping containers--21 percent.
    (2) Non-durable thermal shipping containers--82 percent.
    (c) Preference compliance date.
    (1) Durable thermal shipping containers. Determination of the 
preference compliance date for durable thermal shipping containers is 
deferred until USDA identifies two or more manufacturers of biobased 
durable thermal shipping containers. At that time, USDA will publish a 
document in the Federal Register announcing that Federal agencies have 
one year from the date of publication to give procurement preference to 
biobased durable thermal shipping containers.
    (2) Non-durable thermal shipping containers. Determination of the 
preference compliance date for non-durable thermal shipping containers 
is deferred until USDA identifies two or more manufacturers of biobased 
non-durable thermal shipping containers. At that time, USDA will 
publish a document in the Federal Register announcing that Federal 
agencies have one year from the date of publication to give procurement 
preference to biobased non-durable thermal shipping containers.

Pearlie S. Reed,
Assistant Secretary for Administration, U.S. Department of Agriculture.
[FR Doc. 2010-29191 Filed 11-22-10; 8:45 am]
BILLING CODE 3410-93-P