[Federal Register Volume 82, Number 9 (Friday, January 13, 2017)]
[Proposed Rules]
[Pages 4206-4221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31128]


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

DEPARTMENT OF AGRICULTURE

Office of Procurement and Property Management

7 CFR Part 3201

RIN 0599-AA24


Designation of Product Categories for Federal Procurement

AGENCY: Office of Procurement and Property Management, USDA.

ACTION: Notice of proposed rulemaking.

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

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 12 
product categories composed of intermediate ingredient and feedstock 
materials within which biobased products would be afforded procurement 
preference by Federal agencies and their contractors. USDA is also 
proposing minimum biobased contents for each of these product 
categories.

DATES: USDA will accept public comments on this proposed rule until 
March 14, 2017.

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-AA24. 
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-AA24 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: Marie Wheat, 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: Marie Wheat, USDA, Office of 
Procurement and Property Management, Room 361, Reporters Building, 300 
7th St. SW., Washington, DC 20024; email: 
[email protected]; phone (202) 239-4502. Information 
regarding the Federal preferred procurement program (one initiative 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 and Minimum Biobased Contents Proposed for 
Designation
    C. 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 (the 2002 Farm Bill), as amended by the Food, Conservation, and 
Energy Act of 2008 (the 2008 Farm Bill), and further amended by the 
Agricultural Act of 2014 (the 2014 Farm Bill), 7 U.S.C. 8102. (Section 
9002 of the 2002 Farm Bill, as amended by the 2008 and the 2014 Farm 
Bills, is 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.'' Under the provisions specified in the ``Guidelines for 
Designating Biobased Products for Federal Procurement'' (7 CFR part 
3201) (Guidelines), the USDA BioPreferred Program ``designates'' 
product categories to which the preferred procurement requirements 
apply by listing them in subpart B of 7 CFR part 3201.
    The term ``product category'' is used as a generic term in the 
designation process to mean a grouping of specific products that 
perform a similar function. As originally finalized, the Guidelines 
included provisions for the designation of product categories that were 
composed of finished, consumer products such as mobile equipment 
hydraulic fluids, penetrating lubricants, or hand cleaners and 
sanitizers.
    The 2008 and 2014 Farm Bills directed USDA to expand the scope of 
the Guidelines to include the designation of product categories 
composed of intermediate ingredients and feedstock materials. 
Specifically, the 2008 Farm Bill stated that USDA shall ``designate 
those intermediate ingredients and feedstocks that are or can be used 
to produce items that will be subject'' to the Federal preferred 
procurement program. The term ``intermediate ingredient and feedstock'' 
is defined in the Farm Bill as ``a material or compound made in whole 
or in significant part from biological products, including renewable 
agricultural materials (including plant, animal, and marine materials) 
or forestry materials, that are subsequently used to make a more 
complex compound or product.'' The term ``intermediates'' is used in 
the titles of the product categories being proposed for designation 
today to distinguish these proposed categories from the finished, 
consumer products previously designated by USDA. Additionally, in 
section 9001 of the 2014 Farm Bill, the term ``renewable chemical'' is 
defined as ``a monomer, polymer, plastic, formulated product, or 
chemical substance produced from renewable biomass.'' Thus, most 
products that are described as ``renewable chemicals'' will be eligible 
for the Federal preferred procurement program because they meet the 
definition of one or more of the intermediate product categories 
included in today's proposed rule.

[[Page 4207]]

    For example, the chemical substance known as citric acid, if 
biobased, may be considered as a renewable chemical and an intermediate 
ingredient for finished products in the cleaning, personal care, or 
textiles industries. Thus, biobased citric acid could be categorized in 
one or all of the following intermediate product categories that are 
proposed for designation today: Intermediates--Chemicals, 
Intermediates--Textile Processing Materials, Intermediates--Cleaner 
Components, or Intermediates--Personal Care Product Components. 
Additionally, the chemical substance known as oleic acid may be 
considered as a renewable chemical and an intermediate ingredient for 
finished products in the cleaning, personal care, or lubricant 
industries. Therefore, oleic acid could be categorized in one or all of 
the following intermediate product categories that are proposed for 
designation today: Intermediates--Chemicals, Intermediates--Lubricant 
Components, Intermediates--Cleaner Components, or Intermediates--
Personal Care Product Components. These examples show that the 
intermediate product categories being proposed today may accommodate a 
variety of renewable chemical substances.
    Although the Federal government does not typically purchase large 
quantities of intermediate ingredients and feedstock materials, 
designating such materials represents a means to identify and include 
finished products made from such designated materials in the Federal 
preferred procurement program. In the August 1, 2014 Federal Register 
(79 FR 44641), USDA finalized amendments to the Guidelines establishing 
procedures for designating intermediate ingredient or feedstock 
categories. Today's proposed rule follows the established procedures 
for designating intermediate ingredient product categories. Soon, USDA 
will propose designating product categories comprised of finished 
products made from intermediate ingredients that may be categorized 
within the product categories proposed for designation in today's rule. 
Therefore, USDA requests manufacturers and members of the public to 
submit technical information related to the designation of such 
finished product categories to [email protected]. 
Specific technical information to submit includes the following: A 
finished product category name, descriptions of finished products that 
belong in this product category, how these finished products are used, 
any special features of these finished products, estimated or tested 
biobased contents for each finished product, applicable performance 
standards that the finished products meet, and which intermediate 
ingredient and feedstock categories are used to make these finished 
products. Such information will be valuable in supporting the selection 
of product categories for designation but will be evaluated 
independently from today's proposed rule. Please refer to Section IV.B. 
of today's proposed rule for further details on the information 
required to designate product categories for Federal procurement 
preference.
    Once USDA designates a product category, procuring agencies are 
required, with some exceptions, 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 the 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. For example, if a janitorial service company 
purchases cleaning supplies to be used in the performance of a Federal 
contract, the cleaning supplies would be subject to the authority of 
the Federal preferred procurement program. However, cleaning supplies 
purchased to maintain the offices from which the janitorial service 
company manages the Federal contract would be incidental to the 
performance of the contract and, as such, would not be subject to the 
authority of the Federal preferred procurement program. 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. 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.
    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 are categorized within 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 are categorized within the designated 
product categories that meet the reasonable performance standards for 
those needs, and purchase such qualified biobased products to the 
maximum extent practicable as required by section 9002.
    Section 9002(a)(3)(B) requires USDA to provide information to 
procuring agencies on the availability, relative price, and performance 
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 has 
designated 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 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 unique characteristics 
or that meet different performance specifications and, if USDA finds 
these types of differences within a given product category, it intends 
to create subcategories with the

[[Page 4208]]

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 metal cleaners and corrosion remover products are 
required to meet, but it may have information on only one type of metal 
cleaner and corrosion remover 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 has not created subcategories for any of the product 
categories being proposed for designation in today's rule. USDA 
requests public comment, along with supporting data, on the need to 
create subcategories within any of the proposed product categories. If 
public comments are received that support the creation of 
subcategories, USDA will consider the supporting data and may create 
subcategories in the final rule.
    Minimum Biobased Contents. The minimum biobased contents being 
proposed in this rule are based on products for which USDA has biobased 
content test data. USDA obtains biobased content data in conjunction 
with product manufacturer's applications for certification to use the 
USDA Certified Biobased Product label. Products that are certified to 
display the label must undergo biobased content testing by an 
independent, third party testing lab using ASTM D6866, ``Standard Test 
Methods for Determining the Biobased Content of Solid, Liquid, and 
Gaseous Samples Using Radiocarbon Analysis''. These test data become 
part of the BioPreferred Program database and their use in setting the 
minimum biobased content for designated product categories results in a 
more efficient process for both the Program and manufacturers of 
products within the product categories.
    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 for each product category at a level three (3) 
percentage points lower 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.
    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, in a previously proposed product 
category, the biobased contents of 7 tested products ranged from 17 to 
100 percent, as follows: 17, 41, 78, 79, 94, 98, and 100 percent. 
Because this is a very wide range, and because there is a significant 
gap in the data between the 41 percent biobased product and the 78 
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 creating a subcategory based on the 17 percent product or the 
41 percent biobased content product. Further, USDA did not find any 
performance claims that would justify setting the minimum biobased 
content based on either the 17 percent or the 41 percent biobased 
content products. Thus, USDA set the minimum biobased content for this 
product category at 75 percent, based on the product with a tested 
biobased content of 78 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 of 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.
    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 EPA's Comprehensive Procurement 
Guideline (CPG) for products containing recovered (or recycled) 
materials. Because today's proposed rule would designate intermediate 
ingredient product categories rather than categories of finished, 
consumer-use products, USDA does not believe that there is a direct 
overlap between these categories and CPG categories. However, if such 
an overlap situation is discovered, 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

[[Page 4209]]

recovered materials. Federal agencies also may review available 
information on a product's biobased content. Federal agencies may then 
use this information to make purchasing decisions based on the 
sustainability features of the products.
    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, the 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.
    Federal Government Purchase of Sustainable Products. The Federal 
government's sustainable purchasing program includes the following 
three mandatory 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 Chief Sustainability 
Officer (OCSO) 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 or 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 (unless they are 
formulated with exempt ingredients) 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 Safer Choice Program (previously known as the ``Design for the 
Environment'' (DfE) program). Both the Green Seal standards and the 
Safer Choice 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 pH.
    In contrast, some biobased products may be environmentally 
preferable to some products that meet Green Seal standards for 
institutional cleaning products or that have been reformulated in 
accordance with EPA's Safer Choice program. To fully compare products, 
one must look at the ``cradle-to-grave'' impacts of the manufacture, 
use, and disposal of products. USDA has been unable to perform the 
analyses necessary to determine the ``cradle-to-grave'' impacts of 
products within the product categories being proposed for designation 
because of resource constraints.
    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 his or her 
impact on the carbon cycle and reduce the introduction of new fossil 
carbon into the atmosphere.
    Other Federal Preferred Procurement Programs. Federal procurement 
officials should also note that many biobased products may be available 
for purchase by Federal agencies through the AbilityOne Program 
(formerly known as the Javits-Wagner-O'Day (JWOD) program). Under this 
program, members of organizations including the National Industries for 
the Blind (NIB) and SourceAmerica (formerly known as the National 
Industries for the Severely Handicapped) offer products and services 
for preferred procurement by Federal agencies. A search of the 
AbilityOne Program's online catalog (www.abilityone.gov) indicated that 
the types of intermediate ingredient product categories being proposed 
for designation in today's proposed rule are not available through the 
AbilityOne Program. USDA notes, however, that if such materials are 
offered at some point in the future, their procurement 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 are categorized 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.

III. Summary of Today's Proposed Rule

    USDA is proposing to designate the following product categories for 
Federal preferred procurement: Intermediates--Plastic Resins; 
Intermediates--Chemicals; Intermediates--Paint and Coating Components; 
Intermediates--Textile Processing Materials; Intermediates--Foams; 
Intermediates--Fibers and Fabrics; Intermediates--Lubricant Components; 
Intermediates--Binders; Intermediates--Cleaner Components; 
Intermediates--Personal Care Product Components; Intermediates--Oils, 
Fats, and Waxes; and Intermediates--Rubber Materials. In addition, USDA 
is proposing a minimum biobased content for each of these product 
categories and subcategories. Lastly, USDA is proposing a date by which 
Federal agencies must incorporate these designated product categories 
into their procurement specifications (see Section IV.E).
    USDA is working with manufacturers and vendors to make all relevant 
product and manufacturer contact information available on the 
BioPreferred Program's Web site. 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

[[Page 4210]]

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 BioPreferred Program's Web site: http://www.biopreferred.gov.
    Comments. USDA invites public comment on the proposed designation 
of these intermediate ingredient product categories, including the 
definition, proposed minimum biobased content, and any of the relevant 
analyses performed during their selection. 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 Program's 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. Some product categories being proposed for designation today 
have wide ranges of tested biobased contents. For the reasons discussed 
later in this preamble, USDA is proposing a minimum biobased content 
for these product categories that would allow most 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. 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, which 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.
    5. As stated in Section II of today's proposed rule, USDA will soon 
propose designating product categories comprised of finished products 
made from intermediate ingredients that may be categorized within the 
product categories proposed for designation in today's rule. Therefore, 
USDA requests manufacturers and members of the public to submit 
technical information related to the designation of such finished 
product categories to [email protected]. Specific 
technical information to submit includes the following: A finished 
product category name, descriptions of finished products that belong in 
this product category, how these finished products are used, any 
special features of these finished products, estimated or tested 
biobased contents for each finished product, applicable performance 
standards that the finished products meet, and which intermediate 
ingredient and feedstock categories are used to make these finished 
products. Such information will be valuable in supporting the selection 
of product categories for designation but will be evaluated 
independently from today's proposed rule. Please refer to Section IV.B. 
of today's proposed rule for further details on the information 
required to designate product categories for Federal procurement 
preference.

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

A. Background

    When designating 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.
    In considering a product's availability, USDA uses several sources 
of information. The primary source of information for the product 
categories being proposed for designation is USDA's database of 
manufacturers and products that have been certified to display the USDA 
Certified Biobased Product label. In addition, USDA performs Internet 
searches, contacts trade associations and commodity groups, and 
contacts manufacturers and vendors to identify those 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.
    As discussed earlier, USDA has implemented, or will implement, 
several steps intended to educate the manufacturers and other 
stakeholders on the benefits of this program and the need to make 
relevant information, including manufacturer contact information, 
available to procurement officials via the BioPreferred Program Web 
site. 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 information 
on the BioPreferred Program Web site for manufacturers and vendors who 
wish to position their businesses as biobased product vendors to the 
Federal Government. This information can be accessed by clicking on the 
``Selling Biobased'' tab on the left side of the home page of the 
BioPreferred Program's Web site.

[[Page 4211]]

    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 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 
Program's Web site.
    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. 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. Similarly, the documented availability and benefits of 
even a very small percentage of all products that may exist within a 
product category are also considered sufficient to support designation.
    Exemptions. Products that are 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, USDA points 
out that it is not the intent of these exemptions to imply that 
biobased products are inferior to non-biobased products and agencies 
are encouraged to 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 paint remover product as a step in 
refurbishing office furniture on a military base, the paint remover the 
contractor purchases should be a qualifying biobased paint remover. 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.

B. Product Categories and Minimum Biobased Contents Proposed for 
Designation

    In today's proposed rule, USDA is proposing to designate the 
following product categories for the Federal preferred procurement 
program: Intermediates--Plastic Resins; Intermediates--Chemicals; 
Intermediates--Paint and Coating Components; Intermediates--Textile 
Processing Materials; Intermediates--Foams; Intermediates--Fibers and 
Fabrics; Intermediates--Lubricant Components; Intermediates--Binders; 
Intermediates--Cleaner Components; Intermediates--Personal Care Product 
Components; Intermediates--Oils, Fats, and Waxes; and Intermediates--
Rubber Materials.
    USDA has determined that each of these product categories meets the 
necessary statutory requirements--namely, that they are being produced 
with biobased materials 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 anticipates that the designation of these 
intermediate ingredient product categories will facilitate the 
designation of the many categories of finished consumer products that 
are made from these biobased intermediate ingredients. This designation 
of finished products made from designated ingredients was one key 
addition to Section 9002 made by the 2008 Farm Bill.
    In addition, because of the participation by the manufacturers of 
these products in the voluntary labeling initiative, 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.
    The proposed designated product categories are discussed in the 
following sections.
1. Intermediates--Plastic Resins (Minimum Biobased Content 22 Percent)
    Intermediates--Plastic Resins are materials that are typically 
viscous liquids with the ability to harden permanently and may exist in 
liquid or solid (powder or pellets) states. Intermediates--Plastic 
Resins may be

[[Page 4212]]

used in a variety of finished products neat, consisting of a single 
resin, or as a homogeneous blend of two or more neat resins, or 
composite, containing two or more distinct materials such as fiber-
reinforced resins. Additionally, Intermediates--Plastic Resins may be 
used in finished products as additives such as plasticizers, pigments, 
thermal stability agents, or impact modifiers.
    USDA identified 62 manufacturers and suppliers of 150 biobased 
Intermediates--Plastic Resins. These manufacturers and suppliers do not 
include all manufacturers and suppliers of biobased Intermediates--
Plastic Resins, merely those identified through the USDA Certified 
Biobased Products in the BioPreferred Program's database. These 150 
biobased Intermediates--Plastic Resins range in biobased content from 
25 percent to 100 percent, as measured by ASTM D6866. In establishing 
the minimum biobased content requirement for this product category, 
USDA did not find a reason to exclude any of the products categorized 
as Intermediates--Plastic Resins. Thus, the proposed minimum biobased 
content for this product category is 22 percent, based on the products 
with a tested biobased content of 25 percent.
    Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. In addition, some of 
these manufacturers and suppliers identified nine test methods (as 
shown below) used in evaluating products within the 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 test methods 
identified by the manufacturers and suppliers include:
     ASTM D256; Standard Test Methods for Determining the Izod 
Pendulum Impact Resistance of Plastics,
     ASTM D638; Standard Test Method for Tensile Properties of 
Plastics,
     ASTM D790; Standard Test Methods for Flexural Properties 
of Unreinforced and Reinforced Plastics and Electrical Insulating 
Materials,
     ASTM D882; Standard Test Method for Tensile Properties of 
Thin Plastic Sheeting,
     ASTM D6400; Standard Specification for Labeling of 
Plastics Designed to be Aerobically Composted in Municipal or 
Industrial Facilities,
     ASTM D6868; Standard Specification for Labeling of End 
Items that Incorporate Plastics and Polymers as Coatings or Additives 
with Paper and Other Substrates Designed to be Aerobically Composted in 
Municipal or Industrial Facilities,
     BPI Certification; Compostable in Municipal and Industrial 
Composting Facilities
     ISO 9001; Quality Management Systems--Requirements, and
     Vin[ccedil]otte; OK COMPOST.
    USDA has been unable to obtain data on the amount of 
Intermediates--Plastic Resins purchased by Federal procuring agencies. 
As discussed earlier, the primary benefit of designating intermediate 
ingredient product categories is not to promote their direct purchase 
by Federal agencies but, rather, to establish the framework for 
designation of the extensive number of finished products that are made 
from these intermediate ingredients.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics has been 
collected on 150 Intermediates--Plastic Resins and may be found on the 
BioPreferred Program's Web site.
2. Intermediates--Chemicals (Minimum Biobased Content: 22 Percent)
    Intermediates--Chemicals are those used as reactants for organic 
synthesis reactions rather than for their functional properties in a 
chemical mixture; those used as building block chemicals and secondary 
chemicals such as glycerol, succinic acid, propanediol, and monomers 
such as lactic acid and propylene; those used for specific functional 
properties during manufacturing of other products such as pH 
regulators, flocculants, precipitants, neutralizing agents, 
emulsifiers, detergents, wetting agents, foaming agents, or 
dispersants; those that are added to end-use products for their 
specific functional properties including solvents for thinning and 
drying applications but excluding solvents used for cleaning; and those 
used for dyes, pigments, and scents including flavorings for non-food 
products such as lip balm.
    USDA identified 27 manufacturers and suppliers of 70 biobased 
Intermediates--Chemicals. These 27 manufacturers and suppliers do not 
necessarily include all manufacturers and suppliers of Intermediates--
Chemicals, merely those identified through the USDA Certified Biobased 
Products in the BioPreferred Program's database. These 70 biobased 
Intermediates--Chemicals range in biobased content from 25 percent to 
100 percent, as measured by ASTM D6866. In establishing the minimum 
biobased content requirement for this product category, USDA did not 
find a reason to exclude any of the products categorized as 
Intermediates--Chemicals. Thus, the proposed minimum biobased content 
for this product category is 22 percent, based on the products with a 
tested biobased content of 25 percent.
    Relevant product information supplied by these manufacturers and 
suppliers indicates that these products are being used commercially. 
However, these 27 manufacturers and suppliers 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 Program's Web site.
    USDA has been unable to obtain data on the amount of 
Intermediates--Chemicals purchased by Federal procuring agencies. As 
discussed earlier, the primary benefit of designating intermediate 
ingredient product categories is not to promote their direct purchase 
by Federal agencies but, rather, to establish the framework for 
designation of the extensive number of finished products that are made 
from these intermediate ingredients.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, has been 
collected on these 70 Intermediate--Chemicals products and is available 
on the BioPreferred Program's Web site.
3. Intermediates--Paint and Coating Components (Minimum Biobased 
Content 22 Percent)
    Intermediates--Paint and Coating Components are ingredients used to 
formulate finished waterborne or solvent borne paint and coating 
products. Examples of Intermediates--Paint and Coating Components 
include binders, pigments thickeners, curing agents, modifiers, alkyd 
latex resins, polyols, reactive oligomers, or reactive diluents.
    USDA identified 13 manufacturers and suppliers of 51 biobased 
Intermediates--Paint and Coating Components. These manufacturers and 
suppliers do not include all manufacturers and suppliers of biobased

[[Page 4213]]

Intermediates--Paint and Coating Components, merely those identified 
through the USDA Certified Biobased Products in the BioPreferred 
Program's database. These 51 biobased Intermediates--Paint and Coating 
Components range in biobased content from 25 percent to 100 percent, as 
measured by ASTM D6866. In establishing the minimum biobased content 
requirement for this product category, USDA did not find a reason to 
exclude any of the products categorized as Intermediates--Paint and 
Coating Components. Thus, the proposed minimum biobased content for 
this product category is 22 percent, based on the products with a 
tested biobased content of 25 percent.
    Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. However, these 
manufacturers and suppliers 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 
Program's Web site.
    USDA has been unable to obtain data on the amount of 
Intermediates--Paint and Coating Components purchased by Federal 
procuring agencies. As discussed earlier, the primary benefit of 
designating intermediate ingredient product categories is not to 
promote their direct purchase by Federal agencies but, rather, to 
establish the framework for designation of the extensive number of 
finished products that are made from these intermediate ingredients.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics has been 
collected on these 51 Intermediates--Paint and Coating Components and 
may be found on the BioPreferred Program's Web site.
4. Intermediates--Textile Processing Materials (Minimum Biobased 
Content 22 Percent)
    Intermediates--Textile Processing Materials are used to treat or 
finish textiles for the purposes of altering textile characteristics 
such as color, fading, wrinkle resistance, texture, or moisture 
management.
    USDA identified four manufacturers and suppliers of 24 biobased 
Intermediates--Textile Processing Materials. These manufacturers and 
suppliers do not include all manufacturers and suppliers of biobased 
Intermediates--Textile Processing Materials, merely those identified 
through the USDA Certified Biobased Products in the BioPreferred 
Program's database. These 24 biobased Intermediates--Textile Processing 
Materials range in biobased content from 25 percent to 98 percent, as 
measured by ASTM D6866. In establishing the minimum biobased content 
requirement for this product category, USDA did not find a reason to 
exclude any of the products categorized as Intermediates--Textile 
Processing Materials. Thus, the proposed minimum biobased content for 
this product category is 22 percent, based on the products with a 
tested biobased content of 25 percent.
    Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. However, these 
manufacturers and suppliers 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 
Program's Web site.
    USDA has been unable to obtain data on the amount of 
Intermediates--Textile Processing Materials purchased by Federal 
procuring agencies. As discussed earlier, the primary benefit of 
designating intermediate ingredient product categories is not to 
promote their direct purchase by Federal agencies but, rather, to 
establish the framework for designation of the extensive number of 
finished products that are made from these intermediate ingredients.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, has been 
collected on these 24 Intermediates--Textile Processing Materials and 
may be found on the BioPreferred Program's Web site.
5. Intermediates--Foams (Minimum Biobased Content 22 Percent)
    Intermediates--Foams are dry polymer foams used for non-
construction purposes, such as cushions for furniture.
    USDA identified seven manufacturers and suppliers of eight biobased 
Intermediates--Foams. These manufacturers and suppliers do not include 
all manufacturers and suppliers of biobased Intermediates--Foams, 
merely those identified through the USDA Certified Biobased Products in 
the BioPreferred Program's database. These eight biobased 
Intermediates--Foams were each measured by ASTM D6866 to have 25, 30, 
30, 33, 33, 40, 53, and 53 percent biobased contents. In establishing 
the minimum biobased content requirement for this product category, 
USDA did not find a reason to exclude any of the products categorized 
as Intermediates--Foams. Thus, the proposed minimum biobased content 
for this product category is 22 percent, based on the product with a 
tested biobased content of 25 percent.
    Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. In addition, some of 
these manufacturers and suppliers identified three test methods (as 
shown below) used in evaluating products within the 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 test methods 
identified by the manufacturers and suppliers include:
     ASTM D97; Standard Test Method for Pour Point of Petroleum 
Products,
     ASTM D6868; Standard Specification for Labeling of End 
Items that Incorporate Plastics and Polymers as Coatings or Additives 
with Paper and Other Substrates Designed to be Aerobically Composted in 
Municipal or Industrial Facilities, and
     California Technical Bulletin 117; Requirements, Test 
Procedure and Apparatus for Testing the Flame Retardance of Resilient 
Filling Materials Used In Upholstered Furniture.
    USDA has been unable to obtain data on the amount of 
Intermediates--Foams purchased by Federal procuring agencies. As 
discussed earlier, the primary benefit of designating intermediate 
ingredient product categories is not to promote their direct purchase 
by Federal agencies but, rather, to establish the framework for

[[Page 4214]]

designation of the extensive number of finished products that are made 
from these intermediate ingredients.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, has been 
collected on these eight Intermediates--Foams and may be found on the 
BioPreferred Program's Web site.
6. Intermediates--Fibers and Fabrics (Minimum Biobased Content 25 
Percent)
    Intermediates--Fibers and Fabrics encompasses plant and animal 
fibers, fibers made from plant-derived polymers that are not yet formed 
into more complex products such as carpet or fabrics, fabrics made from 
natural fibers, fabrics made from synthetic fibers, or fabrics made 
from a blend of the two. These materials are used to manufacture 
finished products such as clothing, upholstery, or drapes.
    USDA identified 16 manufacturers and suppliers of 48 biobased 
Intermediates--Fibers and Fabrics. These manufacturers and suppliers do 
not include all manufacturers and suppliers of biobased Intermediates--
Fibers and Fabrics, merely those identified through the USDA Certified 
Biobased Products in the BioPreferred Program's database. These 48 
biobased Intermediates--Fibers and Fabrics range in biobased content 
from 28 percent to 100 percent, as measured by ASTM D6866. In 
establishing the minimum biobased content requirement for this product 
category, USDA did not find a reason to exclude any of the products 
categorized as Intermediates--Fibers and Fabrics. Thus, the proposed 
minimum biobased content for this product category is 25 percent, based 
on the product with a tested biobased content of 28 percent.
    Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. In addition, some of 
these manufacturers and suppliers identified seven test methods (as 
shown below) used in evaluating products within the 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 test methods 
identified by the manufacturers and suppliers include:
     AATCC 79; Absorbency of Textiles,
     AATCC 197; Vertical Wicking of Textiles,
     AATCC 198; Horizontal Wicking of Textiles,
     ACT Physical Properties Performance Guidelines,
     ASTM D737; Standard Test Method for Air Permeability of 
Textile Fabrics,
     ASTM D6868; Standard Specification for Labeling of End 
Items that Incorporate Plastics and Polymers as Coatings or Additives 
with Paper and Other Substrates Designed to be Aerobically Composted in 
Municipal or Industrial Facilities, and
     Oeko-Tex Standard 100; Tests for Harmful Substances in 
Textiles.
    USDA has been unable to obtain data on the amount of 
Intermediates--Fibers and Fabrics purchased by Federal procuring 
agencies. As discussed earlier, the primary benefit of designating 
intermediate ingredient product categories is not to promote their 
direct purchase by Federal agencies but, rather, to establish the 
framework for designation of the extensive number of finished products 
that are made from these intermediate ingredients.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, has been 
collected on 48 Intermediates--Fibers and Fabrics and may be found on 
the BioPreferred Program's Web site.
7. Intermediates--Lubricant Components (Minimum Biobased Content 44 
Percent)
    Intermediates--Lubricant Components are ingredients that used 
specifically to formulate finished lubricant products. Examples of 
Intermediates--Lubricant Components include base oils, base fluids, 
additives, or friction modifiers.
    USDA identified nine manufacturers and suppliers of 35 biobased 
Intermediates--Lubricant Components. These manufacturers and suppliers 
do not include all manufacturers and suppliers of biobased 
Intermediates--Lubricant Components, merely those identified through 
the USDA Certified Biobased Products in the BioPreferred Program's 
database. These 35 biobased Intermediates--Lubricant Components range 
in biobased content from 47 percent to 100 percent, as measured by ASTM 
D6866. In establishing the minimum biobased content requirement for 
this product category, USDA did not find a reason to exclude any of the 
products categorized as Intermediates--Lubricants. Thus, the proposed 
minimum biobased content for this product category is 44 percent, based 
on the products with a tested biobased content of 47 percent.
    Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. In addition, one of 
these manufacturers and suppliers identified one test method used in 
evaluating products within the 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 test method identified by 
the manufacturer and supplier is NSF H1 Nonfood Compound Product 
Registration Program.
    USDA has been unable to obtain data on the amount of 
Intermediates--Lubricant Components purchased by Federal procuring 
agencies. As discussed earlier, the primary benefit of designating 
intermediate ingredient product categories is not to promote their 
direct purchase by Federal agencies but, rather, to establish the 
framework for designation of the extensive number of finished products 
that are made from these intermediate ingredients.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, has been 
collected on these 35 Intermediates--Lubricant Components and may be 
found on the BioPreferred Program's Web site.
8. Intermediates--Binders (Minimum Biobased Content 47 Percent)
    Intermediates--Binders are materials used to provide cohesiveness 
throughout an entire finished product. The product category does not 
include adhesives and glues that are finished products used to attach 
the surfaces of two or more distinct and separate components to one 
another.
    USDA identified one manufacturer and supplier of one biobased 
Intermediates--Binders. This manufacturer and supplier is not expected 
to be the only manufacturer and supplier of biobased Intermediates--
Binders, merely the only one that was identified through the USDA 
Certified Biobased Products in the BioPreferred Program's database. The 
biobased content of this Intermediates--Binders product is 50 percent, 
as measured by ASTM D6866. As discussed earlier, the tested value was 
reduced by 3 percentage points to account for the inherent variability 
in the test method. Thus, the proposed minimum biobased content for 
this product category is 47 percent.
    Information supplied by this manufacturer indicates that this 
product is being used commercially. However, this manufacturer and 
supplier did not identify any applicable performance

[[Page 4215]]

standards, test methods, or other industry measures of performance 
against which this product has 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 
Program's Web site.
    USDA has been unable to obtain data on the amount of 
Intermediates--Binders purchased by Federal procuring agencies. As 
discussed earlier, the primary benefit of designating intermediate 
ingredient product categories is not to promote their direct purchase 
by Federal agencies but, rather, to establish the framework for 
designation of the extensive number of finished products that are made 
from these intermediate ingredients.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, has been 
collected on this one Intermediates--Binders product and may be found 
on the BioPreferred Program's Web site.
9. Intermediates--Cleaner Components (Minimum Biobased Content 55 
Percent)
    Intermediates--Cleaner Components are intermediate ingredients used 
specifically for formulating finished cleaning products. Examples of 
Intermediates--Cleaner Components include chelating agents, 
surfactants, hydrotropes, fatty acids, or solvents.
    USDA identified eight manufacturers and suppliers of 19 different 
biobased Intermediates--Cleaner Components. These eight manufacturers 
and suppliers do not necessarily include all manufacturers and 
suppliers of biobased Intermediates--Cleaner Components, merely those 
identified through the USDA Certified Biobased Products in the 
BioPreferred Program's database. These 19 biobased Intermediates--
Cleaner Components range in biobased content from 58 percent to 99 
percent, as measured by ASTM D6866. In establishing the minimum 
biobased content requirement for this product category, USDA did not 
find a reason to exclude any of the products categorized as 
Intermediates--Cleaner Components. Thus, the proposed minimum biobased 
content for this product category is 55 percent, based on the products 
with a tested biobased content of 58 percent.
    Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. In addition, one of 
the manufacturers and suppliers identified five test methods (as shown 
below) used in evaluating its product within the 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 test methods 
identified by the manufacturer and supplier include:
     ASTM D93; Standard Test Methods for Flash Point by Pensky-
Martens Closed Cup Tester,
     ASTM D1133; Standard Test Method for Kauri-Butanol Value 
of Hydrocarbon Solvents,
     ASTM D2887; Standard Test Method for Boiling Range 
Distribution of Petroleum Fractions by Gas Chromatography, and
     EPA Method 24; Determination of Volatile Matter Content, 
Water Content, Density, Volume Solids, and Weight Solids of Surface 
Coatings.
    USDA has been unable to obtain data on the amount of 
Intermediates--Cleaner Components purchased by Federal procuring 
agencies. As discussed earlier, the primary benefit of designating 
intermediate ingredient product categories is not to promote their 
direct purchase by Federal agencies but, rather, to establish the 
framework for designation of the extensive number of finished products 
that are made from these intermediate ingredients.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, has been 
collected on these 19 Intermediates--Cleaner Components and may be 
found on the BioPreferred Program's Web site.
10. Intermediates--Personal Care Product Components (Minimum Biobased 
Content 62 Percent)
    Intermediates--Personal Care Product Components are ingredients 
used to formulate finished personal care products. Examples of 
Intermediates--Personal Care Product Components include surfactants, 
oils, humectants, emollients, or emulsifiers.
    USDA identified nine manufacturers and suppliers of 37 biobased 
Intermediates--Personal Care Product Components. These manufacturers 
and suppliers do not include all manufacturers and suppliers of 
biobased Intermediates--Personal Care Product Components, merely those 
identified through the USDA Certified Biobased Products in the 
BioPreferred Program's database. These 37 biobased Intermediates--
Personal Care Product Components range in biobased content from 65 
percent to 100 percent, as measured by ASTM D6866. In establishing the 
minimum biobased content requirement for this product category, USDA 
did not find a reason to exclude any of the products categorized as 
Intermediates--Personal Care Product Components. Thus, the proposed 
minimum biobased content for this product category is 62 percent, based 
on the products with a tested biobased content of 65 percent.
    Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. In addition, some 
these manufacturers and suppliers identified 3 test methods (as shown 
below) used in evaluating products within the 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 test methods identified 
by the manufacturers and suppliers include:
     ASTM D6868; Standard Specification for Labeling of End 
Items that Incorporate Plastics and Polymers as Coatings or Additives 
with Paper and Other Substrates Designed to be Aerobically Composted in 
Municipal or Industrial Facilities, and
     EPA Method 24; Determination of Volatile Matter Content, 
Water Content, Density, Volume Solids, and Weight Solids of Surface 
Coatings.
    USDA has been unable to obtain data on the amount of 
Intermediates--Personal Care Product Components purchased by Federal 
procuring agencies. As discussed earlier, the primary benefit of 
designating intermediate ingredient product categories is not to 
promote their direct purchase by Federal agencies but, rather, to 
establish the framework for designation of the extensive number of 
finished products that are made from these intermediate ingredients.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, has been 
collected on 37 Intermediates--Personal Care Product Components and may 
be found on the BioPreferred Program's Web site.

[[Page 4216]]

11. Intermediates--Oils, Fats, and Waxes (Minimum Biobased Content 65 
Percent)
    Intermediates--Oils, Fats, and Waxes include raw or modified fats 
and oils derived from plants or animals.
    USDA identified five manufacturers and suppliers of 24 biobased 
Intermediates--Oils, Fats, and Waxes. These manufacturers and suppliers 
do not include all manufacturers and suppliers of biobased 
Intermediates--Oils, Fats, and Waxes, merely those identified through 
the USDA Certified Biobased Products in the BioPreferred Program's 
database. These 24 biobased Intermediates--Oils, Fats, and Waxes range 
in biobased content from 68 percent to 100 percent, as measured by ASTM 
D6866. In establishing the minimum biobased content requirement for 
this product category, USDA did not find a reason to exclude any of the 
products categorized as Intermediates--Oils, Fats, and Waxes. Thus, the 
proposed minimum biobased content for this product category is 65 
percent, based on the products with a tested biobased content of 68 
percent.
    Information supplied by these manufacturers and suppliers indicates 
that these products are being used commercially. In addition, one of 
these manufacturers and suppliers identified one test method used in 
evaluating a product within the 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 test method identified by 
the manufacturer and supplier is California Technical Bulletin 117.
    USDA has been unable to obtain data on the amount of 
Intermediates--Oils, Fats, and Waxes purchased by Federal procuring 
agencies. As discussed earlier, the primary benefit of designating 
intermediate ingredient product categories is not to promote their 
direct purchase by Federal agencies but, rather, to establish the 
framework for designation of the extensive number of finished products 
that are made from these intermediate ingredients.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, has been 
collected on these 24 Intermediates--Oils, Fats, and Waxes and may be 
found on the BioPreferred Program's Web site.
12. Intermediates--Rubber Materials (Minimum Biobased Content 96 
Percent)
    Intermediates--Rubber Materials are used in finished products such 
as rubber gloves, vehicle tires, footwear, sports apparel and 
equipment, bedding and pillow foams, tubing, catheters, gasketing, or 
cosmetic adhesives and bases.
    USDA identified one manufacturer and supplier of two biobased 
Intermediates--Rubber Materials. This manufacturer and supplier is not 
expected to be the only manufacturer and supplier of biobased 
Intermediates--Rubber Materials, merely the only one identified through 
the USDA Certified Biobased Products in the BioPreferred Program's 
database. These two biobased Intermediates--Rubber Materials have 
biobased contents of 99 percent and 100 percent, as measured by ASTM 
D6866. In establishing the minimum biobased content requirement for 
this product category, USDA did not find a reason to exclude any of the 
products categorized as Intermediates--Rubber Materials. Thus, the 
proposed minimum biobased content for this product category is 96 
percent, based on the products with a tested biobased content of 99 
percent.
    The Information supplied by this manufacturer and supplier 
indicates that these products are being used commercially. However, 
this manufacturer and supplier 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 Program's Web site.
    USDA has been unable to obtain data on the amount of 
Intermediates--Rubber Materials purchased by Federal procuring 
agencies. As discussed earlier, the primary benefit of designating 
intermediate ingredient product categories is not to promote their 
direct purchase by Federal agencies but, rather, to establish the 
framework for designation of the extensive number of finished products 
that are made from these intermediate ingredients.
    Specific product information, including company contact, intended 
use, biobased content, and performance characteristics, has been 
collected on these two Intermediates--Rubber Materials and may be found 
on the BioPreferred Program's Web site.

C. 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. USDA proposes that starting from 
the date of publication of the final rule, procuring agencies have a 
one-year transition period before the procurement preference for 
biobased products within a designated product category takes effect. 
This proposed timeframe is based on section 9002(a)(3)(B)(viii) of the 
2014 Farm Bill, which clearly provides a compliance date for amendments 
to the Guidelines of up to one year after publication of a final rule.
    Therefore, USDA is proposing a one-year period before the 
procurement preferences would take effect because, as indicated in 7 
CFR 3201.4(c), it recognizes that Federal agencies will need sufficient 
time to incorporate the preferences into procurement documents and to 
revise existing standardized specifications. Additionally, 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.
    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.
    Therefore, USDA proposes that the mandatory preference for biobased 
products under the designated product categories take effect one year 
after promulgation of the final rule, which will provide these agencies 
with ample time to evaluate the economic and technological feasibility 
of biobased products for a specific use and to revise the 
specifications accordingly. 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

[[Page 4217]]

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?

    The information used to develop this proposed rule was voluntarily 
submitted by the manufacturers of products that are categorized within 
the product categories being proposed. These manufacturers sought to 
participate in the BioPreferred Program's USDA Certified Biobased 
Product labeling initiative and submitted product information necessary 
for certification. Information on each of these products can be found 
on the BioPreferred Program's Web site (http://www.biopreferred.gov).
    Further, once the product category designations in today's proposal 
become final, manufacturers and vendors voluntarily may make available 
additional information on specific products for posting by the Agency 
on the BioPreferred Program's Web site. USDA has begun performing 
periodic audits of the information displayed on the BioPreferred 
Program's 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 Program's Web site, agencies may also 
be able to obtain any 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.

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. USDA attempted 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. 
These positive and negative impacts are expected to be minimized 
because Federal agencies do not typically purchase significant 
quantities of the types of intermediate ingredient products that are 
the subject of today's proposed rule. However, USDA anticipates that 
the Federal preferred procurement program will ultimately 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, which 
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, 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

[[Page 4218]]

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 biobased product industry as a whole is still a 
developing market, it is unknown how many businesses will ultimately be 
affected by today's proposed rule. 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 this industry is still 
materializing. As such, USDA anticipates that 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: 324191 (petroleum lubricating oil and grease 
manufacturing), 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 seven NAICS categories from the U.S. 
Census Bureau's Economic Census database. USDA found that the Economic 
Census reports about 4,756 companies within these 7 NAICS categories 
and that these companies own a total of about 5,374 establishments. 
Thus, the average number of establishments per company is about 1.13. 
The Census data also reported that of the 5,374 individual 
establishments, about 5,228 (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 meet 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 used to produce 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 proposed rule has been reviewed in accordance with Executive 
Order 12988, Civil Justice Reform. This proposed rule does not preempt 
State or local laws, is not intended to have retroactive effect, and 
does not involve administrative appeals.

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

[[Page 4219]]

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

    This 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 Marie Wheat at (202) 239-4502.

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

0
1. The authority citation for part 3201 continues to read as follows:

    Authority:  7 U.S.C. 8102.

0
2. Add Sec. Sec.  3201.108 through 3201.119 to subpart B to read as 
follows:

Sec.
3201.108 Intermediates--Plastic Resins.
3201.109 Intermediates--Chemicals.
3201.110 Intermediates--Paint and Coating Components.
3201.111 Intermediates--Textile Processing Materials.
3201.112 Intermediates--Foams.
3201.113 Intermediates--Fibers and Fabrics.
3201.114 Intermediates--Lubricant Components.
3201.115 Intermediates--Binders.
3201.116 Intermediates--Cleaner Components.
3201.117 Intermediates--Personal Care Product Components.
3201.118 Intermediates--Oils, Fats, and Waxes.
3201.119 Intermediates--Rubber Materials.


Sec.  3201.108  Intermediates--Plastic Resins.

    (a) Definition. Intermediates--Plastic Resins are materials that 
are typically viscous liquids with the ability to harden permanently 
and may exist in liquid or solid (powder or pellets) states. 
Intermediates--Plastic Resins may be used in a variety of finished 
products neat, consisting of a single resin, or a homogeneous blend of 
two or more neat resins, or composite, containing two or more distinct 
materials such as fiber-reinforced resins.
    Additionally, Intermediates--Plastic Resins may be used in finished 
products as additives such as plasticizers, pigments, thermal stability 
agents, or impact modifiers.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 22 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 Intermediates--Plastic Resins. By that date, 
Federal agencies responsible for drafting or reviewing specifications 
for products to be procured shall ensure that the relevant 
specifications require the use of biobased Intermediates--Plastic 
Resins.


Sec.  3201.109  Intermediates--Chemicals.

    (a) Definition. Intermediates--Chemicals are those used as 
reactants for organic synthesis reactions rather than for their 
functional properties in a chemical mixture; those used as building 
block chemicals and secondary chemicals such as glycerol, succinic 
acid, propanediol, and monomers such as lactic acid and propylene; 
those used for specific functional properties during manufacturing of 
other products such as pH regulators, flocculants, precipitants, 
neutralizing agents, emulsifiers, detergents, wetting agents, foaming 
agents, or dispersants; those that are added to end-use products for 
their specific functional properties including solvents for thinning 
and drying applications but excluding solvents used for cleaning; and 
those used for dyes, pigments, and scents including flavorings for non-
food products such as lip balm.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 22 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 Intermediates--Chemicals. By that date, Federal 
agencies responsible for drafting or reviewing specifications for 
products to be procured shall ensure that the relevant specifications 
require the use of biobased Intermediates--Chemicals.


Sec.  3201.110  Intermediates--Paint and Coating Components.

    (a) Definition. Intermediates--Paint and Coating Components are 
ingredients used to formulate finished waterborne or solvent borne 
paint and coating products. Examples of Intermediates--Paint and 
Coating Components include binders, pigments thickeners, curing agents, 
modifiers, alkyd latex resins, polyols, reactive oligomers, or reactive 
diluents.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 22 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 Intermediates--Paint and Coating Components. By 
that date, Federal agencies responsible for drafting or reviewing 
specifications for products to

[[Page 4220]]

be procured shall ensure that the relevant specifications require the 
use of biobased Intermediates--Paint and Coating Components.


Sec.  3201.111  Intermediates--Textile Processing Materials.

    (a) Definition. Intermediates--Textile Processing Materials are 
used to treat or finish textiles for the purposes of altering textile 
characteristics such as color, fading, wrinkle resistance, texture, or 
moisture management.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 22 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 Intermediates--Textile Processing Materials. By 
that date, Federal agencies responsible for drafting or reviewing 
specifications for products to be procured shall ensure that the 
relevant specifications require the use of biobased Intermediates--
Textile Processing Materials.


Sec.  3201.112  Intermediates--Foams.

    (a) Definition. Intermediates--Foams are dry polymer foams used for 
non-construction purposes, such as cushions for furniture.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 22 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 Intermediates--Foams. By that date, Federal 
agencies responsible for drafting or reviewing specifications for 
products to be procured shall ensure that the relevant specifications 
require the use of biobased Intermediates--Foams.


Sec.  3201.113  Intermediates--Fibers and Fabrics.

    (a) Definition. Intermediates--Fibers and Fabrics encompasses plant 
and animal fibers, fibers made from plant-derived polymers that are not 
yet formed into more complex products such as carpet or fabrics, 
fabrics made from natural fibers, fabrics made from synthetic fibers, 
or fabrics made from a blend of the two. These materials are used to 
manufacture finished products such as clothing, upholstery, or drapes.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 25 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 Intermediates--Fibers and Fabrics. By that date, 
Federal agencies responsible for drafting or reviewing specifications 
for products to be procured shall ensure that the relevant 
specifications require the use of biobased Intermediates--Fibers and 
Fabrics.


Sec.  3201.114  Intermediates--Lubricant Components.

    (a) Definition. Intermediates--Lubricant Components are ingredients 
that used specifically to formulate finished lubricant products. 
Examples of Intermediates--Lubricant Components include base oils, base 
fluids, additives, or friction modifiers.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 44 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 Intermediates--Lubricant Components. By that date, 
Federal agencies responsible for drafting or reviewing specifications 
for products to be procured shall ensure that the relevant 
specifications require the use of biobased Intermediates--Lubricant 
Components.


Sec.  3201.115  Intermediates--Binders.

    (a) Definition. Intermediates--Binders are materials used to 
provide cohesiveness throughout an entire finished product. The product 
category does not include adhesives and glues that are finished 
products used to attach the surfaces of two or more distinct and 
separate components to one another.
    (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 Intermediates--Binders. By that date, Federal 
agencies responsible for drafting or reviewing specifications for 
products to be procured shall ensure that the relevant specifications 
require the use of biobased Intermediates--Binders.


Sec.  3201.116  Intermediates--Cleaner Components.

    (a) Definition. Intermediates--Cleaner Components are intermediate 
ingredients used specifically for formulating finished cleaning 
products. Examples of Intermediates--Cleaner Components include 
chelating agents, surfactants, hydrotropes, fatty acids, or solvents.
    (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 Intermediates--Cleaner Components. By that date, 
Federal agencies responsible for drafting or reviewing specifications 
for products to be procured shall ensure that the relevant 
specifications require the use of biobased Intermediates--Cleaner 
Components.


Sec.  3201.117  Intermediates--Personal Care Product Components.

    (a) Definition. Intermediates--Personal Care Product Components are 
ingredients used to formulate finished personal care products. Examples 
of Intermediates--Personal Care Product Components include surfactants, 
oils, humectants, emollients, or emulsifiers.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 62 percent, 
which shall be based on the amount of qualifying biobased carbon in the 
product as a

[[Page 4221]]

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 Intermediates--Personal Care Product Components. By 
that date, Federal agencies responsible for drafting or reviewing 
specifications for products to be procured shall ensure that the 
relevant specifications require the use of biobased Intermediates--
Personal Care Product Components.


Sec.  3201.118   Intermediates--Oils, Fats, and Waxes.

    (a) Definition. Intermediates--Oils, Fats, and Waxes include raw or 
modified fats and oils derived from plants or animals.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 65 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 Intermediates--Oils, Fats, and Waxes. By that date, 
Federal agencies responsible for drafting or reviewing specifications 
for products to be procured shall ensure that the relevant 
specifications require the use of biobased Intermediates--Oils, Fats, 
and Waxes.


Sec.  3201.119  Intermediates--Rubber Materials.

    (a) Definition. Intermediates--Rubber Materials are used in 
finished products such as rubber gloves, vehicle tires, footwear, 
sports apparel and equipment, bedding and pillow foams, tubing, 
catheters, gasketing, or cosmetic adhesives and bases.
    (b) Minimum biobased content. The Federal preferred procurement 
product must have a minimum biobased content of at least 96 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 Intermediates--Rubber Materials. By that date, 
Federal agencies responsible for drafting or reviewing specifications 
for products to be procured shall ensure that the relevant 
specifications require the use of biobased Intermediates--Rubber 
Materials.

    Dated: December 16, 2016.
Gregory L. Parham,
Assistant Secretary for Administration, U.S. Department of Agriculture.
[FR Doc. 2016-31128 Filed 1-12-17; 8:45 am]
BILLING CODE 3410-93-P