[Federal Register Volume 77, Number 108 (Tuesday, June 5, 2012)]
[Proposed Rules]
[Pages 33270-33288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13340]



[[Page 33269]]

Vol. 77

Tuesday,

No. 108

June 5, 2012

Part II





Department of Agriculture





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Office of Procurement and Property Management





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7 CFR Part 3201





Designation of Product Categories for Federal Procurement; Proposed 
Rule

  Federal Register / Vol. 77, No. 108 / Tuesday, June 5, 2012 / 
Proposed Rules  

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DEPARTMENT OF AGRICULTURE

Office of Procurement and Property Management

7 CFR Part 3201

RIN 0599-AA15


Designation of Product Categories for Federal Procurement

AGENCY: Office of Procurement and Property Management, USDA.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to 
amend the Guidelines for Designating Biobased Products for Federal 
Procurement (Guidelines) to add 12 sections that will designate the 
following product categories within which biobased products would be 
afforded Federal procurement preference: Agricultural spray adjuvants; 
animal cleaning products; deodorants; dethatcher products; fuel 
conditioners; leather, vinyl, and rubber care products; lotions and 
moisturizers; shaving products; specialty precision cleaners and 
solvents; sun care products; wastewater systems coatings; and water 
clarifying agents. USDA is also proposing minimum biobased contents for 
each of these product categories.

DATES: USDA will accept public comments on this proposed rule until 
August 6, 2012.

ADDRESSES: You may submit comments by any of the following methods. All 
submissions received must include the agency name and Regulatory 
Information Number (RIN). The RIN for this rulemaking is 0599-AA15. 
Also, please identify submittals as pertaining to the ``Proposed 
Designation of Product Categories.''
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include RIN number 0599-AA15 
and ``Proposed Designation of Product Categories'' 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; email: [email protected]; phone 
(202) 205-4008. Information regarding the Federal biobased products 
preferred procurement program (one part of the BioPreferred Program) is 
available on the Internet at http://www.biopreferred.gov.

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

I. Authority
II. Background
III. Summary of Today's Proposed Rule
IV. Designation of Product Categories, Minimum Biobased Contents, 
and Time Frame
    A. Background
    B. Product Categories Proposed for Designation
    C. Minimum Biobased Contents
    D. Compliance Date for Procurement Preference and Incorporation 
Into Specifications
V. Where can agencies get more information on these USDA-designated 
product categories?
VI. 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

I. Authority

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

II. Background

    Section 9002 provides for the preferred procurement of biobased 
products by Federal procuring agencies and is referred to hereafter in 
this Federal Register notice as the ``Federal preferred procurement 
program.'' The definition of ``procuring agency'' in section 9002 
includes both Federal agencies and ``a person that is a party to a 
contract with any Federal agency, with respect to work performed under 
such a contract.'' Thus, Federal contractors, as well as Federal 
agencies, are expressly subject to the procurement preference 
provisions of section 9002.
    The term ``product category'' is used in the designation process to 
mean a generic grouping of specific products that perform a similar 
function, such as the various brands of shaving products or deodorants. 
Once USDA designates a product category, procuring agencies are 
required generally to purchase biobased products within these 
designated product categories where the purchase price of the 
procurement product exceeds $10,000 or where the quantity of such 
products or the functionally equivalent products purchased over the 
preceding fiscal year equaled $10,000 or more. Procuring agencies must 
procure biobased products within each product category unless they 
determine that products within a product category are not reasonably 
available within a reasonable period of time, fail to meet the 
reasonable performance standards of the procuring agencies, or are 
available only at an unreasonable price. As stated in 7 CFR Part 3201--
``Guidelines for Designating Biobased Products for Federal 
Procurement'' (Guidelines), biobased products that are merely 
incidental to Federal funding are excluded from the Federal preferred 
procurement program; that is, the requirements to purchase biobased 
products do not apply to such purchases if they are unrelated to or 
incidental to the purpose of the Federal contract. In implementing the 
Federal preferred procurement program for biobased products, procuring 
agencies should follow their procurement rules and Office of Federal 
Procurement Policy guidance on buying non-biobased products when 
biobased products exist and should document exceptions taken for price, 
performance, and availability.
    USDA recognizes that the performance needs for a given application 
are important criteria in making procurement decisions. USDA is not 
requiring procuring agencies to limit their choices to biobased 
products that fall under the product categories proposed for 
designation in this proposed rule. Rather, the effect of the 
designation of the product categories is to require procuring agencies 
to determine their performance needs, determine whether there are 
qualified biobased products that fall under the designated product 
categories that meet

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the reasonable performance standards for those needs, and purchase such 
qualified biobased products to the maximum extent practicable as 
required by section 9002.
    Section 9002(a)(3)(B) requires USDA to provide information to 
procuring agencies on the availability, relative price, performance, 
and environmental and public health benefits of such products and to 
recommend, where appropriate, the minimum level of biobased content to 
be contained in the procured products.
    Subcategorization. Most of the product categories USDA is 
considering for designation for Federal preferred procurement cover a 
wide range of products. For some product categories, there are 
subgroups of products that meet different requirements, uses and/or 
different performance specifications. For example, within the product 
category ``hand cleaners and sanitizers,'' products that are used in 
medical offices may be required to meet performance specifications for 
sanitizing, while other products that are intended for general purpose 
hand washing may not need to meet these specifications. Where such 
subgroups exist, USDA intends to create subcategories. Thus, for 
example, for the product category ``hand cleaners and sanitizers,'' 
USDA determined in an earlier rulemaking that it was reasonable to 
create a ``hand cleaner'' subcategory and a ``hand sanitizer'' 
subcategory. Sanitizing specifications are applicable to the latter 
subcategory, but not the former. In sum, USDA looks at the products 
within each product category to evaluate whether there are groups of 
products within the category that have different characteristics or 
that meet different performance specifications and, where USDA finds 
these types of differences, it intends to create subcategories with the 
minimum biobased content based on the tested products within the 
subcategory.
    For some product categories, however, USDA may not have sufficient 
information at the time of proposal to create subcategories. For 
example, USDA may know that there are different performance 
specifications that leather, vinyl, and rubber care products are 
required to meet, but it may have information on only one type of 
leather, vinyl, and rubber care product. In such instances, USDA may 
either designate the product category without creating subcategories 
(i.e., defer the creation of subcategories) or designate one 
subcategory and defer designation of other subcategories within the 
product category until additional information is obtained. Once USDA 
has received sufficient additional information to justify the 
designation of a subcategory, the subcategory will be designated 
through the proposed and final rulemaking process.
    USDA is not proposing to subcategorize any of the product 
categories being proposed for designation in today's action. However, 
public comments and additional data are being requested for several of 
the product categories and subcategories may be created in a future 
rulemaking.
    Minimum Biobased Contents. The minimum biobased contents being 
proposed with today's rule are based on products for which USDA has 
biobased content test data. Because the submission of product samples 
for biobased content testing is on a strictly voluntary basis, USDA was 
able to obtain samples only from those manufacturers who volunteered to 
invest the resources required to submit the samples. USDA has, however, 
begun to receive biobased content data associated with manufacturer's 
applications for certification to use the USDA Certified Biobased 
Product label. As discussed later in this preamble, these test results 
will also be considered when proposing the minimum biobased content 
levels for designated product categories.
    In addition to considering the biobased content test data for each 
product category, USDA also considers other factors including product 
performance information. USDA evaluates this information to determine 
whether some products that may have a lower biobased content also have 
unique performance or applicability attributes that would justify 
setting the minimum biobased content at a level that would include 
these products. For example, a lubricant product that has a lower 
biobased content than others within a product category but is 
formulated to perform over a wider temperature range than the other 
products may be more desirable to Federal agencies. Thus, it would be 
beneficial to set the minimum biobased content for the product category 
at a level that would include the product with superior performance 
features.
    USDA also considers the overall range of the tested biobased 
contents within a product category, groupings of similar values, and 
breaks (significant gaps between two groups of values) in the biobased 
content test data array. For example, the biobased contents of 13 
tested products within a product category being proposed for 
designation today range from 12 to 100 percent, as follows: 12, 15, 53, 
64, 74, 74, 86, 87, 87, 88, 90, 93, and 100. Because this is a very 
wide range, and because there is a significant gap in the data between 
the 12 percent biobased product and the 53 percent biobased product, 
USDA reviewed the product literature to determine whether subcategories 
could be created within this product category. USDA found that the 
available product information did not justify subcategorization. 
Further, USDA did not find any performance claims that would justify 
setting the minimum biobased content based on the 12 percent biobased 
content product. Thus, USDA is proposing to set the minimum biobased 
content for this product category based on the product with a tested 
biobased content of 53 percent. USDA believes that this evaluation 
process allows it to establish minimum biobased contents based on a 
broad set of factors to assist the Federal procurement community in its 
decisions to purchase biobased products.
    USDA makes every effort to obtain biobased content test data on 
multiple products within each product category. For most designated 
product categories, USDA has biobased content test data on more than 
one product within the category. However, in some cases, USDA has been 
able to obtain biobased content data for only a single product within a 
designated product category. As USDA obtains additional data on the 
biobased contents for products within these designated product 
categories or their subcategories, USDA will evaluate whether the 
minimum biobased content for a designated product category or 
subcategory will be revised.
    USDA anticipates that the minimum biobased content of a product 
category that is based on a single product is more likely to change as 
additional products within that category are identified and tested. In 
today's proposed rule, none of the proposed minimum biobased contents 
is based on a single tested product.
    Where USDA receives additional biobased content test data for 
products within these proposed product categories during the public 
comment period, USDA will take that information into consideration when 
establishing the minimum biobased content when the product categories 
are designated in the final rulemaking.
    Overlap with EPA's Comprehensive Procurement Guideline program for 
recovered content products under the Resource Conservation and Recovery 
Act (RCRA) Section 6002. Some of the products that are within biobased 
product categories designated for Federal preferred procurement under 
this program may also be within categories the Environmental Protection 
Agency (EPA) has designated under the

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

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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 
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 five of the product categories 
being proposed today (deodorants; leather, vinyl, and rubber care 
products; lotions and moisturizers; specialty precision cleaners and 
solvents; and sun care products) 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 proposed for designation today may be available through the 
AbilityOne Program in the future. Procurement of biobased products 
through the AbilityOne Program would further the objectives of both the 
AbilityOne Program and the Federal preferred procurement program.
    Outreach. To augment its own research, USDA consults with industry 
and Federal stakeholders to the Federal preferred procurement program 
during the development of the rulemaking packages for the designation 
of product categories. USDA consults with stakeholders to gather 
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 Federal 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. USDA intends to update the list of product 
categories for future designation on the Biopreferred Web site every 
six months, or more often if significant changes are made to the list.

III. Summary of Today's Proposed Rule

    USDA is proposing to designate the following product categories for 
Federal preferred procurement: Agricultural spray adjuvants; animal 
cleaning products; deodorants; dethatcher products; fuel conditioners; 
leather, vinyl, and rubber care products; lotions and moisturizers; 
shaving products; specialty precision cleaners and solvents; sun care 
products; wastewater systems coatings; and water clarifying agents. 
USDA is also proposing a minimum biobased content for each of these 
product categories. Lastly, USDA is proposing a date by which Federal 
agencies must incorporate these designated product categories into 
their procurement specifications (see Section IV.D).
    In today's proposed rule, USDA is providing information on its 
findings as to the availability, economic and technical feasibility, 
environmental and public health benefits, and life-cycle costs for each 
of the designated product categories. Information on the availability, 
relative price, performance, and environmental and public health 
benefits of individual products within each of these product categories 
is not presented in this notice. Further, USDA has reached an 
understanding with manufacturers not to publish their names in 
conjunction with specific product data published in the Federal 
Register when designating product categories. This understanding was 
reached to encourage manufacturers to submit products for testing to 
support the designation of a product category. Once a product category 
has been designated, USDA will encourage the manufacturers of products 
within the product category to voluntarily make their names and other 
contact information available for the BioPreferred Web site.
    Warranties. Some of the product categories being proposed for 
designation today may affect original equipment manufacturers' (OEMs) 
warranties for equipment in which the product categories are used. For 
example, the manufacturer of a piece of equipment that requires 
lubrication typically includes a list of recommended lubricants in the 
owner/operators manual that accompanies the equipment when purchased. 
If the purchaser of the equipment uses a lubricant (including a 
biobased lubricant) that is not among the lubricants recommended by the 
equipment manufacturer, the manufacturer may cite that as a reason not 
to honor the warranty on the equipment. At this time, USDA does not 
have information available as to the extent that OEMs have included, or 
will include, biobased products among their recommended lubricants (or 
other similar operating components). This does not necessarily mean 
that use of biobased products will void warranties, only that USDA does 
not currently have such information. USDA is requesting comments and 
information on this topic, but cannot be held responsible if damage 
were to occur. USDA encourages manufacturers of biobased products to 
test their products against all relevant standards, including those 
that affect warranties, and to work with OEMs to ensure that biobased 
products are accepted and recommended for use. Whenever manufacturers 
of biobased products find that existing performance standards for 
warranties are not relevant or appropriate for biobased products, USDA 
is willing to assist them in working with the appropriate OEMs to 
develop tests that are relevant and appropriate for the end uses in 
which biobased products are intended. In addition to outreach to 
biobased product manufacturers and Federal Agencies, USDA will, as time 
and resources allow, work with OEMs on addressing any effect the use of 
biobased products may have on their warranties. If, in spite of these 
efforts, there is insufficient information regarding the use of a 
biobased product and its effect on warranties, the procurement agent 
would not be required to buy such a product. As information is 
available on warranties,

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USDA will make such information available on the BioPreferred Web site.
    Additional Information. USDA is working with manufacturers and 
vendors to make all relevant product and manufacturer contact 
information available on the BioPreferred Web site before a procuring 
agency asks for it, in order to make the Federal preferred procurement 
program more efficient. Steps USDA has implemented, or will implement, 
include: Making direct contact with submitting companies through email 
and phone conversations to encourage completion of product listing; 
coordinating outreach efforts with intermediate material producers to 
encourage participation of their customer base; conducting targeted 
outreach with industry and commodity groups to educate stakeholders on 
the importance of providing complete product information; participating 
in industry conferences and meetings to educate companies on program 
benefits and requirements; and communicating the potential for expanded 
markets beyond the Federal government, to include State and local 
governments, as well as the general public markets. Section V provides 
instructions to agencies on how to obtain this information on products 
within these product categories through the following Web site: http://www.biopreferred.gov.
    Comments. USDA invites comment on the proposed designation of these 
product categories, including the definition, proposed minimum biobased 
content, and any of the relevant analyses performed during the 
selection of these product categories. In addition, USDA invites 
comments and information in the following areas:
    1. We have attempted to identify relevant and appropriate 
performance standards and other relevant measures of performance for 
each of the proposed product categories. If you know of other such 
standards or relevant measures of performance for any of the proposed 
product categories, USDA requests that you submit information 
identifying such standards and measures, including their name (and 
other identifying information as necessary), identifying who is using 
the standard/measure, and describing the circumstances under which the 
product is being used.
    2. Many biobased products within the product categories being 
proposed for designation will have positive environmental and human 
health attributes. USDA is seeking comments on such attributes in order 
to provide additional information on the BioPreferred Web site. This 
information will then be available to Federal procuring agencies and 
will assist them in making informed sustainable procurement decisions. 
When possible, please provide appropriate documentation to support the 
environmental and human health attributes you describe.
    3. Several product categories (e.g., agricultural spray adjuvants, 
animal cleaning products, deodorants, leather, vinyl, and rubber care 
products, sun care products, and wastewater systems coatings) have wide 
ranges of tested biobased contents. For the reasons discussed later in 
this preamble, USDA is proposing a minimum biobased content for most of 
these product categories that would allow many of the tested products 
to be eligible for Federal preferred procurement. USDA welcomes 
comments on the appropriateness of the proposed minimum biobased 
contents for these product categories and whether there are potential 
subcategories within the product categories that should be considered.
    4. As discussed above, the effect that the use of biobased products 
may have on original equipment manufacturers' warranties is uncertain. 
USDA requests comments and supporting information on any aspect of this 
issue.
    5. Today's proposed rule is expected to have both positive and 
negative impacts on individual businesses, including small businesses. 
USDA anticipates that the biobased Federal preferred procurement 
program will provide additional opportunities for businesses and 
manufacturers to begin supplying products under the proposed 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. Because USDA has been unable to determine the number of 
businesses, including small businesses, that may be adversely affected 
by today's proposed rule, USDA requests comment on how many small 
entities may be affected by this rule and on the nature and extent of 
that effect.
    All comments should be submitted as directed in the ADDRESSES 
section above.
    To assist you in developing your comments, the background 
information used in proposing these product categories for designation 
has been posted on the BioPreferred Web site. The background 
information can be located by clicking on the ``Federal Procurement 
Preference'' link on the right side of the BioPreferred Web site's home 
page (http://www.biopreferred.gov) and then on the ``Rules and 
Regulations'' link. At the next screen, click on the Supporting 
Documentation link under Round 9 Designation under the Proposed 
Regulations section.

IV. Designation of Product Categories, Minimum Biobased Contents, and 
Time Frame

A. Background

    In order to designate product categories for Federal preferred 
procurement, section 9002 requires USDA to consider: (1) The 
availability of biobased products within the product categories and (2) 
the economic and technological feasibility of using those products, 
including the life-cycle costs of the products.
    In considering a product's availability, USDA uses several sources 
of information. USDA performs Internet searches, contacts trade 
associations (such as the Bio organization) and commodity groups, 
searches the Thomas Register (a database, used as a resource for 
finding companies and products manufactured in North America, 
containing over 173,000 entries), and contacts manufacturers and 
vendors to identify those manufacturers and vendors with biobased 
products within product categories being considered for designation. 
USDA uses the results of these same searches to determine if a product 
category is generally available.
    In considering a product category's economic and technological 
feasibility, USDA examines evidence pointing to the general commercial 
use of a product and its life-cycle cost and performance 
characteristics. This information is obtained from the sources used to 
assess a product's availability. Commercial use, in turn, is evidenced 
by any manufacturer and vendor information on the availability, 
relative prices, and performance of their products as well as by 
evidence of a product being purchased by a procuring agency or other 
entity, where available. In sum, USDA considers a product category 
economically and technologically feasible for purposes of designation 
if products within that product category are being offered and used in 
the marketplace.
    In considering the life-cycle costs of product categories proposed 
for designation, USDA has obtained the necessary input information (on 
a voluntary basis) from manufacturers of biobased products and has used 
the BEES analytical tool to analyze individual products within each

[[Page 33275]]

proposed product category. The BEES analytical tool measures the 
environmental performance and the economic performance of a product. 
The environmental performance scores, impact values, and economic 
performance results for products within the Round 9 designated product 
categories analyzed using the BEES analytical tool can be found on the 
BioPreferred Web site (http://www.biopreferred.gov) under the 
Supporting Documentation link mentioned above.
    In addition to the BEES analytical tool, manufacturers wishing to 
make similar life-cycle information available may choose to use the 
ASTM Standard D7075 analysis. The ASTM Standard D7075 product analysis 
includes information on environmental performance, human health 
impacts, and economic performance. USDA is working with manufacturers 
and vendors to make this information available on the BioPreferred Web 
site in order to make the Federal preferred procurement program more 
efficient.
    As discussed earlier, USDA has also implemented, or will implement, 
several other steps intended to educate the manufacturers and other 
stakeholders on the benefits of this program and the need to make this 
information, including manufacturer contact information, available on 
the BioPreferred Web site in order to then make it available to 
procurement officials. Additional information on specific products 
within the product categories proposed for designation may also be 
obtained directly from the manufacturers of the products. USDA has also 
provided a link on the BioPreferred Web site to a document that offers 
useful information to manufacturers and vendors who wish to position 
their businesses as BioPreferred vendors to the Federal Government. 
This document can be accessed by clicking on the ``Sell Biobased 
Products'' tab on the right side of the home page of the BioPreferred 
Web site, then on the ``Resources for Business'' tab under ``Related 
Topics'' on the right side of the next page, and then on the document 
titled ``Selling Biobased Products to the Federal Government'' in the 
middle of the page.
    USDA recognizes that information related to the functional 
performance of biobased products is a primary factor in making the 
decision to purchase these products. USDA is gathering information on 
industry standard test methods and performance standards that 
manufacturers are using to evaluate the functional performance of their 
products. (Test methods are procedures used to provide information on a 
certain attribute of a product. For example, a test method might 
determine how many bacteria are killed. Performance standards identify 
the level at which a product must perform in order for it to be 
``acceptable'' to the entity that set the performance standard. For 
example, a performance standard might require that a certain percentage 
(e.g., 95 percent) of the bacteria must be killed through the use of 
the product.) The primary sources of information on these test methods 
and performance standards are manufacturers of biobased products within 
these product categories. Additional test methods and performance 
standards are also identified during meetings of the Interagency 
council and during the review process for each proposed rule. We have 
listed, under the detailed discussion of each product category proposed 
for designation (presented in Section IV.B), the functional performance 
test methods, performance standards, product certifications, and other 
measures of performance associated with the functional aspects of 
products identified during the development of this Federal Register 
notice for these product categories.
    While this process identifies many of the relevant test methods and 
standards, USDA recognizes that those identified herein do not 
represent all of the methods and standards that may be applicable for a 
product category or for any individual product within the category. As 
noted earlier in this preamble, USDA is requesting identification of 
other relevant performance standards and measures of performance. As 
the program becomes fully implemented, these and other additional 
relevant performance standards will be available on the BioPreferred 
Web site.
    In gathering information relevant to the analyses discussed above 
for this proposed rule, USDA has made extensive efforts to contact and 
request information and product samples within the product categories 
proposed for designation. For product information, USDA has attempted 
to contact representatives of the manufacturers of biobased products 
identified by the Federal preferred procurement program. For product 
samples on which to conduct biobased content tests and BEES analysis, 
USDA has attempted to obtain samples and BEES input information for at 
least five different suppliers of products within each product category 
in today's proposed rule. However, because the submission of 
information and samples is on a strictly voluntary basis, USDA was able 
to obtain information and samples only from those manufacturers who 
volunteered to invest the resources required to gather and submit the 
information and samples. The data presented are all the data that were 
submitted in response to USDA requests for information from 
manufacturers of the products within the product categories proposed 
for designation. While USDA would prefer to have complete data on the 
full range of products within each product category, the data that were 
submitted support designation of the product categories in today's 
proposed rule.
    To propose a product category for designation, USDA must have 
sufficient information on a sufficient number of products within the 
category to be able to assess its availability and its economic and 
technological feasibility, including its life-cycle costs. For some 
product categories, there may be numerous products available. For 
others, there may be very few products currently available. Given the 
infancy of the market for some product categories, it is expected that 
categories with only a single product will be identified. Further, 
given that the intent of section 9002 is largely to stimulate the 
production of new biobased products and to energize emerging markets 
for those products, USDA has determined it is appropriate to designate 
a product category or subcategory for Federal preferred procurement 
even when there is only a single product with a single supplier, though 
this will generally occur once other products with high biobased 
content and two or more producers are first designated. However, USDA 
has also determined that in such situations it is appropriate to defer 
the effective Federal preferred procurement date until such time that 
more than one supplier is identified in order to provide choice to 
procuring agencies. Similarly, the documented availability, benefits, 
and life-cycle costs of even a very small percentage of all products 
that may exist within a product category are also considered sufficient 
to support designation.

B. Product Categories Proposed for Designation

    USDA uses a model (as summarized below) to identify and prioritize 
product categories for designation. Through this model, USDA has 
identified over 100 product categories for potential designation under 
the Federal preferred procurement program. A list of these product 
categories and information on the model can be accessed on the 
BioPreferred Web site at http://www.biopreferred.gov.

[[Page 33276]]

    In general, product categories are developed and prioritized for 
designation by evaluating them against program criteria established by 
USDA and by gathering information from other government agencies, 
private industry groups, and manufacturers. These evaluations begin by 
looking at the cost, performance, and availability of products within 
each product category. USDA then considers the following points:
     Are there manufacturers interested in providing the 
necessary test information on products within a particular product 
category?
     Are there a number of manufacturers producing biobased 
products in this product category?
     Are there products available in this product category?
     What level of difficulty is expected when designating this 
product category?
     Is there Federal demand for the product?
     Are Federal procurement personnel looking for biobased 
products?
     Will a product category create a high demand for biobased 
feed stock?
     Does manufacturing of products within this product 
category increase potential for rural development?
    After completing this evaluation, USDA prioritizes the list of 
product categories for designation. USDA then gathers information on 
products within the highest priority product categories and, as 
sufficient information becomes available for a group of product 
categories, a new rulemaking package is developed to designate the 
product categories within that group. USDA points out that the list of 
product categories may change, with some being added or dropped, and 
that the order in which they are proposed for designation is likely to 
change because the information necessary to designate a product 
category may take more time to obtain than one lower on the list.
    In today's proposed rule, USDA is proposing to designate the 
following product categories for the Federal preferred procurement 
program: Agricultural spray adjuvants; animal cleaning products; 
deodorants; dethatcher products; fuel conditioners; leather, vinyl, and 
rubber care products; lotions and moisturizers; shaving products; 
specialty precision cleaners and solvents; sun care products; 
wastewater systems coatings; and water clarifying agents. USDA has 
determined that each of these product categories meets the necessary 
statutory requirements--namely, that they are being produced with 
biobased products and that their procurement by procuring agencies will 
carry out the following objectives of section 9002:
     To increase demand for biobased products, which would in 
turn increase demand for agricultural commodities that can serve as 
feedstocks for the production of biobased products;
     To spur development of the industrial base through value-
added agricultural processing and manufacturing in rural communities; 
and
     To enhance the Nation's energy security by substituting 
biobased products for products derived from imported oil and natural 
gas.
    Further, USDA has sufficient information on these product 
categories to determine their availability and to conduct the requisite 
analyses to determine their biobased content and their economic and 
technological feasibility, including life-cycle costs.
    Exemptions. Products exempt from the biobased procurement 
preference are military equipment, defined as any product or system 
designed or procured for combat or combat-related missions, and 
spacecraft systems and launch support equipment. However, agencies may 
purchase biobased products wherever performance, availability and 
reasonable price indicates that such purchases are justified.
    Although each product category in today's proposed rule would be 
exempt from the procurement preference requirement when used in 
spacecraft systems or launch support application or in military 
equipment used in combat and combat-related applications, this 
exemption does not extend to contractors performing work other than 
direct maintenance and support of the spacecraft or launch support 
equipment or combat or combat-related missions. For example, if a 
contractor is applying a dethatcher product to the lawn around an 
office building on a military base, the dethatcher the contractor 
purchases and uses on the lawn should be a qualifying biobased 
dethatcher. The exemption does apply, however, if the product being 
purchased by the contractor is for use in combat or combat-related 
missions or for use in space or launch applications. After reviewing 
the regulatory requirement and the relevant contract, where contractors 
have any questions on the exemption, they should contact the cognizant 
contracting officer.
    USDA points out that it is not the intent of these exemptions to 
imply that biobased products are inferior to non-biobased products. If 
manufacturers of biobased products can meet the concerns of these two 
agencies, USDA is willing to reconsider such exemptions on an case-by-
case basis. Any changes to the current exemptions would be announced in 
a proposed rule amendment with an opportunity for public comment.
    Each of the proposed designated product categories are discussed in 
the following sections.
1. Agricultural Spray Adjuvants (Minimum Biobased Content 50 Percent) 
\1\
---------------------------------------------------------------------------

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

    Agricultural spray adjuvants are products mixed in the spray tank 
with the herbicide, pesticide, or fertilizer formulas that will improve 
the efficiency and the effectiveness of the chemicals including 
sticking agents, wetting agents, etc.
    USDA identified 30 manufacturers and suppliers of 62 agricultural 
spray adjuvants. These 30 manufacturers and suppliers do not 
necessarily include all manufacturers of agricultural spray adjuvants, 
merely those identified during USDA information gathering activities. 
Relevant product information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. In 
addition, manufacturers and stakeholders identified three test methods 
(as shown below) used in evaluating products within this product 
category. While there may be additional test methods, as well as 
performance standards, product certifications, and other measures of 
performance, applicable to products within this product category, the 
three test methods identified by the manufacturers are:
Test Methods
 29 CFR 1910.1200; Occupational Safety Health Standards Section 
1200--Hazard Communication
 VOCs; California Air Resources Board Method 310
 ASTM D790; Standard Test Methods for Flexural Properties of 
Unreinforced and Reinforced Plastics and Electrical Insulating 
Materials

    USDA contacted procurement officials with various policy-making and 
procuring agencies in an effort to gather information on the purchases 
of agricultural spray adjuvants, as well as information on products 
within the other 11 product categories proposed for designation today. 
These agencies included GSA, several offices within the DLA, OFEE, USDA 
Departmental Administration, the National Park Service, EPA, a 
Department of Energy laboratory, and OMB. Communications

[[Page 33277]]

with these Federal officials led to the conclusion that obtaining 
current usage statistics and specific potential markets within the 
Federal government for biobased products within the 12 proposed 
designated product categories is not possible at this time.
    Most of the contacted officials reported that procurement data are 
appropriately reported in higher level groupings of Federal Supply 
Codes \2\ for materials and supplies, which is higher level coding than 
the proposed designated product categories. Using terms that best match 
the product categories in today's proposed rule, USDA queried the GSA 
database for Federal purchases of products within today's proposed 
product categories. The results indicate purchases of products within 
product categories in today's proposed rule. The results of this 
inquiry can be found in the background information for Round 9, which 
is posted on the BioPreferred Web site. Also, the purchasing of such 
materials as part of contracted services and with individual purchase 
cards used to purchase products locally leads to less accurate data on 
purchases of specific products.
---------------------------------------------------------------------------

    \2\ The Federal Supply Code (FSC) is a four-digit code used by 
government buying offices to classify and identify, in broad terms, 
the products and supplies that the government buys and uses. The FSC 
is the first four digits in the much more detailed 13-digit National 
Stock Number (NSN) that is assigned to all government purchases for 
purposes of identification and inventory control.
---------------------------------------------------------------------------

    USDA also investigated the Web site FEDBIZOPPS.gov, a site which 
lists Federal contract purchase opportunities and awards greater than 
$25,000. The information provided on this Web site, however, is for 
broad categories of services and products rather than the specific 
types of products that are included in today's proposed rule. 
Therefore, USDA has been unable to obtain data on the amount of 
agricultural spray adjuvants purchased by procuring agencies. However, 
Federal agencies routinely perform, or contract for, agricultural, 
lawn, and landscaping services involving the use of such products. 
Thus, they have a need for agricultural spray adjuvants and for 
services that use these products. Designation of agricultural spray 
adjuvants will promote the use of biobased products, furthering the 
objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on 21 agricultural spray adjuvants. Analyses of the 
environmental and human health benefits and the life-cycle costs of 
agricultural spray adjuvants were performed for one of the products 
using the BEES analytical tool. The results of those analyses are 
presented in the background information for Round 9, which is posted on 
the BioPreferred Web site.
2. Animal Cleaning Products (Minimum Biobased Content 57 Percent)
    Animal cleaning products are products designed to clean, condition, 
or remove substances from animal hair or other parts of an animal.
    USDA identified 85 manufacturers and suppliers of 329 animal 
cleaning products. The 85 manufacturers and suppliers do not 
necessarily include all manufacturers and suppliers of biobased animal 
cleaning products, merely those identified during USDA information 
gathering activities. Information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. In 
addition, manufacturers and stakeholders identified one test method (as 
shown below) used in evaluating products within this product category. 
While there may be additional test methods, as well as performance 
standards, product certifications, and other measures of performance, 
applicable to products within this product category, the one test 
method identified by the manufacturers is:
Test Method
 29 CFR 1910.1200; EPA FIFRA 25b Minimum Risk Pesticide Exempt

    USDA attempted to gather data on the potential market for animal 
cleaning products within the Federal government as discussed in the 
section on agricultural spray adjuvants. These attempts were largely 
unsuccessful. However, many Federal agencies routinely perform, or 
procure contract services to perform, the types of cleaning activities 
that use these products. Thus, they have a need for animal cleaning 
products and for services that require the use of animal cleaning 
products. Designation of animal cleaning products will promote the use 
of biobased products, furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on 15 animal cleaning products. Analyses of the environmental 
and human health benefits and the life-cycle costs of animal cleaning 
products were performed for one product using the BEES analytical tool. 
The results of those analyses are presented in the background 
information for Round 9, which is posted on the BioPreferred Web site.
3. Deodorants (Minimum Biobased Content 73 Percent)
    Deodorants are products for inhibiting or masking perspiration and 
other body odors and that are often combined with an antiperspirant.
    USDA identified 37 manufacturers and suppliers of 82 different 
deodorants. These 37 manufacturers and suppliers do not necessarily 
include all manufacturers and suppliers of biobased deodorants, merely 
those identified during USDA information gathering activities. 
Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. However, manufacturers 
and stakeholders contacted by USDA did not identify any applicable 
performance standards, test methods, or other industry measures of 
performance against which these products have been tested. USDA points 
out that the lack of identified performance standards is not relevant 
to the designation of a product category for Federal preferred 
procurement because it is not one of the criteria section 9002 requires 
USDA to consider in order to designate a product category for Federal 
preferred procurement. If and when performance standards, test methods, 
and other relevant measures of performance are identified for this 
product category, USDA will provide such information on the 
BioPreferred Web site.
    USDA attempted to gather data on the potential market for 
deodorants within the Federal government as discussed in the section on 
agricultural spray adjuvants. These attempts were largely unsuccessful. 
However, several Federal agencies operate housing and medical care 
facilities where deodorants are used or sold. In addition, Federal 
agencies may contract for services involving the use of such products. 
Thus, they have a need for deodorants and for services that require the 
use of deodorants. Designation of deodorants will promote the use of 
biobased products, furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on 10 deodorant products. Analyses of the environmental and 
human health benefits and the life-cycle costs of deodorants were 
performed for one of the products using the BEES analytical tool. The 
results of those analyses are presented in the background information 
for Round 9, which is posted on the BioPreferred Web site.

[[Page 33278]]

4. Dethatchers (Minimum Biobased Content 87 Percent)
    Dethatchers are products used to remove non-decomposed plant 
material accumulated in grassy areas.
    USDA identified 13 manufacturers and suppliers of 14 dethatchers. 
These 13 manufacturers and suppliers do not necessarily include all 
manufacturers and suppliers of biobased dethatchers, merely those 
identified during USDA information gathering activities. Information 
supplied by these manufacturers and suppliers indicates that these 
products are being used commercially. However, manufacturers and 
stakeholders contacted by USDA did not identify any applicable 
performance standards, test methods, or other industry measures of 
performance against which these products have been tested. USDA points 
out that the lack of identified performance standards is not relevant 
to the designation of a product category for Federal preferred 
procurement because it is not one of the criteria section 9002 requires 
USDA to consider in order to designate a product category for Federal 
preferred procurement. If and when performance standards, test methods, 
and other relevant measures of performance are identified for this 
product category, USDA will provide such information on the 
BioPreferred Web site.
    USDA attempted to gather data on the potential market for 
dethatchers within the Federal government as discussed in the section 
on agricultural spray adjuvants. These attempts were largely 
unsuccessful. However, many Federal agencies routinely maintain, or 
procure contract services to maintain, office and residential facility 
landscapes where dethatchers are used. Thus, they have a need for these 
products. Designation of dethatchers will promote the use of biobased 
products, furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on six dethatchers. Analyses of the environmental and human 
health benefits and the life-cycle costs of dethatchers were performed 
for three of the products using the BEES analytical tool. The results 
of those analyses are presented in the background information for Round 
9, which is posted on the BioPreferred Web site.
5. Fuel Conditioners (Minimum Biobased Content 64 Percent)
    Fuel conditioners are products formulated to improve the 
performance and efficiency of engines by providing benefits such as 
removing accumulated deposits, increasing lubricity, removing moisture, 
increasing the cetane number, and/or preventing microbial growths 
within the fuel system.
    USDA identified 13 manufacturers and suppliers of 25 fuel 
conditioner products. These 13 manufacturers and suppliers do not 
necessarily include all manufacturers and suppliers of biobased fuel 
conditioner products, merely those identified during USDA information 
gathering activities. Information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. In 
addition, manufacturers and stakeholders identified six test methods 
(as shown below) used in evaluating products within this product 
category. While there may be additional test methods, as well as 
performance standards, product certifications, and other measures of 
performance, applicable to products within this product category, the 
six test methods identified by the manufacturers are:
Test Methods
 Environmental Protection Agency 40 CFR 79.23 Fuel Additive
 ASTM International D1094 Standard Test Method for Water 
Reaction of Aviation Fuels
 ASTM International D2274 Standard Test Method for Oxidation 
Stability of Distillate Fuel Oil (Accelerated Method)
 ASTM International D6078 Standard Test Method for Evaluating 
Lubricity of Diesel Fuels by the Scuffing Load Ball-on-Cylinder 
Lubricity Evaluator (SLBOCLE)
 ASTM International D665 Standard Test Method for Rust-
Preventing Characteristics of Inhibited Mineral Oil in the Presence of 
Water
 Cummins Engine Company L10 Injector Depositing Test 
Detergency. A standard used to indicate of the ability of a product to 
provide injector cleanliness and can be used to discriminate fuel/fuel 
additive quality

    USDA attempted to gather data on the potential market for fuel 
conditioner products within the Federal government as discussed in the 
section on agricultural spray adjuvants. These attempts were largely 
unsuccessful. However, many Federal agencies routinely operate, or 
procure contract services to operate, motor vehicles and other 
equipment where fuel conditioners are used. Thus, they have a need for 
these products. Designation of fuel conditioner products will promote 
the use of biobased products, furthering the objectives of this 
program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on 23 fuel conditioner products. Analyses of the 
environmental and human health benefits and the life-cycle costs of 
fuel conditioner products were performed for three of the products 
using the BEES analytical tool. The results of those analyses are 
presented in the background information for Round 9, which is posted on 
the BioPreferred Web site.
6. Leather, Vinyl, and Rubber Care Products (Minimum Biobased Content 
55 Percent)
    Leather, vinyl, and rubber care products are products that help 
clean, nourish, protect, and restore leather, vinyl, and rubber 
surfaces including cleaners, conditioners, protectants, polishes, 
waxes, etc.
    USDA identified 36 manufacturers and suppliers of 79 leather, 
vinyl, and rubber care products. These 36 manufacturers and suppliers 
do not necessarily include all manufacturers and suppliers of leather, 
vinyl, and rubber care products, merely those identified during USDA 
information gathering activities. Information supplied by these 
manufacturers and suppliers indicates that these products are being 
used commercially. In addition, manufacturers and stakeholders 
identified two test methods (as shown below) used in evaluating 
products within this product category. While other test methods and 
measures of performance, as well as performance standards, applicable 
to products within this product category may exist, the two test 
methods identified by manufacturers are:
Test Methods
 ASTM D4488; Standard Guide for Testing Cleaning Performance of 
Products Intended for Use on Resilient Flooring and Washable Walls
 GS-37; Green Seal Environmental Standard for General-Purpose, 
Bathroom, Glass, and Carpet Cleaners Used for Industrial and 
Institutional Purposes

    USDA attempted to gather data on the potential market for leather, 
vinyl, and rubber care products within the Federal government as 
discussed in the section on agricultural spray adjuvants. These 
attempts were largely unsuccessful. However, many Federal agencies 
routinely procure leather, vinyl, and rubber care products, or contract 
with services that procure these products.

[[Page 33279]]

Thus, they have a need for leather, vinyl, and rubber care products and 
for services that require the use of leather, vinyl, and rubber care 
products. Designation of leather, vinyl, and rubber care products will 
promote the use of biobased products, furthering the objectives of this 
program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on seven leather, vinyl, and rubber care products. Analyses 
of the environmental and human health benefits and the life-cycle costs 
of biobased leather, vinyl, and rubber care products were performed for 
two products using the BEES analytical tool. The results of those 
analyses are presented in the background information for Round 9, which 
is posted on the BioPreferred Web site.
7. Lotions and Moisturizers (Minimum Biobased Content 59 Percent)
    Lotions and moisturizers are creams and oils used to soften and 
treat damaged skin.
    USDA identified 230 manufacturers and suppliers of 888 lotions and 
moisturizers. These 230 manufacturers and suppliers do not necessarily 
include all manufacturers and suppliers of lotions and moisturizers, 
merely those identified during USDA information gathering activities. 
Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. In addition, 
manufacturers and stakeholders identified two test methods (as shown 
below) used in evaluating products within this product category. While 
other test methods and measures of performance, as well as performance 
standards, applicable to products within this product category may 
exist, the two test methods identified by manufacturers are:
Test Methods
 ASTM International E1207 Standard Practice for The Sensory 
Evaluation of Auxiliary Deodorancy
 ASTM International E1909 Standard Guide for Time-Intensity 
Evaluation of Sensory Attributes

    USDA attempted to gather data on the potential market for lotions 
and moisturizers within the Federal government as discussed in the 
section on agricultural spray adjuvants. These attempts were largely 
unsuccessful. However, Federal agencies procure lotions and 
moisturizers for use in medical care or similar types of facilities, or 
they procure the services that use these products. Thus, they have a 
need for lotions and moisturizers and for services that require the use 
of lotions and moisturizers. Designation of lotions and moisturizers 
will promote the use of biobased products, furthering the objectives of 
this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on 133 lotions and moisturizers. Analyses of the 
environmental and human health benefits and the life-cycle costs of 
biobased lotions and moisturizers were performed for one product using 
the BEES analytical tool. The results of those analyses are presented 
in the background information for Round 9, which is posted on the 
BioPreferred Web site.
8. Shaving Products (Minimum Biobased Content 92 Percent)
    Shaving products are products designed for every step of the 
shaving process, including shaving creams, gels, soaps, lotions, and 
aftershave balms.
    USDA identified 71 manufacturers of 640 biobased shaving products. 
The 71 manufacturers do not necessarily include all manufacturers of 
biobased shaving products, merely those identified during USDA 
information gathering activities. Information supplied by these 
manufacturers indicates that these products are being used 
commercially. However, manufacturers and stakeholders contacted by USDA 
did not identify any applicable performance standards, test methods, or 
other industry measures of performance against which these products 
have been tested. USDA points out that the lack of identified 
performance standards is not relevant to the designation of a product 
category for Federal preferred procurement because it is not one of the 
criteria section 9002 requires USDA to consider in order to designate a 
product category for Federal preferred procurement. If and when 
performance standards, test methods, and other relevant measures of 
performance are identified for this product category, USDA will provide 
such information on the BioPreferred Web site.
    USDA attempted to gather data on the potential market for shaving 
products within the Federal government as discussed in the section on 
agricultural spray adjuvants. These attempts were largely unsuccessful. 
However, Federal medical care facilities use, and procure services that 
use, shaving products. Thus, they have a need for shaving products and 
for services that require the use of shaving products. Designation of 
shaving products will promote the use of biobased products, furthering 
the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on 10 shaving products. Analyses of the environmental and 
human health benefits and the life-cycle costs of biobased shaving 
products were performed for one product using the BEES analytical tool. 
The results of those analyses are presented in the background 
information for Round 9, which is posted on the BioPreferred Web site.
9. Specialty Precision Cleaners and Solvents (Minimum Biobased Content 
56 Percent)
    Specialty precision cleaners and solvents are cleaners and solvents 
used in specialty applications. These materials may be used in either 
neat solution, diluted with water, or in hand wiping applications.
    USDA identified 22 manufacturers and suppliers of 30 specialty 
precision cleaners and solvents. These 22 manufacturers and suppliers 
do not necessarily include all manufacturers and suppliers of specialty 
precision cleaners and solvents, merely those identified during USDA 
information gathering activities. Information supplied by these 
manufacturers and suppliers indicates that these products are being 
used commercially. In addition, manufacturers and stakeholders 
identified two test methods (as shown below) used in evaluating 
products within this product category. While other test methods and 
measures of performance, as well as performance standards, applicable 
to products within this product category may exist, the two test 
methods identified by manufacturers are:

Test Methods

 ASTM F1110 Standard Test Method for Sandwich Corrosion Test
 ASTM F519 Standard Test Method for Mechanical Hydrogen 
Embrittlement Evaluation of Plating Processes and Service Environments

    USDA attempted to gather data on the potential market for specialty 
precision cleaners and solvents within the Federal government as 
discussed in the section on agricultural spray adjuvants. These 
attempts were largely unsuccessful. However, many Federal agencies 
purchase and maintain equipment that requires specialty precision 
cleaners and solvents, or contract with services that procure these 
products. Thus, they have a need for specialty precision cleaners and 
solvents and for services

[[Page 33280]]

that require the use of specialty precision cleaners and solvents. 
Designation of specialty precision cleaners and solvents will promote 
the use of biobased products, furthering the objectives of this 
program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on 11 specialty precision cleaners and solvents. Analyses of 
the environmental and human health benefits and the life-cycle costs of 
biobased specialty precision cleaners and solvents were performed for 
one product using the BEES analytical tool. The results of those 
analyses are presented in the background information for Round 9, which 
is posted on the BioPreferred Web site.
10. Sun Care Products (Minimum Biobased Content 53 Percent)
    Sun care products are topical products, including sunscreens, sun 
blocks, and suntan lotions that absorb or reflect the sun's ultraviolet 
radiation to protect the skin.
    USDA identified 47 manufacturers and suppliers of 206 different 
biobased sun care products. These 47 manufacturers and suppliers do not 
necessarily include all manufacturers and suppliers of biobased sun 
care products, merely those identified during USDA information 
gathering activities. Information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. In 
addition, manufacturers and stakeholders identified one test methods 
(as shown below) used in evaluating products within this product 
category. While other test methods and measures of performance, as well 
as performance standards, applicable to products within this product 
category may exist, the one test method identified by manufacturers is:

Test Methods

 21 CFR part 352 21 CFR part 352 Sun Protection Factor Monogram

    USDA attempted to gather data on the potential market for sun care 
products within the Federal government as discussed in the section on 
agricultural spray adjuvants. These attempts were largely unsuccessful. 
However, some Federal agencies provide medical or other personnel care 
activities that require the use of sun care products. In addition, 
Federal agencies may procure medical care and other similar services 
that require the use of sun care products. Thus, they have a need for 
sun care products and for services that require the use of such 
products. Designation of sun care products will promote the use of 
biobased products, furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on 13 sun care products. Analyses of the environmental and 
human health benefits and the life-cycle costs of biobased sun care 
products were performed for two of the products using the BEES 
analytical tool. The results of those analyses are presented in the 
background information for Round 9, which is posted on the BioPreferred 
Web site.
11. Wastewater Systems Coatings (Minimum Biobased Content 47 Percent)
    Wastewater systems coatings are coatings that protect wastewater 
containment tanks, liners, roofing, flooring, joint caulking, manholes 
and related structures from corrosion. Protective coatings may cover 
the entire system or be used to fill cracks in systems.
    USDA identified four manufacturers and suppliers of six wastewater 
systems coatings. These four manufacturers and suppliers do not 
necessarily include all manufacturers and suppliers of wastewater 
systems coatings, merely those identified during USDA information 
gathering activities. Information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. In 
addition, manufacturers and stakeholders identified seven test methods 
(as shown below) used in evaluating products within this product 
category. While other test methods and measures of performance, as well 
as performance standards, applicable to products within this product 
category may exist, the seven test methods identified by manufacturers 
are:
Test Methods
 ASTM D2240; Standard Test Method for Rubber Property--
Durometer Hardness
 ASTM D412; Standard Test Methods for Vulcanized Rubber and 
Thermoplastic Elastomers-Tension
 ASTM D624; Standard Test Method for Tear Strength of 
Conventional Vulcanized Rubber and Thermoplastic Elastomers
 ASTM D4060; Standard Test Method for Abrasion Resistance of 
Organic Coatings by the Taber Abraser
 ASTM D638; Standard Test Method for Tensile Properties of 
Plastics
 ASTM D792; Standard Test Methods for Density and Specific 
Gravity (Relative Density) of Plastics by Displacement
 ASTM E96; Standard Test Methods for Water Vapor Transmission 
of Materials

    USDA attempted to gather data on the potential market for 
wastewater systems coatings within the Federal government as discussed 
in the section on agricultural spray adjuvants. These attempts were 
largely unsuccessful. However, many Federal agencies are responsible 
for maintaining wastewater systems and routinely procure wastewater 
systems coatings, or contract with services that procure these 
products. Thus, they have a need for wastewater systems coatings and 
for services that require the use of wastewater systems coatings. 
Designation of wastewater systems coatings will promote the use of 
biobased products, furthering the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics have been 
collected on three wastewater systems coatings. Analyses of the 
environmental and human health benefits and the life-cycle costs of 
biobased wastewater systems coatings were performed for one product 
using the BEES analytical tool. The results of those analyses are 
presented in the background information for Round 9, which is posted on 
the BioPreferred Web site.
12. Water Clarifying Agents (Minimum Biobased Content 92 Percent)
    Water clarifying agents are products designed to clarify and 
improve the quality of water by reducing contaminants such as excess 
nitrites, nitrates, phosphates, ammonia, and built-up sludge from 
decaying waste and other organic matter. These products are typically 
used in lakes, coves, decorative ponds, and aquaculture operations.
    USDA identified 18 manufacturers and suppliers of 39 water 
clarifying agents. The 18 manufacturers and suppliers do not 
necessarily include all manufacturers and suppliers of biobased water 
clarifying agents, merely those identified during USDA information 
gathering activities. Information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. In 
addition, manufacturers and stakeholders identified three test

[[Page 33281]]

methods (as shown below) used in evaluating products within this 
product category. While there may be additional test methods, as well 
as performance standards, product certifications, and other measures of 
performance, applicable to products within this product category, the 
three test methods identified by the manufacturers are:
Test Methods
 ATCC Biosafety Level 1; Minimal potential for causing diseases 
in humans, plants, animals and aquatic life
 NSF Cat. 61; Pretreatment of Potable Water Sources
 EPA/600/4-90/027; Methods for Measuring the Acute Toxicity of 
Effluents and Receiving Waters to Freshwater and Marine Organisms

    USDA attempted to gather data on the potential market for water 
clarifying agents within the Federal government as discussed in the 
section on agricultural spray adjuvants. These attempts were largely 
unsuccessful. However, many Federal agencies routinely perform, or 
procure contract services to perform, maintenance, reclamation, or 
research activities on bodies of water where these products are used. 
Thus, they have a need for water clarifying agents and for services 
that require the use of water clarifying agents. Designation of water 
clarifying agents will promote the use of biobased products, furthering 
the objectives of this program.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, have been 
collected on 11 water clarifying agents. Analyses of the environmental 
and human health benefits and the life-cycle costs of water clarifying 
agents were performed for one product using the BEES analytical tool. 
The results of those analyses are presented in the background 
information for Round 9, which is posted on the BioPreferred Web site.

C. Minimum Biobased Contents

    USDA has determined that setting a minimum biobased content for 
designated product categories is appropriate. Establishing a minimum 
biobased content will encourage competition among manufacturers to 
develop products with higher biobased contents and will prevent 
products with de minimis biobased content from being purchased as a 
means of satisfying the requirements of section 9002. USDA believes 
that it is in the best interest of the Federal preferred procurement 
program for minimum biobased contents to be set at levels that will 
realistically allow products to possess the necessary performance 
attributes and allow them to compete with non-biobased products in 
performance and economics. Setting the minimum biobased content for a 
product category at a level met by several of the tested products will 
provide more products from which procurement officials may choose, will 
encourage the most widespread usage of biobased products by procuring 
agencies, and is expected to accomplish the objectives of section 9002.
    As discussed in Section IV.A of this preamble, USDA relied 
primarily on manufacturers' voluntary submission of information and 
product samples to support the proposed designation of these product 
categories. However, in selecting the proposed minimum biobased content 
for each product category, USDA also considered the biobased content of 
several products for which manufacturers have requested certification 
to use the USDA Certified Biobased Product label. USDA considered these 
data points to be valid and useful in setting the proposed minimum 
biobased content because the labeling program specifies that the 
reported biobased content must be determined by a third-party testing 
entity that is ISO 9001 conformant. Thus, the biobased content data 
presented in the following paragraphs includes test results from the 
labeling portion of the BioPreferred program as well as the test 
results from all of the product samples that were submitted for 
analysis under the Federal biobased products preferred procurement 
program.
    As a result of public comments received on the first designated 
product categories rulemaking proposal, USDA decided to account for the 
slight imprecision in the analytical method used to determine biobased 
content of products when establishing the minimum biobased content. 
Thus, rather than establishing the minimum biobased content for a 
product category at the tested biobased content of the product selected 
as the basis for the minimum value, USDA is establishing the minimum 
biobased content at a level three (3) percentage points less than the 
tested value. USDA believes that this adjustment is appropriate to 
account for the expected variations in analytical results.
    USDA encourages procuring agencies to seek products with the 
highest biobased content that is practicable in all of the proposed 
designated product categories. To assist the procuring agencies in 
determining which products have the highest biobased content, USDA will 
update the information in the biobased products catalog to include the 
biobased content of each product. Those products within each product 
category that have the highest biobased content will be listed first 
and others will be listed in descending order. USDA is specifically 
requesting comments on the proposed minimum biobased contents and also 
requests additional data that can be used to re-evaluate the 
appropriateness of the proposed minimum biobased contents. As the 
market for biobased products develops and USDA obtains additional 
biobased content data, it will re-evaluate the established minimum 
biobased contents of designated product categories and consider raising 
them whenever justified.
    The following paragraphs summarize the information that USDA used 
to propose minimum biobased contents within each proposed designated 
product category.
1. Agricultural Spray Adjuvants
    Thirteen of the 62 biobased agricultural spray adjuvants have been 
tested for biobased content using ASTM D6866.\3\ The biobased contents 
of these 13 biobased agricultural spray adjuvants range from 12 to 100 
percent, as follows: 12, 15, 53, 64, 74, 74, 86, 87, 87, 88, 90, 93, 
and 100. Because there is a significant break between the values for 
the products with the 15 percent and the 53 percent biobased contents, 
USDA considered the need to subcategorize this product category. 
However, USDA found that there was not sufficient information on the 
performance or applicability of the products with the lowest biobased 
contents to justify creating a subcategory based on those two products. 
Because the biobased contents of the remaining 11 products are spread 
over the range of 53 to 100 without any significant gaps or breaks in 
the data, USDA is proposing to set the minimum biobased content for 
agricultural spray adjuvants at 50 percent, based on the product with a 
tested biobased content of 53 percent.
---------------------------------------------------------------------------

    \3\ ASTM D6866, ``Standard Test Methods for Determining the 
Biobased Content of Solid, Liquid, and Gaseous Samples Using 
Radiocarbon Analysis,'' is used to distinguish between carbon from 
fossil resources (non-biobased carbon) and carbon from renewable 
sources (biobased carbon). The biobased content is expressed as the 
percentage of total carbon that is biobased carbon.
---------------------------------------------------------------------------

    USDA requests additional information on potential subcategories 
within this product category. USDA will continue to gather information 
on products within this product category, and if sufficient supporting 
information becomes available, will consider establishing subcategories 
based on

[[Page 33282]]

formulation, performance, or applicability.
2. Animal Cleaning Products
    Seven of the 329 biobased animal cleaning products identified have 
been tested for biobased content using ASTM D6866. The biobased 
contents of these 7 biobased animal cleaning products range from 60 
percent to 97 percent, as follows: 60, 63, 69, 74, 74, 77, and 97 
percent. Because there is a significant break between the values for 
the two products with the highest biobased contents, USDA considered 
the need to subcategorize this product category. However, USDA found 
that there was not sufficient information on the performance or 
applicability of the product with the highest biobased content to 
justify creating a subcategory based on that single product. Because 
the biobased contents of the remaining 5 products are within a narrow 
range, USDA is proposing to set the minimum biobased content for animal 
cleaning products at 57 percent, based on the product with a tested 
biobased content of 60 percent.
3. Deodorants
    Seven of the 82 identified biobased deodorants identified have been 
tested for biobased content using ASTM D6866. The biobased contents of 
these 7 biobased deodorant products range from 25 percent to 100 
percent, as follows: 25, 25, 30, 76, 98, 99, and 100 percent. There are 
two significant breaks in the range of data, one between the 30 and 76 
percent biobased products and another between the 76 and 98 percent 
biobased products. USDA evaluated the available product information to 
determine if there were sufficient differences in formulation, 
performance, or applicability between these product to justify 
subcategorization. However, USDA did not find sufficient information to 
justify subcategories within the product category. USDA also did not 
find any features of the three lowest biobased content products that 
would justify setting the minimum biobased content at a level that 
would include these products. The 4 remaining products all have 
biobased contents above 75 percent. Therefore, USDA is proposing to set 
the minimum biobased content for this product category at 73 percent, 
based on the product with the tested biobased content of 76 percent, 
the lowest of the 4 remaining products within the product category.
    USDA will continue to gather information on products within this 
product category, and if sufficient supporting information becomes 
available, will consider establishing subcategories based on 
formulation, performance, or applicability.
4. Dethatchers
    Six of the 14 biobased dethatchers identified have been tested for 
biobased content using ASTM D6866. The biobased contents of these 6 
biobased dethatchers range from 6 percent to 100 percent, as follows: 
6, 10, 35, 90, 98, and 100 percent. There are two significant breaks in 
the range of data, one between the 10 and 35 percent biobased products 
and another between the 35 and 90 percent biobased products. USDA 
evaluated the available product information to determine if there were 
sufficient differences in formulation, performance, or applicability 
between these products to justify subcategorization. However, USDA did 
not find sufficient information to justify subcategories within the 
product category. USDA also did not find any features of the three 
lowest biobased content products that would justify setting the minimum 
biobased content at a level that would include these products. 
Therefore, USDA is proposing to set the minimum biobased content for 
this product category at 87 percent, based on the product with the 
lowest biobased content of the 3 remaining products within the product 
category.
    USDA will continue to gather information on products within this 
product category, and if sufficient supporting information becomes 
available, will consider establishing subcategories based on 
formulation, performance, or applicability.
5. Fuel Conditioners
    Eight of the 25 biobased fuel conditioners identified have been 
tested for biobased content using ASTM D6866. The biobased contents of 
these 8 biobased fuel conditioners range from 28 percent to 96 percent, 
as follows: 28, 38, 49, 67, 75, 77, 89, and 96 percent.
    There is a significant break in the data between the 49 percent 
biobased product and the 67 percent biobased product. USDA evaluated 
the available product information to determine if there were sufficient 
differences in formulation, performance, or applicability between these 
two product groups to justify subcategorization. However, USDA did not 
find sufficient information to justify subcategories within the product 
category. USDA also did not find any features of the 28, 38, or 49 
percent biobased content products that would justify setting the 
minimum biobased content at a level that would include these products. 
Therefore, USDA is proposing to set the minimum biobased content for 
this product category at 64 percent, based on the product with the 
lowest biobased content of those products in the group of products with 
the higher tested biobased content.
    USDA will continue to gather information on products within this 
product category, and if sufficient supporting information becomes 
available, will consider establishing subcategories based on 
formulation, performance, or applicability.
6. Leather, Vinyl, and Rubber Care Products
    Six of the 79 biobased leather, vinyl, and rubber care products 
identified have been tested for biobased content using ASTM D6866. The 
biobased contents of these 6 biobased leather, vinyl, and rubber care 
products range from 8 percent to 88 percent, as follows: 8, 28, 58, 62, 
70, and 88 percent. There are two significant breaks in the range of 
data, one between the 8 and 28 percent biobased products and another 
between the 28 and 58 percent biobased products. USDA evaluated the 
available product information to determine if there were sufficient 
differences in formulation, performance, or applicability between these 
products to justify subcategorization. However, USDA did not find 
sufficient information to justify subcategories within the product 
category. USDA also did not find any features of the two lowest 
biobased content products that would justify setting the minimum 
biobased content at a level that would include these products. The 
remaining 4 products have biobased contents ranging from 58 to 88 
percent, and there are no significant breaks in the range of data nor 
are there obvious performance or applicability claims that distinguish 
one product from the others. Therefore, USDA is proposing to set the 
minimum biobased content for this product category at 55 percent, based 
on the product with the lowest biobased content of the 4 remaining 
products within the product category.
    USDA will continue to gather information on products within this 
product category, and if sufficient supporting information becomes 
available, will consider establishing subcategories based on 
formulation, performance, or applicability.
7. Lotions and Moisturizers
    Twenty-seven of the 888 biobased lotions and moisturizers 
identified have been tested for biobased content using ASTM D6866. The 
biobased contents of these 27 biobased lotions and moisturizers range 
from 37 to 100 percent, as follows: 37, 47, 62, 66, 66,

[[Page 33283]]

72, 73, 80, 84, 85, 87, 88, 89, 89, 90, 91, 94, 94, 94, 95, 95, 95, 95, 
97, 99, 100, and 100 percent. There is a significant break in the data 
between the 47 percent biobased product and the 62 percent biobased 
product. USDA could find no distinguishing features claimed for the 
products with 37 and 47 percent biobased contents that would lead to 
setting the minimum biobased content at such a low level. The biobased 
contents of the remaining 25 products are reasonably evenly distributed 
between 62 and 100 percent. USDA did not find any performance claims or 
other features that would justify creating subcategories for this 
product category. Because there are no obvious breaks in the data for 
the 25 products with biobased contents above 62 percent, USDA is 
proposing to set the minimum biobased content for this product category 
at 59 percent based on the product with a tested biobased content of 62 
percent.
8. Shaving Products
    Five of the 640 biobased shaving products identified have been 
tested for biobased content using ASTM D6866. The biobased contents of 
these 5 biobased shaving products range from 40 to 100 percent, as 
follows: 40, 95, 99, 99, and 100 percent. USDA found no performance or 
applicability claims to justify setting the minimum biobased content 
for this product category based on the 40 percent product. Because of 
the narrow range and the very high tested biobased content of the four 
remaining products, USDA is proposing to set the minimum biobased 
content for shaving products at 92 percent, based on the product with a 
tested biobased content of 95 percent.
9. Specialty Precision Cleaners and Solvents
    Nine of the 30 biobased specialty precision cleaners and solvents 
identified have been tested for biobased content using ASTM D6866. The 
biobased contents of these 9 biobased specialty precision cleaners and 
solvents range from 59 percent to 100 percent, as follows: 59, 61, 69, 
74, 76, 80, 82, 96, and 100 percent. USDA reviewed the product 
information available for this product category and found that the 
performance of the product with a tested biobased content of 59 percent 
has been demonstrated using numerous aircraft industry standards. 
Because the manufacturers of the other products tested do not make such 
performance claims for their products, USDA is proposing to set the 
minimum biobased content for this product category at 56 percent. USDA 
will continue to gather performance information for products within 
this product category and, if sufficient information is obtained, will 
consider raising the minimum biobased content for the final rule.
10. Sun Care Products
    Eighteen of the 206 biobased sun care products identified have been 
tested for biobased content using ASTM D6866. The biobased contents of 
these 18 biobased sun care products range from 56 to 99 percent, as 
follows: 56, 62, 63, 70, 71, 81, 82, 97, 99, 99, 99, 99, 99, 99, 100, 
100, 100, and 100 percent. The only significant break in the range of 
data is between the 82 and 97 percent products. Because 7 of the 18 
data points are well below the 97 to 100 percent level of the 11 
products above the break, USDA is not proposing to set the minimum 
biobased content based on these products. Because the biobased contents 
of the remaining 7 products are within a fairly narrow range, USDA is 
proposing to set the minimum biobased content for sun care products at 
53 percent, based on the product with a tested biobased content of 56 
percent.
11. Wastewater Systems Coatings
    Five of the six biobased wastewater systems coatings identified 
have been tested for biobased content using ASTM D6866. The biobased 
contents of these 5 biobased wastewater systems coatings are 34, 50, 
62, 62, and 64 percent. Because of the significant gap between the 34 
percent biobased product and the 50 percent product, USDA evaluated the 
available product information to determine if there were sufficient 
differences in formulation, performance, or applicability between the 
products to justify subcategorization. However, USDA did not find 
sufficient information to justify subcategories within the product 
category. USDA also did not find any features of the 34 percent 
biobased content product that would justify setting the minimum 
biobased content at a level that would include this product. Therefore, 
USDA is proposing to set the minimum biobased content for this product 
category at 47 percent, based on the product with the 50 percent 
biobased content.
    USDA will continue to gather information on products within this 
product category, and if sufficient supporting information becomes 
available, will consider establishing subcategories based on 
formulation, performance, or applicability.
12. Water Clarifying Agents
    Ten of the 39 biobased water clarifying agents identified have been 
tested for biobased content using ASTM D6866. The biobased contents of 
these 10 biobased water clarifying agents range from 95 percent to 100 
percent, as follows: 95, 98, 98, 98, 98, 99, 99, 100, 100, and 100 
percent. Because the biobased contents of these 10 products are all 
very high and they are within a narrow range, USDA is proposing to set 
the minimum biobased content for water clarifying agents at 92 percent, 
based on the product with a tested biobased content of 95 percent.

D. Compliance Date for Procurement Preference and Incorporation Into 
Specifications

    USDA intends for the final rule to take effect thirty (30) days 
after publication of the final rule. However, as proposed, procuring 
agencies would have a one-year transition period, starting from the 
date of publication of the final rule, before the procurement 
preference for biobased products within a designated product category 
would take effect.
    USDA is proposing a one-year period before the procurement 
preferences would take effect because it recognizes that Federal 
agencies will need time to incorporate the preferences into procurement 
documents and to revise existing standardized specifications. Both 
section 9002(a)(3) and 7 CFR 3201(c) explicitly acknowledge the need 
for Federal agencies to have sufficient time to revise the affected 
specifications to give preference to biobased products when purchasing 
products within the designated product categories. Procuring agencies 
will need time to evaluate the economic and technological feasibility 
of the available biobased products for their agency-specific uses and 
for compliance with agency-specific requirements, including 
manufacturers' warranties for machinery in which the biobased products 
would be used.
    By the time these product categories are promulgated for 
designation, Federal agencies will have had a minimum of 18 months 
(from the date of this Federal Register notice), and much longer 
considering when the Guidelines were first proposed and these 
requirements were first laid out, to implement these requirements.
    For these reasons, USDA proposes that the mandatory preference for 
biobased products under the designated product categories take effect 
one year after promulgation of the final rule. The one-year period 
provides these agencies

[[Page 33284]]

with ample time to evaluate the economic and technological feasibility 
of biobased products for a specific use and to revise the 
specifications accordingly. However, some agencies may be able to 
complete these processes more expeditiously, and not all uses will 
require extensive analysis or revision of existing specifications. 
Although it is allowing up to one year, USDA encourages procuring 
agencies to implement the procurement preferences as early as 
practicable for procurement actions involving any of the designated 
product categories.

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

    Information used to develop this proposed rule can be found in the 
background information for Round 9, which is posted on the BioPreferred 
Web site located at: http://www.biopreferred.gov. At the BioPreferred 
Web site, click on the ``Federal Procurement Preference'' link on the 
right side of the page and then on the ``Rules and Regulations'' link. 
At the next screen, click on the Supporting Documentation link under 
Round 9 Designation Product Categories under the Proposed Regulations 
section.
    Further, once the product category designations in today's proposal 
become final, manufacturers and vendors voluntarily may make available 
information on specific products, including product and contact 
information, for posting by the Agency on the BioPreferred Web site. 
USDA has begun performing periodic audits of the information displayed 
on the BioPreferred Web site and, where questions arise, is contacting 
the manufacturer or vendor to verify, correct, or remove incorrect or 
out-of-date information. Procuring agencies should contact the 
manufacturers and vendors directly to discuss specific needs and to 
obtain detailed information on the availability and prices of biobased 
products meeting those needs.
    By accessing the BioPreferred Web site, agencies will also be able 
to obtain the voluntarily-posted information on each product 
concerning: Relative price; life-cycle costs; hot links directly to a 
manufacturer's or vendor's Web site (if available); performance 
standards (industry, government, military, ASTM/ISO) that the product 
has been tested against; and environmental and public health 
information from the BEES analysis or the alternative analysis embedded 
in the ASTM Standard D7075, ``Standard Practice for Evaluating and 
Reporting Environmental Performance of Biobased Products.''

VI. 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 proposed 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 proposed rule. As discussed earlier in this 
preamble, USDA made extensive efforts to obtain information on the 
Federal agencies' usage within the 12 designated product categories. 
These efforts were largely unsuccessful. Therefore, attempts to 
determine the economic impacts of today's proposed rule would require 
estimation of the anticipated market penetration of biobased products 
based upon many assumptions. In addition, because agencies have the 
option of not purchasing 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 proposed rule. Consideration was also given to the 
fact that agencies may choose not to procure products within designated 
product categories due to unreasonable price.
1. Summary of Impacts
    Today's proposed rule is expected to have both positive and 
negative impacts to individual businesses, including small businesses. 
USDA anticipates that the biobased Federal preferred procurement 
program will provide additional opportunities for businesses and 
manufacturers to begin supplying products under the proposed 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 
proposed rule. The proposed rule, however, will not affect existing 
purchase orders, nor will it preclude businesses from modifying their 
product lines to meet new requirements for designated biobased 
products. Because the extent to which procuring agencies will find the 
performance, availability and/or price of biobased products acceptable 
is unknown, it is impossible to quantify the actual economic effect of 
the rule.
2. Benefits of the Proposed Rule
    The designation of these 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 proposed rule can result in expanding and strengthening markets 
for biobased materials used in these product categories.
3. Costs of the Proposed Rule
    Like the benefits, the costs of today's proposed rule have not been 
quantified. Two types of costs are involved: Costs to producers of 
products that will compete with the preferred products and costs to 
Federal agencies to provide procurement preference for the preferred 
products. Producers of competing products may face a decrease in demand 
for their products to the extent Federal agencies refrain from 
purchasing their products. However, it is not known to what extent this 
may occur. Pre-award procurement costs for Federal agencies may rise 
minimally as the contracting officials conduct market research to 
evaluate the performance,

[[Page 33285]]

availability and price reasonableness of preferred products before 
making a purchase.

B. Regulatory Flexibility Act (RFA)

    The RFA, 5 U.S.C. 601-602, generally requires an agency to prepare 
a regulatory flexibility analysis of any rule subject to notice and 
comment rulemaking requirements under the Administrative Procedure Act 
or any other statute unless the agency certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    USDA evaluated the potential impacts of its proposed designation of 
these product categories to determine whether its actions would have a 
significant impact on a substantial number of small entities. Because 
the Federal preferred procurement program established under section 
9002 applies only to Federal agencies and their contractors, small 
governmental (city, county, etc.) agencies are not affected. Thus, the 
proposal, if promulgated, will not have a significant economic impact 
on small governmental jurisdictions.
    USDA anticipates that this program will affect entities, both large 
and small, that manufacture or sell biobased products. For example, the 
designation of product categories for Federal 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 Federal 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 proposed for designation for Federal preferred 
procurement in this rule are expected to be included under the 
following NAICS codes: 325320 (pesticide and other agricultural 
chemicals manufacturing), 325411 (medicinal and botanical 
manufacturing), 325412 (pharmaceutical preparation manufacturing), 
325510 (paint and coating manufacturing), 325612 (polish and other 
sanitation goods manufacturing), and 325620 (toilet preparation 
manufacturing). USDA obtained information on these six NAICS categories 
from the U.S. Census Bureau's Economic Census database. USDA found that 
the Economic Census reports about 3,756 companies within these 6 NAICS 
categories and that these companies own a total of about 4,374 
establishments. Thus, the average number of establishments per company 
is about 1.2. The Census data also reported that of the 4,374 
individual establishments, about 4,258 (97.3 percent) have fewer than 
500 employees. USDA also found that the overall average number of 
employees per company among these industries is about 92 and that the 
pharmaceutical preparation manufacturing segment (with an average of 
about 250) is the only segment 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 
(less 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 proposed for designation in this 
rulemaking are typical consumer products widely used by the general 
public and by industrial/commercial establishments that are not subject 
to this rulemaking. Thus, USDA believes that the number of small 
businesses manufacturing non-biobased products within the product 
categories being designated and selling significant quantities of those 
products to government agencies affected by this rulemaking to be 
relatively low. Also, this proposed rule will not affect existing 
purchase orders and it will not preclude procuring agencies from 
continuing to purchase non-biobased products when biobased products do 
not meet the availability, performance, or reasonable price criteria. 
This proposed rule will also not preclude businesses from modifying 
their product lines to meet new specifications or solicitation 
requirements for these products containing biobased materials.
    After considering the economic impacts of this proposed rule on 
small entities, USDA certifies that this action will not have a 
significant economic impact on a substantial number of small entities.
    While not a factor relevant to determining whether the proposed 
rule will have a significant impact for RFA purposes, USDA has 
concluded that the effect of the rule will be to provide positive 
opportunities to businesses engaged in the manufacture of these 
biobased products. Purchase and use of these biobased products by 
procuring agencies increase demand for these products and result in 
private sector development of new technologies, creating business and 
employment opportunities that enhance local, regional, and national 
economies.

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

    This proposed rule has been reviewed in accordance with Executive 
Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights, and does not contain 
policies that would have implications for these rights.

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

F. Unfunded Mandates Reform Act of 1995

    This proposed rule contains no Federal mandates under the 
regulatory provisions of Title II of the Unfunded Mandates Reform Act 
of 1995 (UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal 
governments, or the private sector.

[[Page 33286]]

Therefore, a statement under section 202 of UMRA is not required.

G. Executive Order 12372: Intergovernmental Review of Federal Programs

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

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

    Today's proposed rule does not significantly or uniquely affect 
``one or more Indian tribes, * * * the relationship between the Federal 
Government and Indian tribes, or * * * the distribution of power and 
responsibilities between the Federal Government and Indian tribes.'' 
Thus, no further action is required under Executive Order 13175.

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 proposed 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 
Federal preferred procurement under each designated product category. 
For information pertinent to E-Government Act compliance related to 
this rule, please contact Ron Buckhalt at (202) 205-4008.

List of Subjects in 7 CFR Part 3201

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

CHAPTER XXXII--OFFICE OF PROCUREMENT AND PROPERTY MANAGEMENT

PART 3201--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL 
PROCUREMENT

    1. The authority citation for part 3201 continues to read as 
follows:

    Authority:  7 U.S.C. 8102.

    2. Add Sec. Sec.  3201.88 through 3201.99 to subpart B to read as 
follows:

Sec.
3201.88 Agricultural spray adjuvants.
3201.89 Animal cleaning products.
3201.90 Deodorants.
3201.91 Dethatcher products.
3201.92 Fuel conditioners.
3201.93 Leather, vinyl, and rubber care products.
3201.94 Lotions and moisturizers.
3201.95 Shaving products.
3201.96 Specialty precision cleaners and solvents.
3201.97 Sun care products.
3201.98 Wastewater systems coatings.
3201.99 Water clarifying agents.


Sec.  3201.88  Agricultural spray adjuvants.

    (a) Definition. Products mixed in the spray tank with the 
herbicide, pesticide, or fertilizer formulas that will improve the 
efficiency and the effectiveness of the chemicals, including sticking 
agents, wetting agents, etc.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 50 percent, 
which shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased agricultural spray adjuvants. 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 agricultural spray 
adjuvants.


Sec.  3201.89  Animal cleaning products.

    (a) Definition. Products designed to clean, condition, or remove 
substances from animal hair or other parts of an animal.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 57 percent, 
which shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased animal cleaning 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 animal cleaning 
products.


Sec.  3201.90  Deodorants.

    (a) Definition. Products that are designed for inhibiting or 
masking perspiration and other body odors and that are often combined 
with an antiperspirant.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 73 percent, 
which shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased deodorants. 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 deodorants.


Sec.  3201.91  Dethatchers.

    (a) Definition. Products used to remove non-decomposed plant 
material accumulated in grassy areas.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 87 percent, 
which shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased dethatchers. 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 dethatchers.


Sec.  3201.92  Fuel conditioners.

    (a) Definition. Products formulated to improve the performance and 
efficiency

[[Page 33287]]

of engines by providing benefits such as removing accumulated deposits, 
increasing lubricity, removing moisture, increasing the cetane number, 
and/or preventing microbial growths within the fuel system.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 64 percent, 
which shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased fuel conditioners. 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 fuel conditioners.


Sec.  3201.93  Leather, vinyl, and rubber care products.

    (a) Definition. Products that help clean, nourish, protect, and 
restore leather, vinyl, and rubber surfaces, including cleaners, 
conditioners, protectants, polishes, waxes, etc.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 55 percent, 
which shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased leather, vinyl, and rubber 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 leather, vinyl, 
and rubber care products.


Sec.  3201.94  Lotions and moisturizers.

    (a) Definition. Creams and oils used to soften and treat damaged 
skin.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 59 percent, 
which shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased lotions and moisturizers. 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 lotions and 
moisturizers.


Sec.  3201.95  Shaving products.

    (a) Definition. Products designed for every step of the shaving 
process, including shaving creams, gels, soaps, lotions, and aftershave 
balms.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 92 percent, 
which shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased shaving 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 shaving products.


Sec.  3201.96  Specialty precision cleaners and solvents.

    (a) Definition. Cleaners and solvents used in specialty 
applications. These materials may be used in neat solution, diluted 
with water, or in hand wiping applications.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 56 percent, 
which shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased specialty precision cleaners and solvents. 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 specialty 
precision cleaners and solvents.


Sec.  3201.97  Sun care products.

    (a) Definition. Products including sunscreens, sun blocks, and 
suntan lotions that are topical products that absorb or reflect the 
sun's ultraviolet radiation to protect the skin.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 53 percent, 
which shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased sun 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 sun care products.


Sec.  3201.98  Wastewater systems coatings.

    (a) Definition. Coatings that protect wastewater containment tanks, 
liners, roofing, flooring, joint caulking, manholes and related 
structures from corrosion. Protective coatings may cover the entire 
system or be used to fill cracks in systems.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 47 percent, 
which shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased wastewater systems coatings. 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 wastewater systems 
coatings.


Sec.  3201.99  Water clarifying agents.

    (a) Definition. Products designed to clarify and improve the 
quality of water by reducing contaminants such as excess nitrites, 
nitrates, phosphates, ammonia, and built-up sludge from decaying waste 
and other organic matter.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 92 percent, 
which shall be

[[Page 33288]]

based on the amount of qualifying biobased carbon in the product as a 
percent of the weight (mass) of the total organic carbon in the 
finished product.
    (c) Preference compliance date. No later than [date one year after 
the date of publication of the final rule], procuring agencies, in 
accordance with this part, will give a procurement preference for 
qualifying biobased water clarifying agents. 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 water clarifying 
agents.

    Dated: May 22, 2012.
Pearlie S. Reed,
Assistant Secretary For Administration, U.S. Department of Agriculture.
[FR Doc. 2012-13340 Filed 6-4-12; 8:45 am]
BILLING CODE 3410-93-P