[Federal Register Volume 76, Number 24 (Friday, February 4, 2011)]
[Rules and Regulations]
[Pages 6319-6322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2017]


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

DEPARTMENT OF AGRICULTURE

7 CFR Part 2902

RIN 0503-AA39


Designation of Biobased Items for Federal Procurement

AGENCY: Departmental Management, USDA.

ACTION: Direct final rule.

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

SUMMARY: The U.S. Department of Agriculture (USDA) is amending 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. The amendment is issued as an immediately 
effective final rule. Elsewhere in this issue of the Federal Register, 
we are publishing a companion proposed rule under USDA's usual 
procedure for notice and comment to provide a procedural framework to 
finalize the rule in the event we receive significant adverse comment 
and withdraw this direct final rule.

DATES: This rule is effective June 6, 2011. Submit comments on the 
direct final rule by April 5, 2011. If we receive any timely 
significant adverse comment,

[[Page 6320]]

we will withdraw this final rule in part or in whole by publication of 
a document in the Federal Register within 30 days after the comment 
period ends.

ADDRESSES: Please submit any comments, or a notice of intent to submit 
comments, identified by ``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 this rule 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.
    USDA believes that this rule is appropriate for direct final 
rulemaking because it responds to a statutory amendment that became 
effective June 18, 2008, and because it codifies USDA policy as already 
stated in the first final rule designating biobased products. Elsewhere 
in this issue of the Federal Register, however, USDA is publishing a 
companion proposed rule that is identical in substance to this direct 
final rule. The 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 this direct final rule runs concurrently with the 
comment period of the companion proposed rule. Any comments received in 
response to the companion proposed rule will also be considered as 
comments regarding this direct final rule.
    If we receive any significant adverse comment, we intend to 
withdraw this 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 the companion proposed rule in developing a final 
rule under the usual notice-and-comment procedures.

III. Summary of Changes

    USDA is amending 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 amending 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 amending 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 amending 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.

[[Page 6321]]

E. 7 CFR 2902.5--Item Designation

    USDA is amending 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 amending 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 amending 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 revising 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 amending 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 rule has been reviewed under Executive Order 12866. It has 
been determined that this 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 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 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 rule has been reviewed in accordance with Executive Order 
12988, Civil Justice Reform. This rule does not preempt State or local 
laws, is not intended to have retroactive effect, and does not involve 
administrative appeals.

D. Executive Order 13132: Federalism

    This rule does not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment. Provisions of this 
rule will not have a substantial direct effect on States or their 
political subdivisions or on the distribution of power and 
responsibilities among the various government levels.

E. Unfunded Mandates Reform Act of 1995

    This rule contains no Federal mandates under the regulatory 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal governments, 
or the private sector. Therefore, a statement under section 202 of UMRA 
is not required.

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 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 amending 7 CFR chapter XXIX as follows:

CHAPTER XXIX--OFFICE OF ENERGY

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

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

    Authority:  7 U.S.C. 8102.


0
2. 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.

0
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, Pub. L. 110-
246.
* * * * *

0
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

[[Page 6322]]

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.
* * * * *

0
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.
* * * * *

0
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.
* * * * *

0
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.''

0
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.
* * * * *

0
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. 2011-2017 Filed 2-3-11; 8:45 am]
BILLING CODE 3410-93-P