[Federal Register Volume 76, Number 24 (Friday, February 4, 2011)]
[Proposed Rules]
[Pages 6366-6368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2012]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 76, No. 24 / Friday, February 4, 2011 / 
Proposed Rules  

[[Page 6366]]



DEPARTMENT OF AGRICULTURE

7 CFR Part 2902

RIN 0503-AA39


Designation of Biobased Items for Federal Procurement

AGENCY: Departmental Management, USDA.

ACTION: Proposed rule; amendments.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to 
amend its Guidelines for Designating Biobased Products for Federal 
Procurement, to be consistent with certain statutory changes to section 
9002 of the Farm Security and Rural Investment Act (FSRIA) that were 
effected when the Food, Conservation, and Energy Act (FCEA) of 2008 was 
signed into law on June 18, 2008. Elsewhere in this issue of the 
Federal Register, we are publishing a companion direct final rule. This 
proposed rule will provide a procedural framework to finalize the rule 
in the event we receive significant adverse comment and withdraw the 
direct final rule.

DATES: USDA will accept public comments on these proposed rule 
amendments until April 5, 2011.

ADDRESSES: Please submit any comments, or a notice of intent to submit 
comments, identified by ``Proposed Technical Amendments to BioPreferred 
Program Guidelines'' or Regulatory Information Number (RIN) 0503-AA39, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include RIN number 0503-
AA39 and ``Proposed Technical Amendments to BioPreferred Program 
Guidelines'' 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 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 Changes
IV. Regulatory Information
    A. Executive Order 12866: Regulatory Planning and Review
    B. Executive Order 12630: Governmental Actions and Interference 
With Constitutionally Protected Property Rights
    C. Executive Order 12988: Civil Justice Reform
    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. Authority

    The Guidelines for Designating Biobased Products for Federal 
Procurement (the Guidelines) are established under the authority of 
section 9002 of the Farm Security and Rural Investment Act of 2002 
(FSRIA), 7 U.S.C. 8102, as amended by the Food, Conservation, and 
Energy Act of 2008 (FCEA). (Section 9002 of FSRIA, as amended by the 
FCEA, is referred to in this document as ``section 9002''.)

II. Background

    As originally enacted, section 9002 provides for the preferred 
procurement of biobased products by Federal agencies. USDA proposed 
guidelines for implementing this preferred procurement program on 
December 19, 2003 (68 FR 70730-70746). The Guidelines were promulgated 
on January 11, 2005 (70 FR 1792), and are contained in 7 CFR part 2902, 
``Guidelines for Designating Biobased Products for Federal 
Procurement.''
    The Guidelines identify various procedures Federal agencies are 
required to follow in implementing the requirements of section 9002. 
They were modeled in part on the ``Comprehensive Procurement Guidelines 
for Products Containing Recovered Materials'' (40 CFR part 247), which 
the Environmental Protection Agency (EPA) issued pursuant to the 
Resource Conservation Recovery Act (``RCRA''), 40 U.S.C. 6962.
    On June 18, 2008, the FCEA was signed into law. Section 9001 of the 
FCEA includes several provisions that amend section 9002 of FSRIA. Some 
of these provisions require programmatic changes to the preferred 
procurement program. Other provisions of the FCEA simply clarify 
terminology and requirements for the preferred procurement program. 
USDA is continuing to resolve issues related to implementing the 
programmatic changes and will propose additional amendments to the 
Guidelines at a later date. For example, the Guidelines' definition of 
``biobased product'' will be later revised to include intermediate 
ingredients and feedstocks, pending such programmatic changes. The 
purpose of today's proposed rule amendments is to revise the Guidelines 
(i.e., 7 CFR part 2902) to make them consistent with certain technical 
changes to section 9002 of FSRIA as required by the FCEA.
    This proposed rule is a companion to a direct final rule published 
in the final rules section of this issue of the Federal Register. The 
direct final rule and this companion proposed rule are substantively 
identical. This companion proposed rule provides a procedural framework 
within which the rule may be finalized in the event the direct final 
rule is withdrawn because of any significant adverse comment. The 
comment period for the direct final rule runs concurrently with the 
comment period of this companion proposed rule. Any comments received 
in response to this companion proposed rule will also be considered as 
comments regarding the direct final rule and vice versa. We

[[Page 6367]]

will not provide additional opportunity for comment.
    If we receive any significant adverse comment, we intend to 
withdraw the final rule before its effective date by publishing a 
notice in the Federal Register within 30 days after the comment period 
ends. If we withdraw the direct final rule, all comments received will 
be considered under this companion proposed rule in developing a final 
rule under the usual notice-and-comment procedures.

III. Summary of Changes

    USDA is proposing to amend eight sections of 7 CFR part 2902, as 
described below.

A. 7 CFR 2902.1--Purpose and Scope

    In response to the promulgation of the FCEA, USDA is proposing to 
amend 7 CFR 2902.1(a) to refer to compliance with that law's 
requirements.

B. 7 CFR 2902.2--Definitions

    In response to section 9001 of the FCEA, USDA is proposing to amend 
7 CFR 2902.2 by revising the definition of ``biobased product'' to add 
the word ``including.'' This is to ensure that the Guidelines do not 
violate U.S. trade agreements by applying exclusively to domestic 
agricultural materials. Additionally, a definition for ``FCEA'' has 
been added.

C. 7 CFR 2902.3--Applicability to Federal Procurements

    USDA is proposing to amend 7 CFR 2902.3(c) to state that procuring 
agencies must comply with section 9002(a)(2) regarding the procuring of 
products composed of the highest percentage of biobased content 
practicable. Section 2902.3(c) now incorrectly includes the phrase 
``highest percentage of biobased products.''

D. 7 CFR 2902.4--Procurement Programs

    USDA has revised paragraph (b)(2)(ii) to read ``section 9002'' as 
it refers to both FSRIA and the FCEA.

E. 7 CFR 2902.5--Item Designation

    USDA is proposing to amend 7 CFR 2905.5(c) by adding heating oil to 
the list of exclusions to this program, because it was added to the 
list pursuant to section 9001 of the FCEA.

F. 7 CFR 2902.6--Providing Product Information to Federal Agencies

    In response to a name change, USDA is proposing to amend 7 CFR 
2902.6(a) to refer to the USDA information Web site at ``http://www.biopreferred.gov'' rather than to ``http://www.biobased.oce.usda.gov.''
    Additionally, USDA is proposing to amend 7 CFR 2902.6(b) to include 
a reference to the BioPreferred ``Guidelines for Marketing the 
BioPreferred Program,'' and a link to the Federal Trade Commission 
``Guides for the Use of Environmental Marketing Claims.''

G. 7 CFR 2902.8--Determining Life Cycle Costs, Environmental and Health 
Benefits, and Performance

    USDA is proposing to revise 7 CFR 2902.8 to comply with section 
9002(a)(3)(D), which states that guidelines issued under this paragraph 
may not require a manufacturer or vendor of biobased products, as a 
condition of the purchase of biobased products from the manufacturer or 
vendor, to provide to procuring agencies more data than would be 
required to be provided by manufacturers or vendors offering products 
for sale to a procuring agency, other than data confirming the biobased 
content of a product.

H. 7 CFR 2902.9--Funding for Testing

    In response to a name change, USDA is proposing to amend 7 CFR 
2902.9(b) to refer to the USDA information Web site at ``http://www.biopreferred.gov'' rather than to ``http://www.biobased.oce.usda.gov.''

IV. Regulatory Information

A. Executive Order 12866: Regulatory Planning and Review

    This proposed rule has been reviewed under Executive Order 12866. 
It has been determined that this proposed rule, which amends the 
Guidelines, is not a ``significant regulatory action'' under the terms 
of Executive Order 12866, because its purpose is only to implement 
statutory amendments to section 9002. Therefore, this proposed rule has 
not been reviewed by the Office of Management and Budget (OMB).

B. 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.

C. Executive Order 12988: Civil Justice Reform

    This proposed rule has been reviewed in accordance with Executive 
Order 12988, Civil Justice Reform. This proposed rule does not preempt 
State or local laws, is not intended to have retroactive effect, and 
does not involve administrative appeals.

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 the 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 the Guidelines is 
currently approved under OMB control number 0503-0011.

List of Subjects in 7 CFR Part 2902

    Biobased products, Procurement.
    For the reasons stated in the preamble, the Department of 
Agriculture is proposing to amend 7 CFR chapter XXIX as follows:

[[Page 6368]]

CHAPTER XXIX--OFFICE OF ENERGY

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. Section 2902.1 is revised to read as follows:


Sec.  2902.1  Purpose and scope.

    (a) Purpose. The purpose of the guidelines in this part is to 
assist procuring agencies in complying with the requirements of section 
9002 of the Farm Security and Rural Investment Act of 2002 (FSRIA), 
Public Law 107-171, 116 Stat. 476 (7 U.S.C. 8102), as amended by the 
Food, Conservation, and Energy Act of 2008, Public Law 110-246, 122 
Stat. 1651, as they apply to the procurement of the products designated 
in subpart B of this part.
    (b) Scope. The guidelines in this part designate items that are or 
can be produced with biobased products and whose procurement by 
procuring agencies will carry out the objectives of section 9002.
    3. Section 2902.2 is amended by revising the definition of 
``biobased product'' and adding a definition for ``FCEA'' to read as 
follows:


Sec.  2902.2  Definitions.

* * * * *
    Biobased product. A product determined by USDA to be a commercial 
or industrial product (other than food or feed) that is composed, in 
whole or in significant part, of biological products, including 
renewable domestic agricultural materials and forestry materials.
* * * * *
    FCEA. The Food, Conservation and Energy Act of 2008, Public Law 
110-246.
* * * * *
    4. Section 2902.3 is amended by revising paragraph (c) to read as 
follows:


Sec.  2902.3  Applicability to Federal procurements.

* * * * *
    (c) Procuring products composed of the highest percentage of 
biobased content. Section 9002(a)(2) requires procuring agencies to 
procure designated items composed of the highest percentage of biobased 
content practicable or such products that comply with the regulations 
issued under section 103 of Public Law 100-556 (42 U.S.C. 6914b-1), 
consistent with maintaining a satisfactory level of competition, 
considering these guidelines. Procuring agencies may decide not to 
procure such products if they are not reasonably priced or readily 
available or do not meet specified or reasonable performance standards.
* * * * *
    5. Section 2902.4 is amended by revising paragraph (b)(2)(ii) to 
read as follows:


Sec.  2902.4  Procurement programs.

* * * * *
    (b) * * *
    (2) * * *
    (ii) A policy of setting minimum biobased products content 
specifications in such a way as to assure that the biobased products 
content required is consistent with section 9002 and the requirements 
of the guidelines in this part except when such items:
    (A) Are not available within a reasonable time;
    (B) Fail to meet performance standards for the use to which they 
will be put, or the reasonable performance standards of the Federal 
agency; or
    (C) Are available only at an unreasonable price.
* * * * *
    6. Section 2902.5 is amended by revising paragraph (c)(1) to read 
as follows:


Sec.  2902.5  Item designation.

* * * * *
    (c) Exclusions. (1) Motor vehicle fuels, heating oil, and 
electricity are excluded by statute from this program.
* * * * *
    7. Section 2902.6 is amended by revising the first sentence of 
paragraph (a) and by revising paragraph (b) to read as follows:


Sec.  2902.6  Providing product information to Federal agencies.

    (a) Informational Web site. An informational USDA Web site 
implementing section 9002 can be found at: http://www.biopreferred.gov. 
* * *
    (b) Advertising, labeling and marketing claims. Manufacturers and 
vendors are reminded that their advertising, labeling, and other 
marketing claims, including claims regarding health and environmental 
benefits of the product, must conform to the Federal Trade Commission 
``Guides for the Use of Environmental Marketing Claims,'' 16 CFR part 
260 (see: http://www.access.gpo.gov/nara/cfr/waisidx_08/16cfr260_08.html). For further requirements, click on the link to the 
''Guidelines for Marketing the BioPreferred Program.''
    8. Section 2902.8 is amended by revising paragraph (a) to read as 
follows:


Sec.  2902.8  Determining life cycle costs, environmental and health 
benefits, and performance.

    (a) Providing information on life cycle costs and environmental and 
health benefits. Federal agencies may not require manufacturers or 
vendors of biobased products to provide to procuring agencies more data 
than would be required to be provided by other manufacturers or vendors 
offering products for sale to a procuring agency, other than data 
confirming the biobased contents of the products, as a condition of the 
purchase of biobased products from the manufacturer or vendor.
* * * * *
    9. Section 2902.9 is amended by revising paragraph (b)(1) to read 
as follows:


Sec.  2902.9  Funding for testing.

* * * * *
    (b) * * *
    (1) Subject to the availability of funds and paragraph (a) of this 
section, USDA will announce annually the solicitation of proposals for 
cost sharing for life cycle costs, environmental and health benefits, 
and performance testing of biobased products in accordance with the 
standards set forth in Sec.  2902.8 to carry out this program. 
Information regarding the submission of proposals for cost sharing also 
will be posted on the USDA informational Web site, http://www.biopreferred.gov.
* * * * *

    Dated: January 25, 2011.
Pearlie S. Reed,
Assistant Secretary for Administration, U.S. Department of Agriculture.
[FR Doc. 2011-2012 Filed 2-3-11; 8:45 am]
BILLING CODE 3410-93-P