[Federal Register Volume 77, Number 65 (Wednesday, April 4, 2012)]
[Rules and Regulations]
[Pages 20281-20291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8068]
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Rules and Regulations
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Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Rules
and Regulations
[[Page 20281]]
DEPARTMENT OF AGRICULTURE
Office of Procurement and Property Management
7 CFR Part 3201
RIN 0599-AA14
Designation of Product Categories for Federal Procurement
AGENCY: Office of Procurement and Property Management, USDA.
ACTION: Final rule.
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SUMMARY: In compliance with the February 21, 2012 Presidential
Memorandum ``Driving Innovation and Creating Jobs In Rural America
through Biobased and Sustainable Product Procurement,'' the U.S.
Department of Agriculture (USDA) is amending the Guidelines for
Designating Biobased Products for Federal Procurement, to add 13
sections to designate product categories within which biobased products
will be afforded Federal procurement preference, as provided for under
section 9002 of the Farm Security and Rural Investment Act of 2002, as
amended by the Food, Conservation, and Energy Act of 2008 (referred to
in this document as ``section 9002''). USDA is also establishing
minimum biobased contents for each of these product categories.
DATES: This rule is effective May 4, 2012.
FOR FURTHER INFORMATION CONTACT: Ron Buckhalt, USDA, Office of
Procurement and Property Management, Room 361, Reporters Building, 300
7th St. SW., Washington, DC 20024; email: [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 Changes
IV. Discussion of Public Comments
V. Regulatory Information
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Regulatory Flexibility Act (RFA)
C. Executive Order 12630: Governmental Actions and Interference
With Constitutionally Protected Property Rights
D. Executive Order 12988: Civil Justice Reform
E. Executive Order 13132: Federalism
F. Unfunded Mandates Reform Act of 1995
G. Executive Order 12372: Intergovernmental Review of Federal
Programs
H. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
I. Paperwork Reduction Act
J. E-Government Act
K. Congressional Review Act
I. Authority
These product categories are designated under the authority of
section 9002 of the Farm Security and Rural Investment Act of 2002
(FSRIA), as amended by the Food, Conservation, and Energy Act of 2008
(FCEA), 7 U.S.C. 8102 (referred to in this document as ``section
9002'').
II. Background
As part of the BioPreferred Program, USDA published, on September
14, 2011, a proposed rule in the Federal Register (FR) for the purpose
of designating a total of 13 product categories for the preferred
procurement of biobased products by Federal agencies (referred to
hereafter in this final rule as the ``preferred procurement program'').
The proposed rule can be found at 76 FR 56884. This rulemaking is
referred to in this preamble as Round 8 (RIN 0599-AA14).
In the proposed rule, USDA proposed designating the following 13
product categories for the preferred procurement program: Air
fresheners and deodorizers; asphalt and tar removers; asphalt
restorers; blast media; candles and wax melts; electronic components
cleaners; floor coverings (non-carpet); foot care products; furniture
cleaners and protectors; inks; packaging and insulating materials;
pneumatic equipment lubricants; and wood and concrete stains.
Today's final rule designates the proposed product categories
within which biobased products will be afforded Federal procurement
preference. USDA has determined that each of the product categories
being designated under today's rulemaking meets the necessary statutory
requirements; that they are being produced with biobased products; and
that their procurement will carry out the following objectives of
section 9002: To improve demand for biobased products; to spur
development of the industrial base through value-added agricultural
processing and manufacturing in rural communities; and to enhance the
Nation's energy security by substituting biobased products for products
derived from imported oil and natural gas.
When USDA designates by rulemaking a product category (a generic
grouping of products) for preferred procurement under the BioPreferred
Program, manufacturers of all products under the umbrella of that
product category, that meet the requirements to qualify for preferred
procurement, can claim that status for their products. To qualify for
preferred procurement, a product must be within a designated product
category and must contain at least the minimum biobased content
established for the designated item. With the designation of these
specific product categories, USDA invites the manufacturers and vendors
of qualifying products to provide information on the product, contacts,
and performance testing for posting on its BioPreferred Web site,
http://www.biopreferred.gov. Procuring agencies will be able to utilize
this Web site as one tool to determine the availability of qualifying
biobased products under a designated product category. Once USDA
designates a product category, procuring agencies are required
generally to purchase biobased products within the designated product
category where the purchase price of the procurement product exceeds
$10,000 or where the quantity of such products or of functionally
equivalent products purchased over the preceding fiscal year equaled
$10,000 or more.
Subcategorization. Within today's final rule, USDA has
subcategorized one of the product categories. That product
[[Page 20282]]
category is inks and the subcategories are: Specialty inks used to add
extra characteristics or features to printed material; inks used for
coated paper, paperboard, plastic, and foil (sheetfed--color and
sheetfed--black); inks used in photocopying and laser machines (printer
toner--<25 pages per minute (ppm) and printer toner-->=25 ppm); and
inks used primarily in newsprint (news).
Minimum Biobased Contents. The minimum biobased contents being
established with today's rulemaking are based on products for which
USDA has biobased content test data. Because the submission of product
samples for biobased content testing is on a strictly voluntary basis,
USDA was able to obtain samples only from those manufacturers who
volunteered to invest the resources required to submit the samples. In
today's final rule, the minimum biobased contents for the ``inks
(printer toner-->=25 ppm)'' and the ``inks (news)'' subcategories of
the inks product category are based on a single tested product within
each subcategory. Based on discussions with industry stakeholders, USDA
believes that the tested products are representative of other products
within the subcategories. Given that 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. USDA will continue
to solicit information on these subcategories and if additional data on
the biobased contents for products within these designated product
subcategories is obtained, USDA will evaluate whether the minimum
biobased content should be revised.
Overlap with EPA's Comprehensive Procurement Guideline program for
recovered content products under the Resource Conservation and Recovery
Act (RCRA) Section 6002. This final rule designates three product
categories for Federal preferred procurement for which there may be
overlap with an EPA-designated recovered content product. The first is
blast media, which may overlap with the EPA-designated recovered
content product ``Miscellaneous products--blasting grit.'' The second
is floor coverings (non-carpet), which may overlap with the EPA-
designated recovered content product ``Floor tiles.'' The third is
pneumatic equipment lubricants, which may overlap with the EPA-
designated recovered content product ``Re-refined lubricating oils.''
EPA provides recovered materials content recommendations for these
recovered content products in Recovered Materials Advisory Notice
(RMAN) I. The RMAN recommendations for these CPG products can be found
by accessing EPA's Web site 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.
Other Preferred Procurement Programs. Federal procurement officials
should also note that biobased products may be available for purchase
by Federal agencies through the AbilityOne Program (formerly known as
the Javits-Wagner-O'Day (JWOD) program). Under this program, members of
organizations including the National Industries for the Blind (NIB) and
the National Institute for the Severely Handicapped (NISH) offer
products and services for preferred procurement by Federal agencies. A
search of the AbilityOne Program's online catalog (www.abilityone.gov)
indicated that four of the items being designated today (air fresheners
and deodorizers, blast media, floor coverings, and inks (printer
toner--<25 ppm)) are available through the AbilityOne Program. While
there is no specific product within these product categories identified
in the AbilityOne online catalog as being a biobased product, it is
possible that such biobased products are available or will be available
in the future. Also, because additional categories of products are
frequently added to the AbilityOne Program, it is possible that
biobased products within other product categories being designated
today may be available through the AbilityOne Program in the future.
Procurement of biobased products through the AbilityOne Program would
further the objectives of both the AbilityOne Program and the preferred
procurement program.
Outreach. To augment its own research, USDA consults with industry
and Federal stakeholders to the preferred procurement program during
the development of the rulemaking packages for the designation of
product categories. USDA requests stakeholder input in gathering
information used in determining the order of product category
designation and in identifying: Manufacturers producing and marketing
products that fall within a product category proposed for designation;
performance standards used by Federal agencies evaluating products to
be procured; and warranty information used by manufacturers of end user
equipment and other products with regard to biobased products.
Future Designations. In making future designations, USDA will
continue to conduct market searches to identify manufacturers of
biobased products within product categories. USDA will then contact the
identified manufacturers to solicit samples of their products for
voluntary submission for biobased content testing. Based on these
results, USDA will then propose new product categories for designation
for preferred procurement.
USDA has developed a preliminary list of product categories for
future designation and has posted this preliminary list on the
BioPreferred Web site. While this list presents an initial
prioritization of product categories for designation, USDA cannot
identify with certainty which product categories will be presented in
each of the future rulemakings. In response to comments from other
Federal agencies, USDA intends to give increased priority to those
product categories that contain the highest biobased content. In
addition, as the program matures, manufacturers of biobased products
within some industry segments have become more responsive to USDA's
requests for technical information than those in other segments. Thus,
product categories with high biobased content and for which sufficient
technical information can be obtained quickly may be added or moved up
on the prioritization list.
III. Summary of Changes
As a result of the public comments received on the proposed rule,
USDA has made changes in finalizing the proposed rule. These changes
are summarized in the remainder of this section. A summary of each
comment received, and USDA's response to the comment, is presented in
section IV.
In the final rule, USDA has changed the name of one product
category being designated. That product category was proposed as
``packaging and insulating materials,'' but is being changed in the
final rule to ``packing and insulating materials.'' After the proposed
rule was published, USDA learned of a potential
[[Page 20283]]
issue involving the name and description of the proposed product
category. It was USDA's intent that the product category would include
``pre-formed or molded materials used to hold package contents in place
during shipping'' (76 FR 56894, September 14, 2011). As an example of
the types of products intended to be included in the proposed category,
USDA referred to the foam ``peanuts'' that are used to protect and
prevent the movement of products that are placed in cardboard or other
types of containers for shipment. It was not USDA's intent that the
product category would include the outside container (e.g., the
cardboard box) into which the ``peanuts'' or molded foam packing
materials are placed. USDA has concluded that the term ``packaging'' is
too broad for the purpose of defining the product category and is
likely to be interpreted as including the outside box or container into
which ``packing'' material is placed. For this reason, USDA is
finalizing the product category with the name ``packing and insulating
materials.''
In addition to revising the name of the proposed product category
to ``packing and insulating materials,'' USDA has lowered the minimum
biobased content for this product category to 74 percent. At proposal,
the recommended minimum biobased content was 82 percent and was based
on a product with a tested biobased content of 85 percent. After the
proposed rule was published, the manufacturer of this particular
product re-tested the biobased content of the product as part of the
application process to obtain certification to use the USDA Certified
Biobased Product label. The results of the re-test showed a biobased
content of 77 percent. USDA does not have any additional information to
indicate which of the testing results (85 percent biobased or 77
percent biobased) are more accurate. Because of this uncertainty, and
because the difference between the two values is not large, USDA
decided that it was reasonable to use the lower tested value to
establish the minimum biobased content in the final rule. Therefore,
the minimum biobased content for the ``packing and insulating
materials'' product category in the final rule is 74 percent (the 77
percent tested value minus 3 percentage points to account for
variability in the testing procedure).
USDA has also revised the minimum biobased content for the
``furniture cleaners and protectors'' product category from the
proposed level of 77 percent to 71 percent in the final rule. At the
time the proposed minimum biobased content for this product category
was established, USDA had test data on six products. The biobased
content of these six furniture cleaners and protectors ranged from 9
percent to 100 percent, as follows: 9, 28, 80, 91, 98, and 100 percent.
As explained in the preamble to the proposed rule (76 FR 56897), USDA
decided to set the minimum biobased content for the product category at
77 percent, based on the product with the tested biobased content of 80
percent.
After the proposed rule was published, USDA received biobased
content data on an additional product within this product category. The
biobased content of this product is 74 percent, which is 6 percentage
points lower than the product originally selected as the basis for the
minimum biobased content. With the new data point included, the data
fall into two obvious groups, with a significant gap between them. The
two lowest data points are 9 and 28 percent and the five highest data
points are 74, 80, 91, 98, and 100 percent. USDA believes it is
reasonable to set the minimum biobased content in the final rule based
on the product with the 74 percent biobased content. Therefore, the
minimum biobased content for the ``furniture cleaners and protectors''
product category in the final rule is 71 percent (the 74 percent tested
value minus 3 percentage points to account for variability in the
testing procedure). As is the case for all product categories, USDA
will continue to gather and consider new biobased content testing data.
When found to be necessary, USDA will revise the minimum biobased
content of product categories through established notice and comment
rulemaking procedures.
IV. Discussion of Public Comments
USDA solicited comments on the proposed rule for 60 days ending on
November 14, 2011. USDA received eight comments by that date. Four of
the comments were from individual citizens, two were from trade groups,
one was from a biobased product manufacturer, and one was from a
Federal agency commenter. The comments are presented below, along with
USDA's response, and are grouped by the product categories to which
they apply.
Blast Media
Comment: One trade group commenter recommended that USDA reconsider
designating the blast media product category for Federal procurement.
The commenter stated that they do not believe that biobased abrasives
are always the best choice when selecting an environmentally friendly
abrasive because of performance limitations that can cause decreased
coating life expectancies. The commenter explained that the selection
of an abrasive for a particular project is based on a life cycle
assessment that includes an examination of the economic and
environmental health and safety impacts. The commenter presented
information on the properties of an abrasive that must be considered,
including the shape, hardness, durability, density, and size of the
abrasive. The commenter also presented information on the relationship
between these properties of the abrasive and the surface profile that
is created on the substrate when a variety of abrasive materials are
used. The commenter stated that The Society for Protective Coatings
recommends biobased abrasives for removing single layers of paint, fine
scale and other surface contaminants when there is no technical need to
alter the metal substrate. The commenter further stated that when it is
necessary to meet a surface preparation standard to remove multiple
layers of paint and produce an acceptable surface profile for optimal
coating adhesion, harder abrasives need to be specified. According to
the commenter, biobased abrasives are environmentally friendly, but are
well below the minimum hardness value needed to achieve an acceptable
surface profile for protecting industrial structures and typically are
not reusable. The commenter concluded by saying that using biobased
abrasives in lieu of standard abrasives will result in coating system
failure or, at best, will significantly reduce the overall life
expectancy and sustainability of the coating due to poor surface
profile and coating adhesion.
Response: USDA agrees with the commenter's general position that
traditional abrasives are needed in many applications. The commenter
mentions industrial structures and the U.S. Navy fleet as examples of
applications where, according to the commenter, biobased blast media
will not meet surface coating specifications and performance
requirements. USDA recognizes that blast media is a product category
with wide-ranging performance demands, depending on the type and end
use of the substrate to which the blast media is being applied. USDA
points out that the intent of designating biobased blast media for
Federal procurement preference is not to eliminate the use of
traditional blast media in cases such as those mentioned by the
commenter. The intent of the designation is, rather, to require that
Federal agencies give
[[Page 20284]]
preference to biobased blast media in those cases where such blast
media meet the agency's performance requirements as well as
availability and cost considerations. USDA recognizes that performance
is the key factor in making purchasing decisions among the various
types of products within most product categories. However, USDA
believes that many situations exist where blast media are used to clean
or prepare substrates that are less durable than structural steel. In
many of these applications, biobased blast media may perform better
than the more abrasive metallic types of media described by the
commenter. Thus, USDA believes that the designation of biobased blast
media is consistent with the goals and objectives of the BioPreferred
program and has finalized the designation in today's rulemaking.
Floor Coverings (Non-Carpet)
Comment: One biobased product manufacturer requested that their
product be added as a subcategory under the floor coverings product
category. The commenter explained that their product is manufactured
using an innovative thermal technology that results in wood that has
many advantages over traditional chemically treated wood. The commenter
stated that their product can be used in any flooring application and
is non-toxic, dimensionally stable, and has a 30-year warranty against
rot. The commenter also stated that their product is environmentally
preferable to most other wood products because it is manufactured
without the use of toxic chemicals and is a 100 percent biobased
product.
Response: USDA agrees with the commenter that their product has
many beneficial attributes. USDA also believes that, in some cases,
this manufacturer's product may be a very desirable option for use as a
floor covering. However, USDA does not believe that the creation of a
separate subcategory under the floor covering (non-carpet) product
category is justified.
As explained in the preamble to the proposed rule, USDA intends to
establish subcategories based on the existence of ``groups'' of
products with different performance requirements or different
functional uses. In the case of floor coverings, USDA did not identify
specific performance requirements that the commenter's product could
meet that could not be met by one or more of the other available
biobased products.
Another consideration for establishing subcategories is the
presence of a product or group of products with some unique desirable
characteristics not found in the other products and whose biobased
content differs considerably from other products in the category. The
91 percent minimum biobased content that has been established for the
product category is sufficiently high that USDA does not believe it is
reasonable to create a subcategory based on biobased content
differences. The 91 percent minimum biobased content ensures that
products that qualify for the procurement preference are truly
legitimate biobased products with only minimal non-biobased
ingredients.
In summary, USDA believes that the floor covering (non-carpet)
product category is defined such that Federal agencies may select from
several different biobased alternative products. The decision on which
biobased products to purchase will be based on a range of factors
including durability, appearance, required maintenance, and cost. While
the commenter's product may be a very competitive product within the
floor covering category, USDA does not believe that creating a separate
subcategory for it is justified.
Inks
Comment: Four commenters stated that they supported USDA efforts to
encourage the use of biobased printing inks and toners. The commenters
stated that the use of such products will increase the demand for
agricultural products grown domestically, decrease our dependence on
foreign oil, positively affect the U.S. economy, and protect our
environment for future generations of Americans.
Response: USDA agrees with the commenters and thanks them for their
support of the BioPreferred program.
Comment: One commenter representing a coalition of trade groups
stated that USDA needs to withdraw the proposed designation of the inks
product category and conduct a more detailed and thorough review to
insure that the correct biobased contents for inks are recommended, as
several critical elements in the review are deficient. The commenter
stated that USDA has not completed a thorough investigation into
existing Federal requirements and industry standards for biobased
printing inks. In addition, the commenter stated that USDA has set
limits without a complete understanding of the technical issues
associated with biobased content in different types of printing inks.
The commenter stated that another concern not adequately addressed is
the financial and performance implications of requiring the use of inks
with high biobased content. The commenter recommends that USDA become
familiar with the existing regulation that sets minimum standards for
biobased materials in printing inks used in government agencies. The
commenter stated that this regulation, the Vegetable Ink Printing Act
of 1994, requires that Federal agencies use lithographic inks with a
specified vegetable oil content.
The commenter also stated that USDA should look to existing
industry standards for inks with biobased material content. The
commenter noted that one such program is SoySeal, developed by the
American Soybean Association (ASA), which has set minimum soy oil
contents for a variety of different classes of inks. The commenter
stated that ASA set these standards based on their research on
incorporating soy oil into various types of printing inks, their unique
properties, and testing of the formulations. The percentages are
expressed as the percentage of soy oil out of the total formula weight
of the inks.
The commenter supports the total formula weight approach taken by
the SoySeal program and recommends that USDA also adopt this approach.
The commenter stated that the approach taken by SoySeal to define soy
content limits by weight percent is readily understood in the industry
and should be adopted by USDA. The commenter stated that this method
allows for straightforward determination of soy or biobased content,
based on ink formulation knowledge, instead of requiring expensive
testing using the ASTM D6866 standard. The commenter stated that the
ASTM test method can only be conducted by one lab and costs $600 per
sample. The commenter stated that USDA did not specify in its proposal
how the sampling for the test is to be conducted. According to the
commenter, it is not clear if a representative formulation can be
tested or if each color of each ink is to be tested and, since there
are literally thousands of possible ink formulations, testing each and
every ink is economically infeasible. The commenter stated that using a
total ink formulation approach certified by the ink manufacturer
provides a much more economical approach. Also, according to the
commenter, it is unclear how the biobased content guidelines set by
USDA compare to those set by the SoySeal program because the two
systems (percent weight versus percent of carbonaceous material that is
biobased) are not easily comparable. The commenter asked, for example,
if a black news ink contains 40 percent biobased material by weight,
would it meet USDA's recommendations if tested by the ASTM standard?
The commenter
[[Page 20285]]
stated that, ideally, USDA's biobased content recommendations should
mirror those recommended by the SoySeal program, as inks with these soy
oil contents have been tested and proven to be effective.
The commenter explained that while the proposed offset ink limits
may be achievable for four color process inks (i.e., cyan, yellow,
magenta, and black), the limits will certainly have a negative impact
on various blending systems used. According to the commenter, many
printing inks are specially blended to make unique colors, often
referred to as ``spot colors'' or by the trade name ``Pantone Matching
System,'' which are required to match exact colors. The commenter
stated that the limits set have the potential to impact these inks, as
well as Ultraviolet, Electron Beam, and many metallic and florescent
inks that have unique properties that may require higher non-biobased
content.
The commenter also stated that the category of specialty inks used
in the study is far too vaguely defined and the examples given are too
diverse to be listed together. In addition, according to the commenter,
the imposition of a level of 66 percent biobased material is extremely
demanding for some of these applications. For example, a typical
scratch and sniff ink might contain 20 percent of encapsulated
fragrance, none of which is biobased. This only leaves room for 14
percent of other non-biobased materials such as pigment, binders and
additives. The commenter stated that these materials, many of which are
carbonaceous, cannot be substituted for biobased materials and their
presence in these inks will make it nearly impossible to meet the 66
percent biobased content proposed in this program.
The commenter stated that, for toner ink systems, biobased toners
are not commonly available in the U.S. market. Currently, biobased
xerographic inks make up less than 1 percent of the U.S. market, and
are not available for xerographic colored inks.
The commenter also stated that, in terms of cost and performance,
it must be recognized that there are significant issues associated with
high levels of biobased materials in printing inks. According to the
commenter, these types of ink are almost always significantly more
expensive than their non-biobased alternatives and, even with the
current high costs of petroleum-based oils, soy oil still commands
close to a 50 percent premium. In addition, the commenter stated that
it is common knowledge within the graphic arts community that biobased
often results inferior technical performance [color reproduction] and
reduced press speeds to allow for longer drying times. The commenter
explained that solvent based inks cannot be easily replaced with bio-
derived oils because the oils do not volatilize quickly enough.
The commenter stated that there is no indication that an assessment
of the cost difference between conventional and biobased inks was
completed and that, in order to create biobased purchasing preferences,
USDA needs to quantify the environmental benefit of using a biobased
ink and assure that it is cost effective.
The commenter stated that many of the underlying assumptions used
by USDA to determine the specific limits and ink types in the proposal
are not transparent or justified. The commenter asked, as an example,
of the 148 biobased inks identified by USDA, how was a sample size of
19 selected to be tested for biobased content by the ASTM standard?
Also, of the biobased inks identified, how was a sample size of 3 to be
analyzed by BEES determined? The commenter stated that, given the large
number of inks that are on the market, it is not clear how USDA
concluded that its work was representative or statistically
significant. The commenter stated that they do not believe that these
sample sizes are large enough to show significant findings. The
commenter also stated that it is unclear if the sampling was random, as
should be the case, or if the inks tested were considered to be state-
of-the-art biobased inks. According to the commenter, one of the
difficulties in interpreting the results of the study was that the
units used to complete the BEES assessment were unclear, as the sample
size was identified as 300 square inches, but not if those 300 square
inches were actual ink, or if it was 300 square inches of printed
material.
Another concern expressed by the commenter is the use of the
Building for Environmental and Economic Sustainability (BEES) model for
testing the environmental impact of printing ink. The commenter stated
that USDA does not indicate how a software program designed to assess
the impact of building materials is applicable to an industrial/
consumer commodity such as ink. The commenter also stated that the
study doesn't indicate that a comparison of the BEES impact of
conventional and biobased inks was conducted and that while it is
assumed that a material with more biobased content would be better,
this needs to actually be confirmed.
The commenter provided a summary of recommendations on the proposed
biobased designations for inks, as follows:
1. Refine the categories to better cover the various types of
printing inks used from a broad perspective such as process and spot or
inks as well as specific applications such as heatset web offset
lithographic, gravure (water & solvent), and flexographic (water &
solvent). Energy curable (ultraviolet and electron beam), water-based
and inkjet inks should have their own, separate categories.
2. Refine the specialty ink category. The current Specialty ink
category is much too broad to be able to assign a biobased content
across the board. While some specialty inks could be formulated to
contain the 66 percent, many others cannot.
3. Utilize the SoySeal limits as the basis for the biobased content
guidelines.
4. Revise the standards to indicate the total portion of the ink
that is biobased, rather than the total carbonaceous portion of the ink
that is biobased. This will allow for more cost effective determination
of biobased content based on ink formulation information, and is
already the accepted standard for comparing biobased content in
printing inks.
5. Allow for the ink manufacturer to certify the biobased content
based on formulation and not testing using the ASTM D6866 test.
6. Biobased inks, as proposed, should be evaluated to determine if
they can meet basic performance standards and be required to meet the
same performance standards as conventional inks. Manufacturers should
not be given the opportunity to gain a market advantage based on
production of inks with high biobased content but a poor image quality.
7. Conduct a true economic impact analysis comparing the costs of
the proposed biobased materials as compared to conventional materials.
8. To better understand the life-cycle cost section, identify the
``usage unit'' for which price is specified.
9. To better understand the BEES results, a functional unit of 300
square inches was identified. Please clarify if this is 300 square
inches of ink, or 300 square inches of printed material.
Response: USDA appreciates the interest and concerns expressed by
the commenter in the inks product category. Unfortunately, many of the
comments and recommendations made by the commenter would require USDA
to conduct studies and analyses that are beyond the scope of the
BioPreferred program's mandate to designate product categories for
federal procurement
[[Page 20286]]
preference. Under section 9002, USDA is directed to request from
biobased product manufacturers the technical information that is used
in the designation process, but is not given the authority to require
that such information be supplied. Thus, USDA must rely on the
voluntary submittal of technical information from product
manufacturers. During the development of the proposed rule, USDA
requested information from many soy ink manufacturers but received
information from only a few. USDA developed the proposed rule based on
the information available from those biobased ink manufacturers who
chose to voluntarily supply it. Generally, the procedures employed, and
the types and level of detail of the analyses performed, for the inks
product category were the same as for the more than 60 product
categories designated to date. USDA will, however, welcome the
opportunity to meet with this commenter and any other representatives
of the inks product category to discuss ways in which today's final
rule can be improved.
With regard to the commenter's points dealing with the Vegetable
Ink Printing Act, USDA recognizes that many federal agencies' printing
operations are covered by this Act. USDA points out that the
designation of biobased products under section 9002 is not meant to
replace or revise the requirements of the Vegetable Ink Printing Act.
Instead, the designation under section 9002 is meant to extend the use
of biobased printing inks to those printing operations that are not
subject to the Vegetable Ink Printing Act. Under today's final rule,
such printing operations must be performed using complying biobased
inks to the extent that biobased inks meeting the performance and cost
criteria are available.
The commenter also presented numerous points regarding the
methodology used to determine biobased content and the levels set as
the minimum biobased contents in the proposed rule. USDA acknowledges
that the biobased content determined by ASTM D6866 does not directly
compare to soy content determinations using the SoySeal procedure.
However, the use of ASTM D6866 to determine biobased content has been
consistently required for all designated product categories and USDA
believes it is appropriate for the inks product category as well. As
pointed out by the commenter, inks are typically formulated from
solvents, pigments, binders, and other additives. USDA believes that
using ASTM D6866 to determine the biobased content of inks will
encourage the development of biobased versions of each type of
ingredient in the ink. As for the number of inks tested for biobased
content and the resulting proposed minimum biobased contents, USDA
relied on its standard methodology of requesting that manufacturers
submit samples for testing and then evaluating the results of the
testing to determine the proposed minimum biobased content (see
``Minimum Biobased Contents'' discussion in the proposal preamble at 76
FR 56885). Additional information regarding the biobased content
testing can also be found in the preamble to proposed rule at 76 FR
56896. USDA also notes that the BioPreferred program Guidelines (7 CFR
3201.7) allows that ``products that are essentially the same
formulation'' need not be tested individually.
The commenter offered recommendations as to how USDA should
redefine the inks subcategories in the final rule. USDA developed the
proposed inks subcategories based on discussions with, and information
provided by, ink manufacturers. There are, no doubt, many approaches
that could be taken in subcategorizing the inks product category. USDA
believes that the proposed subcategories will be sufficient for the
initial efforts to designate the inks product category. USDA notes that
the final rule does not take effect for one year after the publication
date and, as mentioned above, welcomes the opportunity to meet with the
commenter and others to discuss revising, refining, or expanding the
subcategories at the earliest opportunity. Once a consensus has been
reached between USDA and participating industry representatives, USDA
will develop a rulemaking package to propose changes to the
subcategories, if needed.
The commenter also questioned the performance and cost of available
biobased inks. USDA recognizes that performance and cost are key
factors in selecting the types of inks used in printing/copying
operations. As discussed in several other responses in this preamble,
federal agencies are required to consider designated biobased products
but are not required to purchase and use them if the available products
are not capable of meeting reasonable performance expectations or are
not priced competitively with non-biobased products. Section 9002 is
very specific regarding these exceptions. However, USDA encourages
federal agencies to explore available biobased products and communicate
with biobased product manufacturers regarding performance and cost
issues. Reputable biobased product manufacturers should be willing to
work with federal agencies to resolve issues and they should also
recognize that, even with the federal procurement preference, they will
not be successful if their products do not perform up to expectations.
In response to the commenter's question about the BEES functional unit,
the 300 square inches used for the BEES analyses is 300 square inches
of ink.
In summary, USDA acknowledges that, because of time and budget
considerations, today's designation of inks is not based on exhaustive
studies and analyses. USDA also recognizes that some elements of the
designation rule are subject to change as federal agencies and biobased
ink manufacturers gain a better understanding of what is needed to
substitute biobased inks for traditional inks. USDA invites the
commenter and any other representatives of the ink manufacturing
industry to submit information and to meet to discuss in detail future
revisions that may be needed to the designation rule.
Packaging and Insulating Materials
Comment: One Federal agency commenter expressed concern regarding
the proposed product category ``Packaging and Insulating Materials''
and its potential impact on the agency's hazardous waste contracting
and disposal efforts. Specifically, the commenter requested
clarification on whether the biobased content requirements in proposed
section 3201.85, Packaging and Insulating Materials, would apply to
DOT/UN combination shipping packages for Hazardous Material/Hazardous
Waste shipments or whether DOT/UN combination shipping packages might
be excluded. The commenter further stated that if the proposed biobased
requirements were determined to apply to such shipping packages, they
would need to know how the implementation would affect such shipping.
Response: As discussed in section III of this preamble, USDA has
changed the name of this product category in the final rule to
``packing and insulating materials.'' However, USDA believes that the
name change has no bearing on the public comment or on the USDA
response to it. The final rule does not provide a specific exemption
from the requirements of section 3201.85 based on the types of material
being shipped. As proposed, biobased packaging (packing) products
receive the procurement preference regardless of the contents to be
placed in the shipping packages. USDA considered the possibility of
providing a specific
[[Page 20287]]
exemption for hazardous material/hazardous waste shipping activities,
but did not provide such an exemption in the final rule. USDA decided
that such an exemption was not necessary considering the language in
the BioPreferred Program Guidelines. As stated in section 3201.3(c) of
the 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.'' With regard
to the commenter's concerns related to the shipping of hazardous
material/hazardous waste, the DOT requirements for the packaging of
such materials are spelled out in 49 CFR part 178. The burden to
perform testing to demonstrate that their products are capable of
meeting the requirements of part 178 fall on those biobased packaging
material manufacturers who wish to sell their products to the Federal
government. Only if such a demonstration of acceptable performance can
be made are Federal agencies obligated to give a procurement preference
to those products and, even then, only if they are available at
reasonable costs. USDA believes that with these provisions already in
the BioPreferred Program Guidelines, the specific exemption requested
by the commenter is unnecessary. If acceptable biobased packing
materials are available, they should be given preference. However, if
the biobased alternatives are not acceptable (in terms of performance,
availability, and cost), the agency may continue to use the packing
materials currently in use. Thus, USDA is finalizing the designation of
``packing and insulating materials'' without any specific exemptions.
V. Regulatory Information
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Executive Order 12866, as supplemented by Executive Order 13563,
requires agencies to determine whether a regulatory action is
``significant.'' The Order defines a ``significant regulatory action''
as one that is likely to result in a rule that may: ``(1) Have an
annual effect on the economy of $100 million or more or adversely
affect, in a material way, the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities; (2)
Create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) Materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) Raise novel legal
or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.''
Today's final rule has been determined by the Office of Management
and Budget to be not significant for purposes of Executive Order 12866.
We are not able to quantify the annual economic effect associated with
today's final rule. As discussed in the preamble to the proposed
rulemaking, USDA made extensive efforts to obtain information on the
Federal agencies' usage within the 13 designated product categories,
including their subcategories. These efforts were largely unsuccessful.
Therefore, attempts to determine the economic impacts of today's final
rule would require estimation of the anticipated market penetration of
biobased products based upon many assumptions. In addition, because
agencies have the option of not purchasing biobased products within
designated product categories if price is ``unreasonable,'' the product
is not readily available, or the product does not demonstrate necessary
performance characteristics, certain assumptions may not be valid.
While facing these quantitative challenges, USDA relied upon a
qualitative assessment to determine the impacts of today's final rule.
Consideration was also given to the fact that agencies may choose not
to procure designated items due to unreasonable price.
1. Summary of Impacts
Today's final rule is expected to have both positive and negative
impacts 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 designated biobased product
categories to Federal agencies and their contractors. However, other
businesses and manufacturers that supply only non-qualifying products
and do not offer biobased alternatives may experience a decrease in
demand from Federal agencies and their contractors. USDA is unable to
determine the number of businesses, including small businesses, that
may be adversely affected by today's final rule. The final rule,
however, will not affect existing purchase orders, nor will it preclude
businesses from modifying their product lines to meet new requirements
for designated biobased products. Because the extent to which procuring
agencies will find the performance, availability and/or price of
biobased products acceptable is unknown, it is impossible to quantify
the actual economic effect of the rule.
2. Benefits of the Final Rule
The designation of these 13 product categories 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 final rule can result in expanding and strengthening markets
for biobased materials used in these product categories.
3. Costs of the Final Rule
Like the benefits, the costs of today's final rule have not been
quantified. Two types of costs are involved: Costs to producers of
products that will compete with the preferred products and costs to
Federal agencies to provide procurement preference for the preferred
products. Producers of competing products may face a decrease in demand
for their products to the extent Federal agencies refrain from
purchasing their products. However, it is not known to what extent this
may occur. Pre-award procurement costs for Federal agencies may rise
minimally as the contracting officials conduct market research to
evaluate the performance, availability and price reasonableness of
preferred products before making a purchase.
B. Regulatory Flexibility Act (RFA)
The RFA, 5 U.S.C. 601-602, generally requires an agency to prepare
a regulatory flexibility analysis of any rule subject to notice and
comment rulemaking requirements under the Administrative Procedure Act
or any other statute unless the agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
USDA evaluated the potential impacts of its designation of these
product categories to determine whether its actions would have a
significant impact on a substantial number of small entities. Because
the preferred procurement program established under section 9002
applies only to Federal
[[Page 20288]]
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 product categories for preferred procurement will
provide additional opportunities for businesses to manufacture and sell
biobased products to Federal agencies and their contractors. Similar
opportunities will be provided for entities that supply biobased
materials to manufacturers.
The intent of section 9002 is largely to stimulate the production
of new biobased products and to energize emerging markets for those
products. Because the program is still in its infancy, however, it is
unknown how many businesses will ultimately be affected. While USDA has
no data on the number of small businesses that may choose to develop
and market biobased products within the product categories designated
by this rulemaking, the number is expected to be small. Because
biobased products represent a small emerging market, only a small
percentage of all manufacturers, large or small, are expected to
develop and market biobased products. Thus, the number of small
businesses manufacturing biobased products affected by this rulemaking
is not expected to be substantial.
The preferred procurement program may decrease opportunities for
businesses that manufacture or sell non-biobased products or provide
components for the manufacturing of such products. Most manufacturers
of non-biobased products within the product categories being designated
for preferred procurement in this rule are expected to be included
under the following NAICS codes: 321918 (other millwork, including
flooring), 324191 (petroleum lubricating oil and grease manufacturing),
325411 (medicinal and botanical manufacturing), 325510 (paint and
coating manufacturing), 325612 (polish and other sanitation goods
manufacturing), 325620 (toilet preparation manufacturing), 325910
(printing ink manufacturing), 325998 (other miscellaneous chemical
products and preparation manufacturing), 326150 (urethane and other
foam product manufacturing), and 313113 (thread 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 6,963 companies within these 10 NAICS categories and that
these companies own a total of about 8,139 establishments. Thus, the
average number of establishments per company is about 1.2. The Census
data also reported that of the 8,139 individual establishments, about
8,096 (99.5 percent) have fewer than 500 employees. USDA also found
that the overall average number of employees per company among these
industries is about 42, with none of the segments reporting an average
of more than 100 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 product categories
being designated, but believes that the impact will not be significant.
Most of the product categories being designated in this rulemaking are
typical consumer products widely used by the general public and by
industrial/commercial establishments that are not subject to this
rulemaking. Thus, USDA believes that the number of small businesses
manufacturing non-biobased products within the product categories being
designated and selling significant quantities of those products to
government agencies affected by this rulemaking to be relatively low.
Also, this final rule will not affect existing purchase orders and it
will not preclude procuring agencies from continuing to purchase non-
biobased products when biobased products do not meet the availability,
performance, or reasonable price criteria. This final rule will also
not preclude businesses from modifying their product lines to meet new
specifications or solicitation requirements for these products
containing biobased materials.
After considering the economic impacts of this final rule on small
entities, USDA certifies that this action will not have a significant
economic impact on a substantial number of small entities.
While not a factor relevant to determining whether the final rule
will have a significant impact for RFA purposes, USDA has concluded
that the effect of the rule will be to provide positive opportunities
to businesses engaged in the manufacture of these biobased products.
Purchase and use of these biobased products by procuring agencies
increase demand for these products and result in private sector
development of new technologies, creating business and employment
opportunities that enhance local, regional, and national economies.
C. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This final rule has been reviewed in accordance with Executive
Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights, and does not contain
policies that would have implications for these rights.
D. Executive Order 12988: Civil Justice Reform
This rule has been reviewed in accordance with Executive Order
12988, Civil Justice Reform. This rule does not preempt State or local
laws, is not intended to have retroactive effect, and does not involve
administrative appeals.
E. Executive Order 13132: Federalism
This final rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment. Provisions of this
final rule will not have a substantial direct effect on States or their
political subdivisions or on the distribution of power and
responsibilities among the various government levels.
F. Unfunded Mandates Reform Act of 1995
This final rule contains no Federal mandates under the regulatory
provisions of Title II of the Unfunded Mandates Reform Act of 1995
(UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal governments,
or the private sector. Therefore, a statement under section 202 of UMRA
is not required.
G. Executive Order 12372: Intergovernmental Review of Federal Programs
For the reasons set forth in the Final Rule Related Notice for 7
CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is
excluded from the scope of Executive Order 12372, which requires
intergovernmental consultation with State and local officials. This
program does not directly affect State and local governments.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Today's final rule does not significantly or uniquely affect ``one
or more Indian tribes, * * * the relationship between the Federal
Government and Indian tribes, or * * * the distribution of power and
[[Page 20289]]
responsibilities between the Federal Government and Indian tribes.''
Thus, no further action is required under Executive Order 13175.
I. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 through 3520), the information collection under this final rule is
currently approved under OMB control number 0503-0011.
J. E-Government Act Compliance
USDA is committed to compliance with the E-Government Act, which
requires Government agencies, in general, to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. USDA is implementing an electronic
information system for posting information voluntarily submitted by
manufacturers or vendors on the products they intend to offer for
preferred procurement under each designated item. For information
pertinent to E-Government Act compliance related to this rule, please
contact Ron Buckhalt at (202) 205-4008.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, that includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. USDA has submitted a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register.
List of Subjects in 7 CFR Part 3201
Biobased products, Procurement.
For the reasons stated in the preamble, the Department of
Agriculture is amending 7 CFR chapter XXXII as follows:
CHAPTER XXXII--OFFICE OF PROCUREMENT AND PROPERTY MANAGEMENT,
DEPARTMENT OF AGRICULTURE
PART 3201--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL
PROCUREMENT
0
1. The authority citation for part 3201 continues to read as follows:
Authority: 7 U.S.C. 8102.
0
2. Add Sec. Sec. 3201.75 through 3201.87 to subpart B to read as
follows:
Sec.
3201.75 Air fresheners and deodorizers.
3201.76 Asphalt and tar removers.
3201.77 Asphalt restorers.
3201.78 Blast media.
3201.79 Candles and wax melts.
3201.80 Electronic components cleaners.
3201.81 Floor coverings (non-carpet).
3201.82 Foot care products.
3201.83 Furniture cleaners and protectors.
3201.84 Inks.
3201.85 Packing and insulating materials.
3201.86 Pneumatic equipment lubricants.
3201.87 Wood and concrete stains.
Sec. 3201.75 Air fresheners and deodorizers.
(a) Definition. Products used to alleviate the experience of
unpleasant odors by chemical neutralization, absorption,
anesthetization, or masking.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 97 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 April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased air fresheners and
deodorizers. By that date, Federal agencies that have the
responsibility for drafting or reviewing specifications for products to
be procured shall ensure that the relevant specifications require the
use of biobased air fresheners and deodorizers.
Sec. 3201.76 Asphalt and tar removers.
(a) Definition. Cleaning agents designed to remove asphalt or tar
from equipment, roads, or other surfaces.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 80 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 April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased asphalt and tar
removers. By that date, Federal agencies that have the responsibility
for drafting or reviewing specifications for products to be procured
shall ensure that the relevant specifications require the use of
biobased asphalt and tar removers.
Sec. 3201.77 Asphalt restorers.
(a) Definition. Products designed to seal, protect, or restore
poured asphalt and concrete surfaces.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 68 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 April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased asphalt restorers. By
that date, Federal agencies that have the responsibility for drafting
or reviewing specifications for products to be procured shall ensure
that the relevant specifications require the use of biobased asphalt
restorers.
Sec. 3201.78 Blast media.
(a) Definition. Abrasive particles sprayed forcefully to clean,
remove contaminants, or condition surfaces, often preceding coating.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 94 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 April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased blast media. By that
date, Federal agencies that have the responsibility for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased blast media.
(d) Determining overlap with an EPA-designated recovered content
product. Qualifying products within this item may overlap with the EPA-
designated recovered content product: Miscellaneous products--blasting
grit. 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 blasting grit products
and which product should be afforded the preference in purchasing.
Note to paragraph (d): Biobased blast media within this
designated product
[[Page 20290]]
category can compete with similar blasting grit products with
recycled content. Under the Resource Conservation and Recovery Act
of 1976, section 6002, the U.S. Environmental Protection Agency
designated blasting grit products containing recovered materials as
products for which Federal agencies must give preference in their
purchasing programs. The designation can be found in the
Comprehensive Procurement Guideline, 40 CFR 247.17.
Sec. 3201.79 Candles and wax melts.
(a) Definition. Products composed of a solid mass and either an
embedded wick that is burned to provide light or aroma, or that are
wickless and melt when heated to produce an aroma.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 88 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 April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased candles and wax melts.
By that date, Federal agencies that have the responsibility for
drafting or reviewing specifications for products to be procured shall
ensure that the relevant specifications require the use of biobased
candles and wax melts.
Sec. 3201.80 Electronic components cleaners.
(a) Definition. Products that are designed to wash or remove dirt
or extraneous matter from electronic parts, devices, circuits, or
systems.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 91 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 April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased electronic components
cleaners. By that date, Federal agencies that have the responsibility
for drafting or reviewing specifications for products to be procured
shall ensure that the relevant specifications require the use of
biobased electronic components cleaners.
Sec. 3201.81 Floor coverings (non-carpet).
(a) Definition. Products, other than carpet products, that are
designed for use as the top layer on a floor. Examples are bamboo,
hardwood, and cork tiles.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 91 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 April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased floor coverings (non-
carpet). By that date, Federal agencies that have the responsibility
for drafting or reviewing specifications for products to be procured
shall ensure that the relevant specifications require the use of
biobased floor coverings (non-carpet).
(d) Determining overlap with an EPA-designated recovered content
product. Qualifying products within this item may overlap with the EPA-
designated recovered content product: Construction Products--floor
tiles. 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 floor tile products and
which product should be afforded the preference in purchasing.
Note to paragraph (d): Biobased floor coverings within this
designated product category can compete with similar floor tile
products with recycled content. Under the Resource Conservation and
Recovery Act of 1976, section 6002, the U.S. Environmental
Protection Agency designated floor tile products containing
recovered materials as products for which Federal agencies must give
preference in their purchasing programs. The designation can be
found in the Comprehensive Procurement Guideline, 40 CFR 247.17.
Sec. 3201.82 Foot care products.
(a) Definition. Products formulated to be used in the soothing or
cleaning of feet.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 83 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 April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased foot care products. By
that date, Federal agencies that have the responsibility for drafting
or reviewing specifications for products to be procured shall ensure
that the relevant specifications require the use of biobased foot care
products.
Sec. 3201.83 Furniture cleaners and protectors.
(a) Definition. Products designed to clean and provide protection
to the surfaces of household furniture other than the upholstery.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 71 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased furniture cleaners and
protectors. By that date, Federal agencies that have the responsibility
for drafting or reviewing specifications for products to be procured
shall ensure that the relevant specifications require the use of
biobased furniture cleaners and protectors.
Sec. 3201.84 Inks.
(a) Definitions. (1) Inks are liquid or powdered materials that are
available in several colors and that are used to create the visual
image on a substrate when writing, printing, and copying.
(2) Inks for which Federal preferred procurement applies are:
(i) Specialty inks. Inks used by printers to add extra
characteristics to their prints for special effects or functions.
Specialty inks include, but are not limited to: CD printing, erasable,
FDA compliant, invisible, magnetic, scratch and sniff, thermochromic,
and tree marking inks.
(ii) Inks (sheetfed--color). Pigmented inks (other than black inks)
used on coated and uncoated paper, paperboard, some plastic, and foil
to print in color on annual reports, brochures, labels, and similar
materials.
(iii) Inks (sheetfed--black). Black inks used on coated and
uncoated paper, paperboard, some plastic, and foil to print in black on
annual reports, brochures, labels, and similar materials.
(iv) Inks (printer toner--<25 pages per minute (ppm)). Inks that
are a powdered
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chemical, used in photocopying machines and laser printers, which is
transferred onto paper to form the printed image. These inks are
formulated to be used in printers with standard fusing mechanisms and
print speeds of less than 25 ppm.
(v) Inks (printer toner--=25 ppm). Inks that are a
powdered chemical, used in photocopying machines and laser printers,
which is transferred onto paper to form the printed image. These inks
are formulated to be used in printers with advanced fusing mechanisms
and print speeds of 25 ppm or greater.
(vi) Inks (news). Inks used primarily to print newspapers.
(b) Minimum biobased content. The minimum biobased content for all
inks shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product. The applicable minimum biobased contents for
the Federal preferred procurement products are:
(1) Specialty inks--66 percent.
(2) Inks (sheetfed--color)--67 percent.
(3) Inks (sheetfed--black)--49 percent.
(4) Inks (printer toner--<25 ppm)--34 percent.
(5) Inks (printer toner--=25 ppm)--20 percent.
(6) Inks (news)--32 percent.
(c) Preference compliance date. No later than April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased inks. By that date,
Federal agencies that have the responsibility for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased inks.
Sec. 3201.85 Packing and insulating materials.
(a) Definition. Pre-formed and molded materials that are used to
hold package contents in place during shipping or for insulating and
sound proofing applications.
(b) Minimum biobased content. The Federal 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 April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased packing and insulating
materials. By that date, Federal agencies that have the responsibility
for drafting or reviewing specifications for products to be procured
shall ensure that the relevant specifications require the use of
biobased packing and insulating materials.
Sec. 3201.86 Pneumatic equipment lubricants.
(a) Definition. Lubricants designed specifically for pneumatic
equipment, including air compressors, vacuum pumps, in-line
lubricators, rock drills, jackhammers, etc.
(b) Minimum biobased content. The Federal 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 April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased pneumatic equipment
lubricants. By that date, Federal agencies that have the responsibility
for drafting or reviewing specifications for products to be procured
shall ensure that the relevant specifications require the use of
biobased pneumatic equipment lubricants.
(d) Determining overlap with an EPA-designated recovered content
product. Qualifying products within this item may overlap with the EPA-
designated recovered content product: Vehicular Products--re-refined
lubricating oils. USDA is requesting that manufacturers of these
qualifying biobased products provide information on the USDA Web site
of qualifying biobased products about the intended uses of the product,
information on whether or not the product contains any recovered
material, in addition to biobased ingredients, and performance
standards against which the product has been tested. This information
will assist Federal agencies in determining whether or not a qualifying
biobased product overlaps with EPA-designated re-refined lubricating
oil products and which product should be afforded the preference in
purchasing.
Note to paragraph (d): Biobased pneumatic equipment lubricants
within this designated product category can compete with similar re-
refined lubricating oil products with recycled content. Under the
Resource Conservation and Recovery Act of 1976, section 6002, the
U.S. Environmental Protection Agency designated re-refined
lubricating oil products containing recovered materials as products
for which Federal agencies must give preference in their purchasing
programs. The designation can be found in the Comprehensive
Procurement Guideline, 40 CFR 247.17.
Sec. 3201.87 Wood and concrete stains.
(a) Definition. Products that are designed to be applied as a
finish for concrete and wood surfaces and that contain dyes or pigments
to change the color without concealing the grain pattern or surface
texture.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 39 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 April 4, 2013,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased wood and concrete
stains. By that date, Federal agencies that have the responsibility for
drafting or reviewing specifications for products to be procured shall
ensure that the relevant specifications require the use of biobased
wood and concrete stains.
Dated: March 28, 2012.
Pearlie S. Reed,
Assistant Secretary for Administration, U.S. Department of Agriculture.
[FR Doc. 2012-8068 Filed 4-3-12; 8:45 am]
BILLING CODE 3410-93-P