[Federal Register Volume 77, Number 108 (Tuesday, June 5, 2012)]
[Proposed Rules]
[Pages 33270-33288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13340]
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Vol. 77
Tuesday,
No. 108
June 5, 2012
Part II
Department of Agriculture
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Office of Procurement and Property Management
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7 CFR Part 3201
Designation of Product Categories for Federal Procurement; Proposed
Rule
Federal Register / Vol. 77, No. 108 / Tuesday, June 5, 2012 /
Proposed Rules
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DEPARTMENT OF AGRICULTURE
Office of Procurement and Property Management
7 CFR Part 3201
RIN 0599-AA15
Designation of Product Categories for Federal Procurement
AGENCY: Office of Procurement and Property Management, USDA.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to
amend the Guidelines for Designating Biobased Products for Federal
Procurement (Guidelines) to add 12 sections that will designate the
following product categories within which biobased products would be
afforded Federal procurement preference: Agricultural spray adjuvants;
animal cleaning products; deodorants; dethatcher products; fuel
conditioners; leather, vinyl, and rubber care products; lotions and
moisturizers; shaving products; specialty precision cleaners and
solvents; sun care products; wastewater systems coatings; and water
clarifying agents. USDA is also proposing minimum biobased contents for
each of these product categories.
DATES: USDA will accept public comments on this proposed rule until
August 6, 2012.
ADDRESSES: You may submit comments by any of the following methods. All
submissions received must include the agency name and Regulatory
Information Number (RIN). The RIN for this rulemaking is 0599-AA15.
Also, please identify submittals as pertaining to the ``Proposed
Designation of Product Categories.''
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include RIN number 0599-AA15
and ``Proposed Designation of Product Categories'' on the subject line.
Please include your name and address in your message.
Mail/commercial/hand delivery: Mail or deliver your
comments to: Ron Buckhalt, USDA, Office of Procurement and Property
Management, Room 361, Reporters Building, 300 7th St. SW., Washington,
DC 20024.
Persons with disabilities who require alternative means
for communication for regulatory information (Braille, large print,
audiotape, etc.) should contact the USDA Target Center at (202) 720-
2600 (voice) and (202) 690-0942 (TTY).
FOR FURTHER INFORMATION CONTACT: Ron Buckhalt, USDA, Office of
Procurement and Property Management, Room 361, Reporters Building, 300
7th St. SW., Washington, DC 20024; email: [email protected]; phone
(202) 205-4008. Information regarding the Federal biobased products
preferred procurement program (one part of the BioPreferred Program) is
available on the Internet at http://www.biopreferred.gov.
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. Authority
II. Background
III. Summary of Today's Proposed Rule
IV. Designation of Product Categories, Minimum Biobased Contents,
and Time Frame
A. Background
B. Product Categories Proposed for Designation
C. Minimum Biobased Contents
D. Compliance Date for Procurement Preference and Incorporation
Into Specifications
V. Where can agencies get more information on these USDA-designated
product categories?
VI. Regulatory Information
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Regulatory Flexibility Act (RFA)
C. Executive Order 12630: Governmental Actions and Interference
With Constitutionally Protected Property Rights
D. Executive Order 12988: Civil Justice Reform
E. Executive Order 13132: Federalism
F. Unfunded Mandates Reform Act of 1995
G. Executive Order 12372: Intergovernmental Review of Federal
Programs
H. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
I. Paperwork Reduction Act
J. E-Government Act
I. Authority
The designation of these product categories is proposed under the
authority of section 9002 of the Farm Security and Rural Investment Act
of 2002 (FSRIA), as amended by the Food, Conservation, and Energy Act
of 2008 (FCEA), 7 U.S.C. 8102 (referred to in this document as
``section 9002'').
II. Background
Section 9002 provides for the preferred procurement of biobased
products by Federal procuring agencies and is referred to hereafter in
this Federal Register notice as the ``Federal preferred procurement
program.'' The definition of ``procuring agency'' in section 9002
includes both Federal agencies and ``a person that is a party to a
contract with any Federal agency, with respect to work performed under
such a contract.'' Thus, Federal contractors, as well as Federal
agencies, are expressly subject to the procurement preference
provisions of section 9002.
The term ``product category'' is used in the designation process to
mean a generic grouping of specific products that perform a similar
function, such as the various brands of shaving products or deodorants.
Once USDA designates a product category, procuring agencies are
required generally to purchase biobased products within these
designated product categories where the purchase price of the
procurement product exceeds $10,000 or where the quantity of such
products or the functionally equivalent products purchased over the
preceding fiscal year equaled $10,000 or more. Procuring agencies must
procure biobased products within each product category unless they
determine that products within a product category are not reasonably
available within a reasonable period of time, fail to meet the
reasonable performance standards of the procuring agencies, or are
available only at an unreasonable price. As stated in 7 CFR Part 3201--
``Guidelines for Designating Biobased Products for Federal
Procurement'' (Guidelines), biobased products that are merely
incidental to Federal funding are excluded from the Federal preferred
procurement program; that is, the requirements to purchase biobased
products do not apply to such purchases if they are unrelated to or
incidental to the purpose of the Federal contract. In implementing the
Federal preferred procurement program for biobased products, procuring
agencies should follow their procurement rules and Office of Federal
Procurement Policy guidance on buying non-biobased products when
biobased products exist and should document exceptions taken for price,
performance, and availability.
USDA recognizes that the performance needs for a given application
are important criteria in making procurement decisions. USDA is not
requiring procuring agencies to limit their choices to biobased
products that fall under the product categories proposed for
designation in this proposed rule. Rather, the effect of the
designation of the product categories is to require procuring agencies
to determine their performance needs, determine whether there are
qualified biobased products that fall under the designated product
categories that meet
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the reasonable performance standards for those needs, and purchase such
qualified biobased products to the maximum extent practicable as
required by section 9002.
Section 9002(a)(3)(B) requires USDA to provide information to
procuring agencies on the availability, relative price, performance,
and environmental and public health benefits of such products and to
recommend, where appropriate, the minimum level of biobased content to
be contained in the procured products.
Subcategorization. Most of the product categories USDA is
considering for designation for Federal preferred procurement cover a
wide range of products. For some product categories, there are
subgroups of products that meet different requirements, uses and/or
different performance specifications. For example, within the product
category ``hand cleaners and sanitizers,'' products that are used in
medical offices may be required to meet performance specifications for
sanitizing, while other products that are intended for general purpose
hand washing may not need to meet these specifications. Where such
subgroups exist, USDA intends to create subcategories. Thus, for
example, for the product category ``hand cleaners and sanitizers,''
USDA determined in an earlier rulemaking that it was reasonable to
create a ``hand cleaner'' subcategory and a ``hand sanitizer''
subcategory. Sanitizing specifications are applicable to the latter
subcategory, but not the former. In sum, USDA looks at the products
within each product category to evaluate whether there are groups of
products within the category that have different characteristics or
that meet different performance specifications and, where USDA finds
these types of differences, it intends to create subcategories with the
minimum biobased content based on the tested products within the
subcategory.
For some product categories, however, USDA may not have sufficient
information at the time of proposal to create subcategories. For
example, USDA may know that there are different performance
specifications that leather, vinyl, and rubber care products are
required to meet, but it may have information on only one type of
leather, vinyl, and rubber care product. In such instances, USDA may
either designate the product category without creating subcategories
(i.e., defer the creation of subcategories) or designate one
subcategory and defer designation of other subcategories within the
product category until additional information is obtained. Once USDA
has received sufficient additional information to justify the
designation of a subcategory, the subcategory will be designated
through the proposed and final rulemaking process.
USDA is not proposing to subcategorize any of the product
categories being proposed for designation in today's action. However,
public comments and additional data are being requested for several of
the product categories and subcategories may be created in a future
rulemaking.
Minimum Biobased Contents. The minimum biobased contents being
proposed with today's rule are based on products for which USDA has
biobased content test data. Because the submission of product samples
for biobased content testing is on a strictly voluntary basis, USDA was
able to obtain samples only from those manufacturers who volunteered to
invest the resources required to submit the samples. USDA has, however,
begun to receive biobased content data associated with manufacturer's
applications for certification to use the USDA Certified Biobased
Product label. As discussed later in this preamble, these test results
will also be considered when proposing the minimum biobased content
levels for designated product categories.
In addition to considering the biobased content test data for each
product category, USDA also considers other factors including product
performance information. USDA evaluates this information to determine
whether some products that may have a lower biobased content also have
unique performance or applicability attributes that would justify
setting the minimum biobased content at a level that would include
these products. For example, a lubricant product that has a lower
biobased content than others within a product category but is
formulated to perform over a wider temperature range than the other
products may be more desirable to Federal agencies. Thus, it would be
beneficial to set the minimum biobased content for the product category
at a level that would include the product with superior performance
features.
USDA also considers the overall range of the tested biobased
contents within a product category, groupings of similar values, and
breaks (significant gaps between two groups of values) in the biobased
content test data array. For example, the biobased contents of 13
tested products within a product category being proposed for
designation today range from 12 to 100 percent, as follows: 12, 15, 53,
64, 74, 74, 86, 87, 87, 88, 90, 93, and 100. Because this is a very
wide range, and because there is a significant gap in the data between
the 12 percent biobased product and the 53 percent biobased product,
USDA reviewed the product literature to determine whether subcategories
could be created within this product category. USDA found that the
available product information did not justify subcategorization.
Further, USDA did not find any performance claims that would justify
setting the minimum biobased content based on the 12 percent biobased
content product. Thus, USDA is proposing to set the minimum biobased
content for this product category based on the product with a tested
biobased content of 53 percent. USDA believes that this evaluation
process allows it to establish minimum biobased contents based on a
broad set of factors to assist the Federal procurement community in its
decisions to purchase biobased products.
USDA makes every effort to obtain biobased content test data on
multiple products within each product category. For most designated
product categories, USDA has biobased content test data on more than
one product within the category. However, in some cases, USDA has been
able to obtain biobased content data for only a single product within a
designated product category. As USDA obtains additional data on the
biobased contents for products within these designated product
categories or their subcategories, USDA will evaluate whether the
minimum biobased content for a designated product category or
subcategory will be revised.
USDA anticipates that the minimum biobased content of a product
category that is based on a single product is more likely to change as
additional products within that category are identified and tested. In
today's proposed rule, none of the proposed minimum biobased contents
is based on a single tested product.
Where USDA receives additional biobased content test data for
products within these proposed product categories during the public
comment period, USDA will take that information into consideration when
establishing the minimum biobased content when the product categories
are designated in the final rulemaking.
Overlap with EPA's Comprehensive Procurement Guideline program for
recovered content products under the Resource Conservation and Recovery
Act (RCRA) Section 6002. Some of the products that are within biobased
product categories designated for Federal preferred procurement under
this program may also be within categories the Environmental Protection
Agency (EPA) has designated under the
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EPA's Comprehensive Procurement Guideline (CPG) for products containing
recovered materials. In situations where it believes there may be an
overlap, USDA is asking manufacturers of qualifying biobased products
to make additional product and performance information available to
Federal agencies conducting market research to assist them in
determining whether the biobased products in question are, or are not,
the same products for the same uses as the recovered content products.
Manufacturers are asked to provide information highlighting the
sustainable features of their biobased products and to indicate the
various suggested uses of their product and the performance standards
against which a particular product has been tested. In addition,
depending on the type of biobased product, manufacturers are being
asked to provide other types of information, such as whether the
product contains fossil energy-based components (including petroleum,
coal, and natural gas) and whether the product contains recovered
materials. Federal agencies also may review available information on a
product's biobased content and its profile against environmental and
health measures and life-cycle costs (the ASTM Standard D7075,
``Standard Practice for Evaluating and Reporting Environmental
Performance of Biobased Products,'' or the Building for Environmental
and Economic Sustainability (BEES) analysis for evaluating and
reporting on environmental performance of biobased products). Federal
agencies may then use this information to make purchasing decisions
based on the sustainability features of the products. Detailed
information on ASTM Standard D7075, and other ASTM standards, can be
found on ASTM's Web site at http://www.astm.org. Information on the
BEES analytical tool can be found on the Web site http://www.bfrl.nist.gov/oae/software/bees.html.
Section 6002 of RCRA requires a procuring agency procuring a
product designated by EPA generally to procure such a product composed
of the highest percentage of recovered materials content practicable.
However, a procuring agency may decide not to procure such a product
based on a determination that it fails to meet the reasonable
performance standards or specifications of the procuring agency. A
product with recovered materials content may not meet reasonable
performance standards or specifications, for example, if the use of the
product with recovered materials content would jeopardize the intended
end use of the product.
Where a biobased product is used for the same purposes and to meet
the same Federal agency performance requirements as an EPA-designated
recovered content product, the Federal agency must purchase the
recovered content product. For example, if a biobased hydraulic fluid
is to be used as a fluid in hydraulic systems and because ``lubricating
oils containing re-refined oil'' has already been designated by EPA for
that purpose, then the Federal agency must purchase the EPA-designated
recovered content product, ``lubricating oils containing re-refined
oil.'' If, on the other hand, that biobased hydraulic fluid is to be
used to address a Federal agency's certain environmental or health
performance requirements that the EPA-designated recovered content
product would not meet, then the biobased product should be given
preference, subject to reasonable price, availability, and performance
considerations.
USDA does not believe that any of the product categories being
proposed for Federal preferred procurement in today's rulemaking
overlap with an EPA-designated recovered content product. However,
interested readers may obtain more information on EPA's CPG products by
accessing EPA's Web site http://www.epa.gov/epaoswer/non-hw/procure/products.htm and then clicking on the appropriate product name.
Federal Government Purchase of Sustainable Products. The Federal
government's sustainable purchasing program includes the following
three statutory preference programs for designated products: the
BioPreferred Program, the EPA's Comprehensive Procurement Guideline for
products containing recovered materials, and the Environmentally
Preferable Purchasing program. The Office of the Federal Environmental
Executive (OFEE) and the Office of Management and Budget (OMB)
encourage agencies to implement these components comprehensively when
purchasing products and services.
Procuring agencies should note that not all biobased products are
``environmentally preferable.'' For example, unless cleaning products
contain no or reduced levels of metals and toxic and hazardous
constituents, they can be harmful to aquatic life, the environment,
and/or workers. Household cleaning products that are formulated to be
disinfectants are required, under the Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA), to be registered with EPA and must meet
specific labeling requirements warning of the potential risks
associated with misuse of such products. When purchasing
environmentally preferable cleaning products, many Federal agencies
specify that products must meet Green Seal standards for institutional
cleaning products or that the products have been reformulated in
accordance with recommendations from the EPA's Design for the
Environment (DfE) program. Both the Green Seal standards and the DfE
program identify chemicals of concern in cleaning products. These
include zinc and other metals, formaldehyde, ammonia, alkyl phenol
ethoxylates, ethylene glycol, and volatile organic compounds. In
addition, both require that cleaning products have neutral or less
caustic pH.
In contrast, some biobased products may be more environmentally
preferable than some products that meet Green Seal standards for
institutional cleaning products or that have been reformulated in
accordance with EPA's DfE program. To fully compare products, one must
look at the ``cradle-to-grave'' impacts of the manufacture, use, and
disposal of products. Biobased products that will be available for
Federal preferred procurement under this program have been assessed as
to their ``cradle-to-grave'' impacts.
One consideration of a product's impact on the environment is
whether (and to what degree) it introduces new, fossil carbon into the
atmosphere. Fossil carbon is derived from non-renewable sources
(typically fossil fuels such as coal and oil), whereas renewable
biomass carbon is derived from renewable sources (biomass). Qualifying
biobased products offer the user the opportunity to manage the carbon
cycle and reduce the introduction of new fossil carbon into the
atmosphere.
Manufacturers of qualifying biobased products designated under the
Federal preferred procurement program will be able to provide, at the
request of Federal agencies, factual information on environmental and
human health effects of their products, including the results of the
ASTM D7075, or the comparable BEES analysis, which examines 12
different environmental parameters, including human health. Therefore,
USDA encourages Federal procurement agencies to consider that USDA has
already examined all available information on the environmental and
human health effects of biopreferred products when making their
purchasing decisions.
Other Federal Preferred Procurement Programs. Federal procurement
officials should also note that biobased products may be available for
purchase by
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Federal agencies through the AbilityOne Program (formerly known as the
Javits-Wagner-O'Day (JWOD) program). Under this program, members of
organizations including the National Industries for the Blind (NIB) and
NISH offer products and services for preferred procurement by Federal
agencies. A search of the AbilityOne Program's online catalog
(www.abilityone.gov) indicated that five of the product categories
being proposed today (deodorants; leather, vinyl, and rubber care
products; lotions and moisturizers; specialty precision cleaners and
solvents; and sun care products) are available through the AbilityOne
Program. While there is no specific product within these product
categories identified in the AbilityOne online catalog as being a
biobased product, it is possible that such biobased products are
available or will be available in the future. Also, because additional
categories of products are frequently added to the AbilityOne Program,
it is possible that biobased products within other product categories
being proposed for designation today may be available through the
AbilityOne Program in the future. Procurement of biobased products
through the AbilityOne Program would further the objectives of both the
AbilityOne Program and the Federal preferred procurement program.
Outreach. To augment its own research, USDA consults with industry
and Federal stakeholders to the Federal preferred procurement program
during the development of the rulemaking packages for the designation
of product categories. USDA consults with stakeholders to gather
information used in determining the order of product category
designation and in identifying: Manufacturers producing and marketing
products that fall within a product category proposed for designation;
performance standards used by Federal agencies evaluating products to
be procured; and warranty information used by manufacturers of end user
equipment and other products with regard to biobased products.
Future Designations. In making future designations, USDA will
continue to conduct market searches to identify manufacturers of
biobased products within product categories. USDA will then contact the
identified manufacturers to solicit samples of their products for
voluntary submission for biobased content testing. Based on these
results, USDA will then propose new product categories for designation
for Federal preferred procurement.
USDA has developed a preliminary list of product categories for
future designation and has posted this preliminary list on the
BioPreferred Web site. While this list presents an initial
prioritization of product categories for designation, USDA cannot
identify with certainty which product categories will be presented in
each of the future rulemakings. In response to comments from other
Federal agencies, USDA intends to give increased priority to those
product categories that contain the highest biobased content. In
addition, as the program matures, manufacturers of biobased products
within some industry segments have become more responsive to USDA's
requests for technical information than those in other segments. Thus,
product categories with high biobased content and for which sufficient
technical information can be obtained quickly may be added or moved up
on the prioritization list. USDA intends to update the list of product
categories for future designation on the Biopreferred Web site every
six months, or more often if significant changes are made to the list.
III. Summary of Today's Proposed Rule
USDA is proposing to designate the following product categories for
Federal preferred procurement: Agricultural spray adjuvants; animal
cleaning products; deodorants; dethatcher products; fuel conditioners;
leather, vinyl, and rubber care products; lotions and moisturizers;
shaving products; specialty precision cleaners and solvents; sun care
products; wastewater systems coatings; and water clarifying agents.
USDA is also proposing a minimum biobased content for each of these
product categories. Lastly, USDA is proposing a date by which Federal
agencies must incorporate these designated product categories into
their procurement specifications (see Section IV.D).
In today's proposed rule, USDA is providing information on its
findings as to the availability, economic and technical feasibility,
environmental and public health benefits, and life-cycle costs for each
of the designated product categories. Information on the availability,
relative price, performance, and environmental and public health
benefits of individual products within each of these product categories
is not presented in this notice. Further, USDA has reached an
understanding with manufacturers not to publish their names in
conjunction with specific product data published in the Federal
Register when designating product categories. This understanding was
reached to encourage manufacturers to submit products for testing to
support the designation of a product category. Once a product category
has been designated, USDA will encourage the manufacturers of products
within the product category to voluntarily make their names and other
contact information available for the BioPreferred Web site.
Warranties. Some of the product categories being proposed for
designation today may affect original equipment manufacturers' (OEMs)
warranties for equipment in which the product categories are used. For
example, the manufacturer of a piece of equipment that requires
lubrication typically includes a list of recommended lubricants in the
owner/operators manual that accompanies the equipment when purchased.
If the purchaser of the equipment uses a lubricant (including a
biobased lubricant) that is not among the lubricants recommended by the
equipment manufacturer, the manufacturer may cite that as a reason not
to honor the warranty on the equipment. At this time, USDA does not
have information available as to the extent that OEMs have included, or
will include, biobased products among their recommended lubricants (or
other similar operating components). This does not necessarily mean
that use of biobased products will void warranties, only that USDA does
not currently have such information. USDA is requesting comments and
information on this topic, but cannot be held responsible if damage
were to occur. USDA encourages manufacturers of biobased products to
test their products against all relevant standards, including those
that affect warranties, and to work with OEMs to ensure that biobased
products are accepted and recommended for use. Whenever manufacturers
of biobased products find that existing performance standards for
warranties are not relevant or appropriate for biobased products, USDA
is willing to assist them in working with the appropriate OEMs to
develop tests that are relevant and appropriate for the end uses in
which biobased products are intended. In addition to outreach to
biobased product manufacturers and Federal Agencies, USDA will, as time
and resources allow, work with OEMs on addressing any effect the use of
biobased products may have on their warranties. If, in spite of these
efforts, there is insufficient information regarding the use of a
biobased product and its effect on warranties, the procurement agent
would not be required to buy such a product. As information is
available on warranties,
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USDA will make such information available on the BioPreferred Web site.
Additional Information. USDA is working with manufacturers and
vendors to make all relevant product and manufacturer contact
information available on the BioPreferred Web site before a procuring
agency asks for it, in order to make the Federal preferred procurement
program more efficient. Steps USDA has implemented, or will implement,
include: Making direct contact with submitting companies through email
and phone conversations to encourage completion of product listing;
coordinating outreach efforts with intermediate material producers to
encourage participation of their customer base; conducting targeted
outreach with industry and commodity groups to educate stakeholders on
the importance of providing complete product information; participating
in industry conferences and meetings to educate companies on program
benefits and requirements; and communicating the potential for expanded
markets beyond the Federal government, to include State and local
governments, as well as the general public markets. Section V provides
instructions to agencies on how to obtain this information on products
within these product categories through the following Web site: http://www.biopreferred.gov.
Comments. USDA invites comment on the proposed designation of these
product categories, including the definition, proposed minimum biobased
content, and any of the relevant analyses performed during the
selection of these product categories. In addition, USDA invites
comments and information in the following areas:
1. We have attempted to identify relevant and appropriate
performance standards and other relevant measures of performance for
each of the proposed product categories. If you know of other such
standards or relevant measures of performance for any of the proposed
product categories, USDA requests that you submit information
identifying such standards and measures, including their name (and
other identifying information as necessary), identifying who is using
the standard/measure, and describing the circumstances under which the
product is being used.
2. Many biobased products within the product categories being
proposed for designation will have positive environmental and human
health attributes. USDA is seeking comments on such attributes in order
to provide additional information on the BioPreferred Web site. This
information will then be available to Federal procuring agencies and
will assist them in making informed sustainable procurement decisions.
When possible, please provide appropriate documentation to support the
environmental and human health attributes you describe.
3. Several product categories (e.g., agricultural spray adjuvants,
animal cleaning products, deodorants, leather, vinyl, and rubber care
products, sun care products, and wastewater systems coatings) have wide
ranges of tested biobased contents. For the reasons discussed later in
this preamble, USDA is proposing a minimum biobased content for most of
these product categories that would allow many of the tested products
to be eligible for Federal preferred procurement. USDA welcomes
comments on the appropriateness of the proposed minimum biobased
contents for these product categories and whether there are potential
subcategories within the product categories that should be considered.
4. As discussed above, the effect that the use of biobased products
may have on original equipment manufacturers' warranties is uncertain.
USDA requests comments and supporting information on any aspect of this
issue.
5. Today's proposed rule is expected to have both positive and
negative impacts on individual businesses, including small businesses.
USDA anticipates that the biobased Federal preferred procurement
program will provide additional opportunities for businesses and
manufacturers to begin supplying products under the proposed designated
biobased product categories to Federal agencies and their contractors.
However, other businesses and manufacturers that supply only non-
qualifying products and do not offer biobased alternatives may
experience a decrease in demand from Federal agencies and their
contractors. Because USDA has been unable to determine the number of
businesses, including small businesses, that may be adversely affected
by today's proposed rule, USDA requests comment on how many small
entities may be affected by this rule and on the nature and extent of
that effect.
All comments should be submitted as directed in the ADDRESSES
section above.
To assist you in developing your comments, the background
information used in proposing these product categories for designation
has been posted on the BioPreferred Web site. The background
information can be located by clicking on the ``Federal Procurement
Preference'' link on the right side of the BioPreferred Web site's home
page (http://www.biopreferred.gov) and then on the ``Rules and
Regulations'' link. At the next screen, click on the Supporting
Documentation link under Round 9 Designation under the Proposed
Regulations section.
IV. Designation of Product Categories, Minimum Biobased Contents, and
Time Frame
A. Background
In order to designate product categories for Federal preferred
procurement, section 9002 requires USDA to consider: (1) The
availability of biobased products within the product categories and (2)
the economic and technological feasibility of using those products,
including the life-cycle costs of the products.
In considering a product's availability, USDA uses several sources
of information. USDA performs Internet searches, contacts trade
associations (such as the Bio organization) and commodity groups,
searches the Thomas Register (a database, used as a resource for
finding companies and products manufactured in North America,
containing over 173,000 entries), and contacts manufacturers and
vendors to identify those manufacturers and vendors with biobased
products within product categories being considered for designation.
USDA uses the results of these same searches to determine if a product
category is generally available.
In considering a product category's economic and technological
feasibility, USDA examines evidence pointing to the general commercial
use of a product and its life-cycle cost and performance
characteristics. This information is obtained from the sources used to
assess a product's availability. Commercial use, in turn, is evidenced
by any manufacturer and vendor information on the availability,
relative prices, and performance of their products as well as by
evidence of a product being purchased by a procuring agency or other
entity, where available. In sum, USDA considers a product category
economically and technologically feasible for purposes of designation
if products within that product category are being offered and used in
the marketplace.
In considering the life-cycle costs of product categories proposed
for designation, USDA has obtained the necessary input information (on
a voluntary basis) from manufacturers of biobased products and has used
the BEES analytical tool to analyze individual products within each
[[Page 33275]]
proposed product category. The BEES analytical tool measures the
environmental performance and the economic performance of a product.
The environmental performance scores, impact values, and economic
performance results for products within the Round 9 designated product
categories analyzed using the BEES analytical tool can be found on the
BioPreferred Web site (http://www.biopreferred.gov) under the
Supporting Documentation link mentioned above.
In addition to the BEES analytical tool, manufacturers wishing to
make similar life-cycle information available may choose to use the
ASTM Standard D7075 analysis. The ASTM Standard D7075 product analysis
includes information on environmental performance, human health
impacts, and economic performance. USDA is working with manufacturers
and vendors to make this information available on the BioPreferred Web
site in order to make the Federal preferred procurement program more
efficient.
As discussed earlier, USDA has also implemented, or will implement,
several other steps intended to educate the manufacturers and other
stakeholders on the benefits of this program and the need to make this
information, including manufacturer contact information, available on
the BioPreferred Web site in order to then make it available to
procurement officials. Additional information on specific products
within the product categories proposed for designation may also be
obtained directly from the manufacturers of the products. USDA has also
provided a link on the BioPreferred Web site to a document that offers
useful information to manufacturers and vendors who wish to position
their businesses as BioPreferred vendors to the Federal Government.
This document can be accessed by clicking on the ``Sell Biobased
Products'' tab on the right side of the home page of the BioPreferred
Web site, then on the ``Resources for Business'' tab under ``Related
Topics'' on the right side of the next page, and then on the document
titled ``Selling Biobased Products to the Federal Government'' in the
middle of the page.
USDA recognizes that information related to the functional
performance of biobased products is a primary factor in making the
decision to purchase these products. USDA is gathering information on
industry standard test methods and performance standards that
manufacturers are using to evaluate the functional performance of their
products. (Test methods are procedures used to provide information on a
certain attribute of a product. For example, a test method might
determine how many bacteria are killed. Performance standards identify
the level at which a product must perform in order for it to be
``acceptable'' to the entity that set the performance standard. For
example, a performance standard might require that a certain percentage
(e.g., 95 percent) of the bacteria must be killed through the use of
the product.) The primary sources of information on these test methods
and performance standards are manufacturers of biobased products within
these product categories. Additional test methods and performance
standards are also identified during meetings of the Interagency
council and during the review process for each proposed rule. We have
listed, under the detailed discussion of each product category proposed
for designation (presented in Section IV.B), the functional performance
test methods, performance standards, product certifications, and other
measures of performance associated with the functional aspects of
products identified during the development of this Federal Register
notice for these product categories.
While this process identifies many of the relevant test methods and
standards, USDA recognizes that those identified herein do not
represent all of the methods and standards that may be applicable for a
product category or for any individual product within the category. As
noted earlier in this preamble, USDA is requesting identification of
other relevant performance standards and measures of performance. As
the program becomes fully implemented, these and other additional
relevant performance standards will be available on the BioPreferred
Web site.
In gathering information relevant to the analyses discussed above
for this proposed rule, USDA has made extensive efforts to contact and
request information and product samples within the product categories
proposed for designation. For product information, USDA has attempted
to contact representatives of the manufacturers of biobased products
identified by the Federal preferred procurement program. For product
samples on which to conduct biobased content tests and BEES analysis,
USDA has attempted to obtain samples and BEES input information for at
least five different suppliers of products within each product category
in today's proposed rule. However, because the submission of
information and samples is on a strictly voluntary basis, USDA was able
to obtain information and samples only from those manufacturers who
volunteered to invest the resources required to gather and submit the
information and samples. The data presented are all the data that were
submitted in response to USDA requests for information from
manufacturers of the products within the product categories proposed
for designation. While USDA would prefer to have complete data on the
full range of products within each product category, the data that were
submitted support designation of the product categories in today's
proposed rule.
To propose a product category for designation, USDA must have
sufficient information on a sufficient number of products within the
category to be able to assess its availability and its economic and
technological feasibility, including its life-cycle costs. For some
product categories, there may be numerous products available. For
others, there may be very few products currently available. Given the
infancy of the market for some product categories, it is expected that
categories with only a single product will be identified. Further,
given that the intent of section 9002 is largely to stimulate the
production of new biobased products and to energize emerging markets
for those products, USDA has determined it is appropriate to designate
a product category or subcategory for Federal preferred procurement
even when there is only a single product with a single supplier, though
this will generally occur once other products with high biobased
content and two or more producers are first designated. However, USDA
has also determined that in such situations it is appropriate to defer
the effective Federal preferred procurement date until such time that
more than one supplier is identified in order to provide choice to
procuring agencies. Similarly, the documented availability, benefits,
and life-cycle costs of even a very small percentage of all products
that may exist within a product category are also considered sufficient
to support designation.
B. Product Categories Proposed for Designation
USDA uses a model (as summarized below) to identify and prioritize
product categories for designation. Through this model, USDA has
identified over 100 product categories for potential designation under
the Federal preferred procurement program. A list of these product
categories and information on the model can be accessed on the
BioPreferred Web site at http://www.biopreferred.gov.
[[Page 33276]]
In general, product categories are developed and prioritized for
designation by evaluating them against program criteria established by
USDA and by gathering information from other government agencies,
private industry groups, and manufacturers. These evaluations begin by
looking at the cost, performance, and availability of products within
each product category. USDA then considers the following points:
Are there manufacturers interested in providing the
necessary test information on products within a particular product
category?
Are there a number of manufacturers producing biobased
products in this product category?
Are there products available in this product category?
What level of difficulty is expected when designating this
product category?
Is there Federal demand for the product?
Are Federal procurement personnel looking for biobased
products?
Will a product category create a high demand for biobased
feed stock?
Does manufacturing of products within this product
category increase potential for rural development?
After completing this evaluation, USDA prioritizes the list of
product categories for designation. USDA then gathers information on
products within the highest priority product categories and, as
sufficient information becomes available for a group of product
categories, a new rulemaking package is developed to designate the
product categories within that group. USDA points out that the list of
product categories may change, with some being added or dropped, and
that the order in which they are proposed for designation is likely to
change because the information necessary to designate a product
category may take more time to obtain than one lower on the list.
In today's proposed rule, USDA is proposing to designate the
following product categories for the Federal preferred procurement
program: Agricultural spray adjuvants; animal cleaning products;
deodorants; dethatcher products; fuel conditioners; leather, vinyl, and
rubber care products; lotions and moisturizers; shaving products;
specialty precision cleaners and solvents; sun care products;
wastewater systems coatings; and water clarifying agents. USDA has
determined that each of these product categories meets the necessary
statutory requirements--namely, that they are being produced with
biobased products and that their procurement by procuring agencies will
carry out the following objectives of section 9002:
To increase demand for biobased products, which would in
turn increase demand for agricultural commodities that can serve as
feedstocks for the production of biobased products;
To spur development of the industrial base through value-
added agricultural processing and manufacturing in rural communities;
and
To enhance the Nation's energy security by substituting
biobased products for products derived from imported oil and natural
gas.
Further, USDA has sufficient information on these product
categories to determine their availability and to conduct the requisite
analyses to determine their biobased content and their economic and
technological feasibility, including life-cycle costs.
Exemptions. Products exempt from the biobased procurement
preference are military equipment, defined as any product or system
designed or procured for combat or combat-related missions, and
spacecraft systems and launch support equipment. However, agencies may
purchase biobased products wherever performance, availability and
reasonable price indicates that such purchases are justified.
Although each product category in today's proposed rule would be
exempt from the procurement preference requirement when used in
spacecraft systems or launch support application or in military
equipment used in combat and combat-related applications, this
exemption does not extend to contractors performing work other than
direct maintenance and support of the spacecraft or launch support
equipment or combat or combat-related missions. For example, if a
contractor is applying a dethatcher product to the lawn around an
office building on a military base, the dethatcher the contractor
purchases and uses on the lawn should be a qualifying biobased
dethatcher. The exemption does apply, however, if the product being
purchased by the contractor is for use in combat or combat-related
missions or for use in space or launch applications. After reviewing
the regulatory requirement and the relevant contract, where contractors
have any questions on the exemption, they should contact the cognizant
contracting officer.
USDA points out that it is not the intent of these exemptions to
imply that biobased products are inferior to non-biobased products. If
manufacturers of biobased products can meet the concerns of these two
agencies, USDA is willing to reconsider such exemptions on an case-by-
case basis. Any changes to the current exemptions would be announced in
a proposed rule amendment with an opportunity for public comment.
Each of the proposed designated product categories are discussed in
the following sections.
1. Agricultural Spray Adjuvants (Minimum Biobased Content 50 Percent)
\1\
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\1\ Additional information on the determination of minimum
biobased contents is presented in Section IV.C of this preamble.
---------------------------------------------------------------------------
Agricultural spray adjuvants are products mixed in the spray tank
with the herbicide, pesticide, or fertilizer formulas that will improve
the efficiency and the effectiveness of the chemicals including
sticking agents, wetting agents, etc.
USDA identified 30 manufacturers and suppliers of 62 agricultural
spray adjuvants. These 30 manufacturers and suppliers do not
necessarily include all manufacturers of agricultural spray adjuvants,
merely those identified during USDA information gathering activities.
Relevant product information supplied by these manufacturers and
suppliers indicates that these products are being used commercially. In
addition, manufacturers and stakeholders identified three test methods
(as shown below) used in evaluating products within this product
category. While there may be additional test methods, as well as
performance standards, product certifications, and other measures of
performance, applicable to products within this product category, the
three test methods identified by the manufacturers are:
Test Methods
29 CFR 1910.1200; Occupational Safety Health Standards Section
1200--Hazard Communication
VOCs; California Air Resources Board Method 310
ASTM D790; Standard Test Methods for Flexural Properties of
Unreinforced and Reinforced Plastics and Electrical Insulating
Materials
USDA contacted procurement officials with various policy-making and
procuring agencies in an effort to gather information on the purchases
of agricultural spray adjuvants, as well as information on products
within the other 11 product categories proposed for designation today.
These agencies included GSA, several offices within the DLA, OFEE, USDA
Departmental Administration, the National Park Service, EPA, a
Department of Energy laboratory, and OMB. Communications
[[Page 33277]]
with these Federal officials led to the conclusion that obtaining
current usage statistics and specific potential markets within the
Federal government for biobased products within the 12 proposed
designated product categories is not possible at this time.
Most of the contacted officials reported that procurement data are
appropriately reported in higher level groupings of Federal Supply
Codes \2\ for materials and supplies, which is higher level coding than
the proposed designated product categories. Using terms that best match
the product categories in today's proposed rule, USDA queried the GSA
database for Federal purchases of products within today's proposed
product categories. The results indicate purchases of products within
product categories in today's proposed rule. The results of this
inquiry can be found in the background information for Round 9, which
is posted on the BioPreferred Web site. Also, the purchasing of such
materials as part of contracted services and with individual purchase
cards used to purchase products locally leads to less accurate data on
purchases of specific products.
---------------------------------------------------------------------------
\2\ The Federal Supply Code (FSC) is a four-digit code used by
government buying offices to classify and identify, in broad terms,
the products and supplies that the government buys and uses. The FSC
is the first four digits in the much more detailed 13-digit National
Stock Number (NSN) that is assigned to all government purchases for
purposes of identification and inventory control.
---------------------------------------------------------------------------
USDA also investigated the Web site FEDBIZOPPS.gov, a site which
lists Federal contract purchase opportunities and awards greater than
$25,000. The information provided on this Web site, however, is for
broad categories of services and products rather than the specific
types of products that are included in today's proposed rule.
Therefore, USDA has been unable to obtain data on the amount of
agricultural spray adjuvants purchased by procuring agencies. However,
Federal agencies routinely perform, or contract for, agricultural,
lawn, and landscaping services involving the use of such products.
Thus, they have a need for agricultural spray adjuvants and for
services that use these products. Designation of agricultural spray
adjuvants will promote the use of biobased products, furthering the
objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics, have been
collected on 21 agricultural spray adjuvants. Analyses of the
environmental and human health benefits and the life-cycle costs of
agricultural spray adjuvants were performed for one of the products
using the BEES analytical tool. The results of those analyses are
presented in the background information for Round 9, which is posted on
the BioPreferred Web site.
2. Animal Cleaning Products (Minimum Biobased Content 57 Percent)
Animal cleaning products are products designed to clean, condition,
or remove substances from animal hair or other parts of an animal.
USDA identified 85 manufacturers and suppliers of 329 animal
cleaning products. The 85 manufacturers and suppliers do not
necessarily include all manufacturers and suppliers of biobased animal
cleaning products, merely those identified during USDA information
gathering activities. Information supplied by these manufacturers and
suppliers indicates that these products are being used commercially. In
addition, manufacturers and stakeholders identified one test method (as
shown below) used in evaluating products within this product category.
While there may be additional test methods, as well as performance
standards, product certifications, and other measures of performance,
applicable to products within this product category, the one test
method identified by the manufacturers is:
Test Method
29 CFR 1910.1200; EPA FIFRA 25b Minimum Risk Pesticide Exempt
USDA attempted to gather data on the potential market for animal
cleaning products within the Federal government as discussed in the
section on agricultural spray adjuvants. These attempts were largely
unsuccessful. However, many Federal agencies routinely perform, or
procure contract services to perform, the types of cleaning activities
that use these products. Thus, they have a need for animal cleaning
products and for services that require the use of animal cleaning
products. Designation of animal cleaning products will promote the use
of biobased products, furthering the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics, have been
collected on 15 animal cleaning products. Analyses of the environmental
and human health benefits and the life-cycle costs of animal cleaning
products were performed for one product using the BEES analytical tool.
The results of those analyses are presented in the background
information for Round 9, which is posted on the BioPreferred Web site.
3. Deodorants (Minimum Biobased Content 73 Percent)
Deodorants are products for inhibiting or masking perspiration and
other body odors and that are often combined with an antiperspirant.
USDA identified 37 manufacturers and suppliers of 82 different
deodorants. These 37 manufacturers and suppliers do not necessarily
include all manufacturers and suppliers of biobased deodorants, merely
those identified during USDA information gathering activities.
Information supplied by these manufacturers and suppliers indicates
that these products are being used commercially. However, manufacturers
and stakeholders contacted by USDA did not identify any applicable
performance standards, test methods, or other industry measures of
performance against which these products have been tested. USDA points
out that the lack of identified performance standards is not relevant
to the designation of a product category for Federal preferred
procurement because it is not one of the criteria section 9002 requires
USDA to consider in order to designate a product category for Federal
preferred procurement. If and when performance standards, test methods,
and other relevant measures of performance are identified for this
product category, USDA will provide such information on the
BioPreferred Web site.
USDA attempted to gather data on the potential market for
deodorants within the Federal government as discussed in the section on
agricultural spray adjuvants. These attempts were largely unsuccessful.
However, several Federal agencies operate housing and medical care
facilities where deodorants are used or sold. In addition, Federal
agencies may contract for services involving the use of such products.
Thus, they have a need for deodorants and for services that require the
use of deodorants. Designation of deodorants will promote the use of
biobased products, furthering the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on 10 deodorant products. Analyses of the environmental and
human health benefits and the life-cycle costs of deodorants were
performed for one of the products using the BEES analytical tool. The
results of those analyses are presented in the background information
for Round 9, which is posted on the BioPreferred Web site.
[[Page 33278]]
4. Dethatchers (Minimum Biobased Content 87 Percent)
Dethatchers are products used to remove non-decomposed plant
material accumulated in grassy areas.
USDA identified 13 manufacturers and suppliers of 14 dethatchers.
These 13 manufacturers and suppliers do not necessarily include all
manufacturers and suppliers of biobased dethatchers, merely those
identified during USDA information gathering activities. Information
supplied by these manufacturers and suppliers indicates that these
products are being used commercially. However, manufacturers and
stakeholders contacted by USDA did not identify any applicable
performance standards, test methods, or other industry measures of
performance against which these products have been tested. USDA points
out that the lack of identified performance standards is not relevant
to the designation of a product category for Federal preferred
procurement because it is not one of the criteria section 9002 requires
USDA to consider in order to designate a product category for Federal
preferred procurement. If and when performance standards, test methods,
and other relevant measures of performance are identified for this
product category, USDA will provide such information on the
BioPreferred Web site.
USDA attempted to gather data on the potential market for
dethatchers within the Federal government as discussed in the section
on agricultural spray adjuvants. These attempts were largely
unsuccessful. However, many Federal agencies routinely maintain, or
procure contract services to maintain, office and residential facility
landscapes where dethatchers are used. Thus, they have a need for these
products. Designation of dethatchers will promote the use of biobased
products, furthering the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on six dethatchers. Analyses of the environmental and human
health benefits and the life-cycle costs of dethatchers were performed
for three of the products using the BEES analytical tool. The results
of those analyses are presented in the background information for Round
9, which is posted on the BioPreferred Web site.
5. Fuel Conditioners (Minimum Biobased Content 64 Percent)
Fuel conditioners are products formulated to improve the
performance and efficiency of engines by providing benefits such as
removing accumulated deposits, increasing lubricity, removing moisture,
increasing the cetane number, and/or preventing microbial growths
within the fuel system.
USDA identified 13 manufacturers and suppliers of 25 fuel
conditioner products. These 13 manufacturers and suppliers do not
necessarily include all manufacturers and suppliers of biobased fuel
conditioner products, merely those identified during USDA information
gathering activities. Information supplied by these manufacturers and
suppliers indicates that these products are being used commercially. In
addition, manufacturers and stakeholders identified six test methods
(as shown below) used in evaluating products within this product
category. While there may be additional test methods, as well as
performance standards, product certifications, and other measures of
performance, applicable to products within this product category, the
six test methods identified by the manufacturers are:
Test Methods
Environmental Protection Agency 40 CFR 79.23 Fuel Additive
ASTM International D1094 Standard Test Method for Water
Reaction of Aviation Fuels
ASTM International D2274 Standard Test Method for Oxidation
Stability of Distillate Fuel Oil (Accelerated Method)
ASTM International D6078 Standard Test Method for Evaluating
Lubricity of Diesel Fuels by the Scuffing Load Ball-on-Cylinder
Lubricity Evaluator (SLBOCLE)
ASTM International D665 Standard Test Method for Rust-
Preventing Characteristics of Inhibited Mineral Oil in the Presence of
Water
Cummins Engine Company L10 Injector Depositing Test
Detergency. A standard used to indicate of the ability of a product to
provide injector cleanliness and can be used to discriminate fuel/fuel
additive quality
USDA attempted to gather data on the potential market for fuel
conditioner products within the Federal government as discussed in the
section on agricultural spray adjuvants. These attempts were largely
unsuccessful. However, many Federal agencies routinely operate, or
procure contract services to operate, motor vehicles and other
equipment where fuel conditioners are used. Thus, they have a need for
these products. Designation of fuel conditioner products will promote
the use of biobased products, furthering the objectives of this
program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on 23 fuel conditioner products. Analyses of the
environmental and human health benefits and the life-cycle costs of
fuel conditioner products were performed for three of the products
using the BEES analytical tool. The results of those analyses are
presented in the background information for Round 9, which is posted on
the BioPreferred Web site.
6. Leather, Vinyl, and Rubber Care Products (Minimum Biobased Content
55 Percent)
Leather, vinyl, and rubber care products are products that help
clean, nourish, protect, and restore leather, vinyl, and rubber
surfaces including cleaners, conditioners, protectants, polishes,
waxes, etc.
USDA identified 36 manufacturers and suppliers of 79 leather,
vinyl, and rubber care products. These 36 manufacturers and suppliers
do not necessarily include all manufacturers and suppliers of leather,
vinyl, and rubber care products, merely those identified during USDA
information gathering activities. Information supplied by these
manufacturers and suppliers indicates that these products are being
used commercially. In addition, manufacturers and stakeholders
identified two test methods (as shown below) used in evaluating
products within this product category. While other test methods and
measures of performance, as well as performance standards, applicable
to products within this product category may exist, the two test
methods identified by manufacturers are:
Test Methods
ASTM D4488; Standard Guide for Testing Cleaning Performance of
Products Intended for Use on Resilient Flooring and Washable Walls
GS-37; Green Seal Environmental Standard for General-Purpose,
Bathroom, Glass, and Carpet Cleaners Used for Industrial and
Institutional Purposes
USDA attempted to gather data on the potential market for leather,
vinyl, and rubber care products within the Federal government as
discussed in the section on agricultural spray adjuvants. These
attempts were largely unsuccessful. However, many Federal agencies
routinely procure leather, vinyl, and rubber care products, or contract
with services that procure these products.
[[Page 33279]]
Thus, they have a need for leather, vinyl, and rubber care products and
for services that require the use of leather, vinyl, and rubber care
products. Designation of leather, vinyl, and rubber care products will
promote the use of biobased products, furthering the objectives of this
program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on seven leather, vinyl, and rubber care products. Analyses
of the environmental and human health benefits and the life-cycle costs
of biobased leather, vinyl, and rubber care products were performed for
two products using the BEES analytical tool. The results of those
analyses are presented in the background information for Round 9, which
is posted on the BioPreferred Web site.
7. Lotions and Moisturizers (Minimum Biobased Content 59 Percent)
Lotions and moisturizers are creams and oils used to soften and
treat damaged skin.
USDA identified 230 manufacturers and suppliers of 888 lotions and
moisturizers. These 230 manufacturers and suppliers do not necessarily
include all manufacturers and suppliers of lotions and moisturizers,
merely those identified during USDA information gathering activities.
Information supplied by these manufacturers and suppliers indicates
that these products are being used commercially. In addition,
manufacturers and stakeholders identified two test methods (as shown
below) used in evaluating products within this product category. While
other test methods and measures of performance, as well as performance
standards, applicable to products within this product category may
exist, the two test methods identified by manufacturers are:
Test Methods
ASTM International E1207 Standard Practice for The Sensory
Evaluation of Auxiliary Deodorancy
ASTM International E1909 Standard Guide for Time-Intensity
Evaluation of Sensory Attributes
USDA attempted to gather data on the potential market for lotions
and moisturizers within the Federal government as discussed in the
section on agricultural spray adjuvants. These attempts were largely
unsuccessful. However, Federal agencies procure lotions and
moisturizers for use in medical care or similar types of facilities, or
they procure the services that use these products. Thus, they have a
need for lotions and moisturizers and for services that require the use
of lotions and moisturizers. Designation of lotions and moisturizers
will promote the use of biobased products, furthering the objectives of
this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on 133 lotions and moisturizers. Analyses of the
environmental and human health benefits and the life-cycle costs of
biobased lotions and moisturizers were performed for one product using
the BEES analytical tool. The results of those analyses are presented
in the background information for Round 9, which is posted on the
BioPreferred Web site.
8. Shaving Products (Minimum Biobased Content 92 Percent)
Shaving products are products designed for every step of the
shaving process, including shaving creams, gels, soaps, lotions, and
aftershave balms.
USDA identified 71 manufacturers of 640 biobased shaving products.
The 71 manufacturers do not necessarily include all manufacturers of
biobased shaving products, merely those identified during USDA
information gathering activities. Information supplied by these
manufacturers indicates that these products are being used
commercially. However, manufacturers and stakeholders contacted by USDA
did not identify any applicable performance standards, test methods, or
other industry measures of performance against which these products
have been tested. USDA points out that the lack of identified
performance standards is not relevant to the designation of a product
category for Federal preferred procurement because it is not one of the
criteria section 9002 requires USDA to consider in order to designate a
product category for Federal preferred procurement. If and when
performance standards, test methods, and other relevant measures of
performance are identified for this product category, USDA will provide
such information on the BioPreferred Web site.
USDA attempted to gather data on the potential market for shaving
products within the Federal government as discussed in the section on
agricultural spray adjuvants. These attempts were largely unsuccessful.
However, Federal medical care facilities use, and procure services that
use, shaving products. Thus, they have a need for shaving products and
for services that require the use of shaving products. Designation of
shaving products will promote the use of biobased products, furthering
the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on 10 shaving products. Analyses of the environmental and
human health benefits and the life-cycle costs of biobased shaving
products were performed for one product using the BEES analytical tool.
The results of those analyses are presented in the background
information for Round 9, which is posted on the BioPreferred Web site.
9. Specialty Precision Cleaners and Solvents (Minimum Biobased Content
56 Percent)
Specialty precision cleaners and solvents are cleaners and solvents
used in specialty applications. These materials may be used in either
neat solution, diluted with water, or in hand wiping applications.
USDA identified 22 manufacturers and suppliers of 30 specialty
precision cleaners and solvents. These 22 manufacturers and suppliers
do not necessarily include all manufacturers and suppliers of specialty
precision cleaners and solvents, merely those identified during USDA
information gathering activities. Information supplied by these
manufacturers and suppliers indicates that these products are being
used commercially. In addition, manufacturers and stakeholders
identified two test methods (as shown below) used in evaluating
products within this product category. While other test methods and
measures of performance, as well as performance standards, applicable
to products within this product category may exist, the two test
methods identified by manufacturers are:
Test Methods
ASTM F1110 Standard Test Method for Sandwich Corrosion Test
ASTM F519 Standard Test Method for Mechanical Hydrogen
Embrittlement Evaluation of Plating Processes and Service Environments
USDA attempted to gather data on the potential market for specialty
precision cleaners and solvents within the Federal government as
discussed in the section on agricultural spray adjuvants. These
attempts were largely unsuccessful. However, many Federal agencies
purchase and maintain equipment that requires specialty precision
cleaners and solvents, or contract with services that procure these
products. Thus, they have a need for specialty precision cleaners and
solvents and for services
[[Page 33280]]
that require the use of specialty precision cleaners and solvents.
Designation of specialty precision cleaners and solvents will promote
the use of biobased products, furthering the objectives of this
program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on 11 specialty precision cleaners and solvents. Analyses of
the environmental and human health benefits and the life-cycle costs of
biobased specialty precision cleaners and solvents were performed for
one product using the BEES analytical tool. The results of those
analyses are presented in the background information for Round 9, which
is posted on the BioPreferred Web site.
10. Sun Care Products (Minimum Biobased Content 53 Percent)
Sun care products are topical products, including sunscreens, sun
blocks, and suntan lotions that absorb or reflect the sun's ultraviolet
radiation to protect the skin.
USDA identified 47 manufacturers and suppliers of 206 different
biobased sun care products. These 47 manufacturers and suppliers do not
necessarily include all manufacturers and suppliers of biobased sun
care products, merely those identified during USDA information
gathering activities. Information supplied by these manufacturers and
suppliers indicates that these products are being used commercially. In
addition, manufacturers and stakeholders identified one test methods
(as shown below) used in evaluating products within this product
category. While other test methods and measures of performance, as well
as performance standards, applicable to products within this product
category may exist, the one test method identified by manufacturers is:
Test Methods
21 CFR part 352 21 CFR part 352 Sun Protection Factor Monogram
USDA attempted to gather data on the potential market for sun care
products within the Federal government as discussed in the section on
agricultural spray adjuvants. These attempts were largely unsuccessful.
However, some Federal agencies provide medical or other personnel care
activities that require the use of sun care products. In addition,
Federal agencies may procure medical care and other similar services
that require the use of sun care products. Thus, they have a need for
sun care products and for services that require the use of such
products. Designation of sun care products will promote the use of
biobased products, furthering the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on 13 sun care products. Analyses of the environmental and
human health benefits and the life-cycle costs of biobased sun care
products were performed for two of the products using the BEES
analytical tool. The results of those analyses are presented in the
background information for Round 9, which is posted on the BioPreferred
Web site.
11. Wastewater Systems Coatings (Minimum Biobased Content 47 Percent)
Wastewater systems coatings are coatings that protect wastewater
containment tanks, liners, roofing, flooring, joint caulking, manholes
and related structures from corrosion. Protective coatings may cover
the entire system or be used to fill cracks in systems.
USDA identified four manufacturers and suppliers of six wastewater
systems coatings. These four manufacturers and suppliers do not
necessarily include all manufacturers and suppliers of wastewater
systems coatings, merely those identified during USDA information
gathering activities. Information supplied by these manufacturers and
suppliers indicates that these products are being used commercially. In
addition, manufacturers and stakeholders identified seven test methods
(as shown below) used in evaluating products within this product
category. While other test methods and measures of performance, as well
as performance standards, applicable to products within this product
category may exist, the seven test methods identified by manufacturers
are:
Test Methods
ASTM D2240; Standard Test Method for Rubber Property--
Durometer Hardness
ASTM D412; Standard Test Methods for Vulcanized Rubber and
Thermoplastic Elastomers-Tension
ASTM D624; Standard Test Method for Tear Strength of
Conventional Vulcanized Rubber and Thermoplastic Elastomers
ASTM D4060; Standard Test Method for Abrasion Resistance of
Organic Coatings by the Taber Abraser
ASTM D638; Standard Test Method for Tensile Properties of
Plastics
ASTM D792; Standard Test Methods for Density and Specific
Gravity (Relative Density) of Plastics by Displacement
ASTM E96; Standard Test Methods for Water Vapor Transmission
of Materials
USDA attempted to gather data on the potential market for
wastewater systems coatings within the Federal government as discussed
in the section on agricultural spray adjuvants. These attempts were
largely unsuccessful. However, many Federal agencies are responsible
for maintaining wastewater systems and routinely procure wastewater
systems coatings, or contract with services that procure these
products. Thus, they have a need for wastewater systems coatings and
for services that require the use of wastewater systems coatings.
Designation of wastewater systems coatings will promote the use of
biobased products, furthering the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics have been
collected on three wastewater systems coatings. Analyses of the
environmental and human health benefits and the life-cycle costs of
biobased wastewater systems coatings were performed for one product
using the BEES analytical tool. The results of those analyses are
presented in the background information for Round 9, which is posted on
the BioPreferred Web site.
12. Water Clarifying Agents (Minimum Biobased Content 92 Percent)
Water clarifying agents are products designed to clarify and
improve the quality of water by reducing contaminants such as excess
nitrites, nitrates, phosphates, ammonia, and built-up sludge from
decaying waste and other organic matter. These products are typically
used in lakes, coves, decorative ponds, and aquaculture operations.
USDA identified 18 manufacturers and suppliers of 39 water
clarifying agents. The 18 manufacturers and suppliers do not
necessarily include all manufacturers and suppliers of biobased water
clarifying agents, merely those identified during USDA information
gathering activities. Information supplied by these manufacturers and
suppliers indicates that these products are being used commercially. In
addition, manufacturers and stakeholders identified three test
[[Page 33281]]
methods (as shown below) used in evaluating products within this
product category. While there may be additional test methods, as well
as performance standards, product certifications, and other measures of
performance, applicable to products within this product category, the
three test methods identified by the manufacturers are:
Test Methods
ATCC Biosafety Level 1; Minimal potential for causing diseases
in humans, plants, animals and aquatic life
NSF Cat. 61; Pretreatment of Potable Water Sources
EPA/600/4-90/027; Methods for Measuring the Acute Toxicity of
Effluents and Receiving Waters to Freshwater and Marine Organisms
USDA attempted to gather data on the potential market for water
clarifying agents within the Federal government as discussed in the
section on agricultural spray adjuvants. These attempts were largely
unsuccessful. However, many Federal agencies routinely perform, or
procure contract services to perform, maintenance, reclamation, or
research activities on bodies of water where these products are used.
Thus, they have a need for water clarifying agents and for services
that require the use of water clarifying agents. Designation of water
clarifying agents will promote the use of biobased products, furthering
the objectives of this program.
Specific product information, including company contact, intended
use, biobased content, and performance characteristics, have been
collected on 11 water clarifying agents. Analyses of the environmental
and human health benefits and the life-cycle costs of water clarifying
agents were performed for one product using the BEES analytical tool.
The results of those analyses are presented in the background
information for Round 9, which is posted on the BioPreferred Web site.
C. Minimum Biobased Contents
USDA has determined that setting a minimum biobased content for
designated product categories is appropriate. Establishing a minimum
biobased content will encourage competition among manufacturers to
develop products with higher biobased contents and will prevent
products with de minimis biobased content from being purchased as a
means of satisfying the requirements of section 9002. USDA believes
that it is in the best interest of the Federal preferred procurement
program for minimum biobased contents to be set at levels that will
realistically allow products to possess the necessary performance
attributes and allow them to compete with non-biobased products in
performance and economics. Setting the minimum biobased content for a
product category at a level met by several of the tested products will
provide more products from which procurement officials may choose, will
encourage the most widespread usage of biobased products by procuring
agencies, and is expected to accomplish the objectives of section 9002.
As discussed in Section IV.A of this preamble, USDA relied
primarily on manufacturers' voluntary submission of information and
product samples to support the proposed designation of these product
categories. However, in selecting the proposed minimum biobased content
for each product category, USDA also considered the biobased content of
several products for which manufacturers have requested certification
to use the USDA Certified Biobased Product label. USDA considered these
data points to be valid and useful in setting the proposed minimum
biobased content because the labeling program specifies that the
reported biobased content must be determined by a third-party testing
entity that is ISO 9001 conformant. Thus, the biobased content data
presented in the following paragraphs includes test results from the
labeling portion of the BioPreferred program as well as the test
results from all of the product samples that were submitted for
analysis under the Federal biobased products preferred procurement
program.
As a result of public comments received on the first designated
product categories rulemaking proposal, USDA decided to account for the
slight imprecision in the analytical method used to determine biobased
content of products when establishing the minimum biobased content.
Thus, rather than establishing the minimum biobased content for a
product category at the tested biobased content of the product selected
as the basis for the minimum value, USDA is establishing the minimum
biobased content at a level three (3) percentage points less than the
tested value. USDA believes that this adjustment is appropriate to
account for the expected variations in analytical results.
USDA encourages procuring agencies to seek products with the
highest biobased content that is practicable in all of the proposed
designated product categories. To assist the procuring agencies in
determining which products have the highest biobased content, USDA will
update the information in the biobased products catalog to include the
biobased content of each product. Those products within each product
category that have the highest biobased content will be listed first
and others will be listed in descending order. USDA is specifically
requesting comments on the proposed minimum biobased contents and also
requests additional data that can be used to re-evaluate the
appropriateness of the proposed minimum biobased contents. As the
market for biobased products develops and USDA obtains additional
biobased content data, it will re-evaluate the established minimum
biobased contents of designated product categories and consider raising
them whenever justified.
The following paragraphs summarize the information that USDA used
to propose minimum biobased contents within each proposed designated
product category.
1. Agricultural Spray Adjuvants
Thirteen of the 62 biobased agricultural spray adjuvants have been
tested for biobased content using ASTM D6866.\3\ The biobased contents
of these 13 biobased agricultural spray adjuvants range from 12 to 100
percent, as follows: 12, 15, 53, 64, 74, 74, 86, 87, 87, 88, 90, 93,
and 100. Because there is a significant break between the values for
the products with the 15 percent and the 53 percent biobased contents,
USDA considered the need to subcategorize this product category.
However, USDA found that there was not sufficient information on the
performance or applicability of the products with the lowest biobased
contents to justify creating a subcategory based on those two products.
Because the biobased contents of the remaining 11 products are spread
over the range of 53 to 100 without any significant gaps or breaks in
the data, USDA is proposing to set the minimum biobased content for
agricultural spray adjuvants at 50 percent, based on the product with a
tested biobased content of 53 percent.
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\3\ ASTM D6866, ``Standard Test Methods for Determining the
Biobased Content of Solid, Liquid, and Gaseous Samples Using
Radiocarbon Analysis,'' is used to distinguish between carbon from
fossil resources (non-biobased carbon) and carbon from renewable
sources (biobased carbon). The biobased content is expressed as the
percentage of total carbon that is biobased carbon.
---------------------------------------------------------------------------
USDA requests additional information on potential subcategories
within this product category. USDA will continue to gather information
on products within this product category, and if sufficient supporting
information becomes available, will consider establishing subcategories
based on
[[Page 33282]]
formulation, performance, or applicability.
2. Animal Cleaning Products
Seven of the 329 biobased animal cleaning products identified have
been tested for biobased content using ASTM D6866. The biobased
contents of these 7 biobased animal cleaning products range from 60
percent to 97 percent, as follows: 60, 63, 69, 74, 74, 77, and 97
percent. Because there is a significant break between the values for
the two products with the highest biobased contents, USDA considered
the need to subcategorize this product category. However, USDA found
that there was not sufficient information on the performance or
applicability of the product with the highest biobased content to
justify creating a subcategory based on that single product. Because
the biobased contents of the remaining 5 products are within a narrow
range, USDA is proposing to set the minimum biobased content for animal
cleaning products at 57 percent, based on the product with a tested
biobased content of 60 percent.
3. Deodorants
Seven of the 82 identified biobased deodorants identified have been
tested for biobased content using ASTM D6866. The biobased contents of
these 7 biobased deodorant products range from 25 percent to 100
percent, as follows: 25, 25, 30, 76, 98, 99, and 100 percent. There are
two significant breaks in the range of data, one between the 30 and 76
percent biobased products and another between the 76 and 98 percent
biobased products. USDA evaluated the available product information to
determine if there were sufficient differences in formulation,
performance, or applicability between these product to justify
subcategorization. However, USDA did not find sufficient information to
justify subcategories within the product category. USDA also did not
find any features of the three lowest biobased content products that
would justify setting the minimum biobased content at a level that
would include these products. The 4 remaining products all have
biobased contents above 75 percent. Therefore, USDA is proposing to set
the minimum biobased content for this product category at 73 percent,
based on the product with the tested biobased content of 76 percent,
the lowest of the 4 remaining products within the product category.
USDA will continue to gather information on products within this
product category, and if sufficient supporting information becomes
available, will consider establishing subcategories based on
formulation, performance, or applicability.
4. Dethatchers
Six of the 14 biobased dethatchers identified have been tested for
biobased content using ASTM D6866. The biobased contents of these 6
biobased dethatchers range from 6 percent to 100 percent, as follows:
6, 10, 35, 90, 98, and 100 percent. There are two significant breaks in
the range of data, one between the 10 and 35 percent biobased products
and another between the 35 and 90 percent biobased products. USDA
evaluated the available product information to determine if there were
sufficient differences in formulation, performance, or applicability
between these products to justify subcategorization. However, USDA did
not find sufficient information to justify subcategories within the
product category. USDA also did not find any features of the three
lowest biobased content products that would justify setting the minimum
biobased content at a level that would include these products.
Therefore, USDA is proposing to set the minimum biobased content for
this product category at 87 percent, based on the product with the
lowest biobased content of the 3 remaining products within the product
category.
USDA will continue to gather information on products within this
product category, and if sufficient supporting information becomes
available, will consider establishing subcategories based on
formulation, performance, or applicability.
5. Fuel Conditioners
Eight of the 25 biobased fuel conditioners identified have been
tested for biobased content using ASTM D6866. The biobased contents of
these 8 biobased fuel conditioners range from 28 percent to 96 percent,
as follows: 28, 38, 49, 67, 75, 77, 89, and 96 percent.
There is a significant break in the data between the 49 percent
biobased product and the 67 percent biobased product. USDA evaluated
the available product information to determine if there were sufficient
differences in formulation, performance, or applicability between these
two product groups to justify subcategorization. However, USDA did not
find sufficient information to justify subcategories within the product
category. USDA also did not find any features of the 28, 38, or 49
percent biobased content products that would justify setting the
minimum biobased content at a level that would include these products.
Therefore, USDA is proposing to set the minimum biobased content for
this product category at 64 percent, based on the product with the
lowest biobased content of those products in the group of products with
the higher tested biobased content.
USDA will continue to gather information on products within this
product category, and if sufficient supporting information becomes
available, will consider establishing subcategories based on
formulation, performance, or applicability.
6. Leather, Vinyl, and Rubber Care Products
Six of the 79 biobased leather, vinyl, and rubber care products
identified have been tested for biobased content using ASTM D6866. The
biobased contents of these 6 biobased leather, vinyl, and rubber care
products range from 8 percent to 88 percent, as follows: 8, 28, 58, 62,
70, and 88 percent. There are two significant breaks in the range of
data, one between the 8 and 28 percent biobased products and another
between the 28 and 58 percent biobased products. USDA evaluated the
available product information to determine if there were sufficient
differences in formulation, performance, or applicability between these
products to justify subcategorization. However, USDA did not find
sufficient information to justify subcategories within the product
category. USDA also did not find any features of the two lowest
biobased content products that would justify setting the minimum
biobased content at a level that would include these products. The
remaining 4 products have biobased contents ranging from 58 to 88
percent, and there are no significant breaks in the range of data nor
are there obvious performance or applicability claims that distinguish
one product from the others. Therefore, USDA is proposing to set the
minimum biobased content for this product category at 55 percent, based
on the product with the lowest biobased content of the 4 remaining
products within the product category.
USDA will continue to gather information on products within this
product category, and if sufficient supporting information becomes
available, will consider establishing subcategories based on
formulation, performance, or applicability.
7. Lotions and Moisturizers
Twenty-seven of the 888 biobased lotions and moisturizers
identified have been tested for biobased content using ASTM D6866. The
biobased contents of these 27 biobased lotions and moisturizers range
from 37 to 100 percent, as follows: 37, 47, 62, 66, 66,
[[Page 33283]]
72, 73, 80, 84, 85, 87, 88, 89, 89, 90, 91, 94, 94, 94, 95, 95, 95, 95,
97, 99, 100, and 100 percent. There is a significant break in the data
between the 47 percent biobased product and the 62 percent biobased
product. USDA could find no distinguishing features claimed for the
products with 37 and 47 percent biobased contents that would lead to
setting the minimum biobased content at such a low level. The biobased
contents of the remaining 25 products are reasonably evenly distributed
between 62 and 100 percent. USDA did not find any performance claims or
other features that would justify creating subcategories for this
product category. Because there are no obvious breaks in the data for
the 25 products with biobased contents above 62 percent, USDA is
proposing to set the minimum biobased content for this product category
at 59 percent based on the product with a tested biobased content of 62
percent.
8. Shaving Products
Five of the 640 biobased shaving products identified have been
tested for biobased content using ASTM D6866. The biobased contents of
these 5 biobased shaving products range from 40 to 100 percent, as
follows: 40, 95, 99, 99, and 100 percent. USDA found no performance or
applicability claims to justify setting the minimum biobased content
for this product category based on the 40 percent product. Because of
the narrow range and the very high tested biobased content of the four
remaining products, USDA is proposing to set the minimum biobased
content for shaving products at 92 percent, based on the product with a
tested biobased content of 95 percent.
9. Specialty Precision Cleaners and Solvents
Nine of the 30 biobased specialty precision cleaners and solvents
identified have been tested for biobased content using ASTM D6866. The
biobased contents of these 9 biobased specialty precision cleaners and
solvents range from 59 percent to 100 percent, as follows: 59, 61, 69,
74, 76, 80, 82, 96, and 100 percent. USDA reviewed the product
information available for this product category and found that the
performance of the product with a tested biobased content of 59 percent
has been demonstrated using numerous aircraft industry standards.
Because the manufacturers of the other products tested do not make such
performance claims for their products, USDA is proposing to set the
minimum biobased content for this product category at 56 percent. USDA
will continue to gather performance information for products within
this product category and, if sufficient information is obtained, will
consider raising the minimum biobased content for the final rule.
10. Sun Care Products
Eighteen of the 206 biobased sun care products identified have been
tested for biobased content using ASTM D6866. The biobased contents of
these 18 biobased sun care products range from 56 to 99 percent, as
follows: 56, 62, 63, 70, 71, 81, 82, 97, 99, 99, 99, 99, 99, 99, 100,
100, 100, and 100 percent. The only significant break in the range of
data is between the 82 and 97 percent products. Because 7 of the 18
data points are well below the 97 to 100 percent level of the 11
products above the break, USDA is not proposing to set the minimum
biobased content based on these products. Because the biobased contents
of the remaining 7 products are within a fairly narrow range, USDA is
proposing to set the minimum biobased content for sun care products at
53 percent, based on the product with a tested biobased content of 56
percent.
11. Wastewater Systems Coatings
Five of the six biobased wastewater systems coatings identified
have been tested for biobased content using ASTM D6866. The biobased
contents of these 5 biobased wastewater systems coatings are 34, 50,
62, 62, and 64 percent. Because of the significant gap between the 34
percent biobased product and the 50 percent product, USDA evaluated the
available product information to determine if there were sufficient
differences in formulation, performance, or applicability between the
products to justify subcategorization. However, USDA did not find
sufficient information to justify subcategories within the product
category. USDA also did not find any features of the 34 percent
biobased content product that would justify setting the minimum
biobased content at a level that would include this product. Therefore,
USDA is proposing to set the minimum biobased content for this product
category at 47 percent, based on the product with the 50 percent
biobased content.
USDA will continue to gather information on products within this
product category, and if sufficient supporting information becomes
available, will consider establishing subcategories based on
formulation, performance, or applicability.
12. Water Clarifying Agents
Ten of the 39 biobased water clarifying agents identified have been
tested for biobased content using ASTM D6866. The biobased contents of
these 10 biobased water clarifying agents range from 95 percent to 100
percent, as follows: 95, 98, 98, 98, 98, 99, 99, 100, 100, and 100
percent. Because the biobased contents of these 10 products are all
very high and they are within a narrow range, USDA is proposing to set
the minimum biobased content for water clarifying agents at 92 percent,
based on the product with a tested biobased content of 95 percent.
D. Compliance Date for Procurement Preference and Incorporation Into
Specifications
USDA intends for the final rule to take effect thirty (30) days
after publication of the final rule. However, as proposed, procuring
agencies would have a one-year transition period, starting from the
date of publication of the final rule, before the procurement
preference for biobased products within a designated product category
would take effect.
USDA is proposing a one-year period before the procurement
preferences would take effect because it recognizes that Federal
agencies will need time to incorporate the preferences into procurement
documents and to revise existing standardized specifications. Both
section 9002(a)(3) and 7 CFR 3201(c) explicitly acknowledge the need
for Federal agencies to have sufficient time to revise the affected
specifications to give preference to biobased products when purchasing
products within the designated product categories. Procuring agencies
will need time to evaluate the economic and technological feasibility
of the available biobased products for their agency-specific uses and
for compliance with agency-specific requirements, including
manufacturers' warranties for machinery in which the biobased products
would be used.
By the time these product categories are promulgated for
designation, Federal agencies will have had a minimum of 18 months
(from the date of this Federal Register notice), and much longer
considering when the Guidelines were first proposed and these
requirements were first laid out, to implement these requirements.
For these reasons, USDA proposes that the mandatory preference for
biobased products under the designated product categories take effect
one year after promulgation of the final rule. The one-year period
provides these agencies
[[Page 33284]]
with ample time to evaluate the economic and technological feasibility
of biobased products for a specific use and to revise the
specifications accordingly. However, some agencies may be able to
complete these processes more expeditiously, and not all uses will
require extensive analysis or revision of existing specifications.
Although it is allowing up to one year, USDA encourages procuring
agencies to implement the procurement preferences as early as
practicable for procurement actions involving any of the designated
product categories.
V. Where can agencies get more information on these USDA-designated
product categories?
Information used to develop this proposed rule can be found in the
background information for Round 9, which is posted on the BioPreferred
Web site located at: http://www.biopreferred.gov. At the BioPreferred
Web site, click on the ``Federal Procurement Preference'' link on the
right side of the page and then on the ``Rules and Regulations'' link.
At the next screen, click on the Supporting Documentation link under
Round 9 Designation Product Categories under the Proposed Regulations
section.
Further, once the product category designations in today's proposal
become final, manufacturers and vendors voluntarily may make available
information on specific products, including product and contact
information, for posting by the Agency on the BioPreferred Web site.
USDA has begun performing periodic audits of the information displayed
on the BioPreferred Web site and, where questions arise, is contacting
the manufacturer or vendor to verify, correct, or remove incorrect or
out-of-date information. Procuring agencies should contact the
manufacturers and vendors directly to discuss specific needs and to
obtain detailed information on the availability and prices of biobased
products meeting those needs.
By accessing the BioPreferred Web site, agencies will also be able
to obtain the voluntarily-posted information on each product
concerning: Relative price; life-cycle costs; hot links directly to a
manufacturer's or vendor's Web site (if available); performance
standards (industry, government, military, ASTM/ISO) that the product
has been tested against; and environmental and public health
information from the BEES analysis or the alternative analysis embedded
in the ASTM Standard D7075, ``Standard Practice for Evaluating and
Reporting Environmental Performance of Biobased Products.''
VI. Regulatory Information
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Executive Order 12866, as supplemented by Executive Order 13563,
requires agencies to determine whether a regulatory action is
``significant.'' The Order defines a ``significant regulatory action''
as one that is likely to result in a rule that may: ``(1) Have an
annual effect on the economy of $100 million or more or adversely
affect, in a material way, the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities; (2)
Create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) Materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) Raise novel legal
or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.''
Today's proposed rule has been determined by the Office of
Management and Budget to be not significant for purposes of Executive
Order 12866. We are not able to quantify the annual economic effect
associated with today's proposed rule. As discussed earlier in this
preamble, USDA made extensive efforts to obtain information on the
Federal agencies' usage within the 12 designated product categories.
These efforts were largely unsuccessful. Therefore, attempts to
determine the economic impacts of today's proposed rule would require
estimation of the anticipated market penetration of biobased products
based upon many assumptions. In addition, because agencies have the
option of not purchasing products within designated product categories
if price is ``unreasonable,'' the product is not readily available, or
the product does not demonstrate necessary performance characteristics,
certain assumptions may not be valid. While facing these quantitative
challenges, USDA relied upon a qualitative assessment to determine the
impacts of today's proposed rule. Consideration was also given to the
fact that agencies may choose not to procure products within designated
product categories due to unreasonable price.
1. Summary of Impacts
Today's proposed rule is expected to have both positive and
negative impacts to individual businesses, including small businesses.
USDA anticipates that the biobased Federal preferred procurement
program will provide additional opportunities for businesses and
manufacturers to begin supplying products under the proposed designated
biobased product categories to Federal agencies and their contractors.
However, other businesses and manufacturers that supply only non-
qualifying products and do not offer biobased alternatives may
experience a decrease in demand from Federal agencies and their
contractors. USDA is unable to determine the number of businesses,
including small businesses, that may be adversely affected by today's
proposed rule. The proposed rule, however, will not affect existing
purchase orders, nor will it preclude businesses from modifying their
product lines to meet new requirements for designated biobased
products. Because the extent to which procuring agencies will find the
performance, availability and/or price of biobased products acceptable
is unknown, it is impossible to quantify the actual economic effect of
the rule.
2. Benefits of the Proposed Rule
The designation of these product categories provides the benefits
outlined in the objectives of section 9002; to increase domestic demand
for many agricultural commodities that can serve as feedstocks for
production of biobased products, and to spur development of the
industrial base through value-added agricultural processing and
manufacturing in rural communities. On a national and regional level,
today's proposed rule can result in expanding and strengthening markets
for biobased materials used in these product categories.
3. Costs of the Proposed Rule
Like the benefits, the costs of today's proposed rule have not been
quantified. Two types of costs are involved: Costs to producers of
products that will compete with the preferred products and costs to
Federal agencies to provide procurement preference for the preferred
products. Producers of competing products may face a decrease in demand
for their products to the extent Federal agencies refrain from
purchasing their products. However, it is not known to what extent this
may occur. Pre-award procurement costs for Federal agencies may rise
minimally as the contracting officials conduct market research to
evaluate the performance,
[[Page 33285]]
availability and price reasonableness of preferred products before
making a purchase.
B. Regulatory Flexibility Act (RFA)
The RFA, 5 U.S.C. 601-602, generally requires an agency to prepare
a regulatory flexibility analysis of any rule subject to notice and
comment rulemaking requirements under the Administrative Procedure Act
or any other statute unless the agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
USDA evaluated the potential impacts of its proposed designation of
these product categories to determine whether its actions would have a
significant impact on a substantial number of small entities. Because
the Federal preferred procurement program established under section
9002 applies only to Federal agencies and their contractors, small
governmental (city, county, etc.) agencies are not affected. Thus, the
proposal, if promulgated, will not have a significant economic impact
on small governmental jurisdictions.
USDA anticipates that this program will affect entities, both large
and small, that manufacture or sell biobased products. For example, the
designation of product categories for Federal preferred procurement
will provide additional opportunities for businesses to manufacture and
sell biobased products to Federal agencies and their contractors.
Similar opportunities will be provided for entities that supply
biobased materials to manufacturers.
The intent of section 9002 is largely to stimulate the production
of new biobased products and to energize emerging markets for those
products. Because the program is still in its infancy, however, it is
unknown how many businesses will ultimately be affected. While USDA has
no data on the number of small businesses that may choose to develop
and market biobased products within the product categories designated
by this rulemaking, the number is expected to be small. Because
biobased products represent a small emerging market, only a small
percentage of all manufacturers, large or small, are expected to
develop and market biobased products. Thus, the number of small
businesses manufacturing biobased products affected by this rulemaking
is not expected to be substantial.
The Federal preferred procurement program may decrease
opportunities for businesses that manufacture or sell non-biobased
products or provide components for the manufacturing of such products.
Most manufacturers of non-biobased products within the product
categories being proposed for designation for Federal preferred
procurement in this rule are expected to be included under the
following NAICS codes: 325320 (pesticide and other agricultural
chemicals manufacturing), 325411 (medicinal and botanical
manufacturing), 325412 (pharmaceutical preparation manufacturing),
325510 (paint and coating manufacturing), 325612 (polish and other
sanitation goods manufacturing), and 325620 (toilet preparation
manufacturing). USDA obtained information on these six NAICS categories
from the U.S. Census Bureau's Economic Census database. USDA found that
the Economic Census reports about 3,756 companies within these 6 NAICS
categories and that these companies own a total of about 4,374
establishments. Thus, the average number of establishments per company
is about 1.2. The Census data also reported that of the 4,374
individual establishments, about 4,258 (97.3 percent) have fewer than
500 employees. USDA also found that the overall average number of
employees per company among these industries is about 92 and that the
pharmaceutical preparation manufacturing segment (with an average of
about 250) is the only segment reporting an average of more than 100
employees per company. Thus, nearly all of the businesses fall within
the Small Business Administration's definition of a small business
(less than 500 employees, in most NAICS categories).
USDA does not have data on the potential adverse impacts on
manufacturers of non-biobased products within the product categories
being designated, but believes that the impact will not be significant.
Most of the product categories being proposed for designation in this
rulemaking are typical consumer products widely used by the general
public and by industrial/commercial establishments that are not subject
to this rulemaking. Thus, USDA believes that the number of small
businesses manufacturing non-biobased products within the product
categories being designated and selling significant quantities of those
products to government agencies affected by this rulemaking to be
relatively low. Also, this proposed rule will not affect existing
purchase orders and it will not preclude procuring agencies from
continuing to purchase non-biobased products when biobased products do
not meet the availability, performance, or reasonable price criteria.
This proposed rule will also not preclude businesses from modifying
their product lines to meet new specifications or solicitation
requirements for these products containing biobased materials.
After considering the economic impacts of this proposed rule on
small entities, USDA certifies that this action will not have a
significant economic impact on a substantial number of small entities.
While not a factor relevant to determining whether the proposed
rule will have a significant impact for RFA purposes, USDA has
concluded that the effect of the rule will be to provide positive
opportunities to businesses engaged in the manufacture of these
biobased products. Purchase and use of these biobased products by
procuring agencies increase demand for these products and result in
private sector development of new technologies, creating business and
employment opportunities that enhance local, regional, and national
economies.
C. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This proposed rule has been reviewed in accordance with Executive
Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights, and does not contain
policies that would have implications for these rights.
D. Executive Order 12988: Civil Justice Reform
This rule has been reviewed in accordance with Executive Order
12988, Civil Justice Reform. This rule does not preempt State or local
laws, is not intended to have retroactive effect, and does not involve
administrative appeals.
E. Executive Order 13132: Federalism
This proposed rule does not have sufficient federalism implications
to warrant the preparation of a Federalism Assessment. Provisions of
this proposed rule will not have a substantial direct effect on States
or their political subdivisions or on the distribution of power and
responsibilities among the various government levels.
F. Unfunded Mandates Reform Act of 1995
This proposed rule contains no Federal mandates under the
regulatory provisions of Title II of the Unfunded Mandates Reform Act
of 1995 (UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal
governments, or the private sector.
[[Page 33286]]
Therefore, a statement under section 202 of UMRA is not required.
G. Executive Order 12372: Intergovernmental Review of Federal Programs
For the reasons set forth in the Final Rule Related Notice for 7
CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is
excluded from the scope of the Executive Order 12372, which requires
intergovernmental consultation with State and local officials. This
program does not directly affect State and local governments.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Today's proposed rule does not significantly or uniquely affect
``one or more Indian tribes, * * * the relationship between the Federal
Government and Indian tribes, or * * * the distribution of power and
responsibilities between the Federal Government and Indian tribes.''
Thus, no further action is required under Executive Order 13175.
I. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 through 3520), the information collection under this proposed rule
is currently approved under OMB control number 0503-0011.
J. E-Government Act Compliance
USDA is committed to compliance with the E-Government Act, which
requires Government agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. USDA is implementing an electronic
information system for posting information voluntarily submitted by
manufacturers or vendors on the products they intend to offer for
Federal preferred procurement under each designated product category.
For information pertinent to E-Government Act compliance related to
this rule, please contact Ron Buckhalt at (202) 205-4008.
List of Subjects in 7 CFR Part 3201
Biobased products, Procurement.
For the reasons stated in the preamble, the Department of
Agriculture proposes to amend 7 CFR chapter XXXII as follows:
CHAPTER XXXII--OFFICE OF PROCUREMENT AND PROPERTY MANAGEMENT
PART 3201--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL
PROCUREMENT
1. The authority citation for part 3201 continues to read as
follows:
Authority: 7 U.S.C. 8102.
2. Add Sec. Sec. 3201.88 through 3201.99 to subpart B to read as
follows:
Sec.
3201.88 Agricultural spray adjuvants.
3201.89 Animal cleaning products.
3201.90 Deodorants.
3201.91 Dethatcher products.
3201.92 Fuel conditioners.
3201.93 Leather, vinyl, and rubber care products.
3201.94 Lotions and moisturizers.
3201.95 Shaving products.
3201.96 Specialty precision cleaners and solvents.
3201.97 Sun care products.
3201.98 Wastewater systems coatings.
3201.99 Water clarifying agents.
Sec. 3201.88 Agricultural spray adjuvants.
(a) Definition. Products mixed in the spray tank with the
herbicide, pesticide, or fertilizer formulas that will improve the
efficiency and the effectiveness of the chemicals, including sticking
agents, wetting agents, etc.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 50 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased agricultural spray adjuvants. By that date, Federal
agencies that have the responsibility for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased agricultural spray
adjuvants.
Sec. 3201.89 Animal cleaning products.
(a) Definition. Products designed to clean, condition, or remove
substances from animal hair or other parts of an animal.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 57 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased animal cleaning products. By that date, Federal
agencies that have the responsibility for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased animal cleaning
products.
Sec. 3201.90 Deodorants.
(a) Definition. Products that are designed for inhibiting or
masking perspiration and other body odors and that are often combined
with an antiperspirant.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 73 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased deodorants. By that date, Federal agencies that
have the responsibility for drafting or reviewing specifications for
products to be procured shall ensure that the relevant specifications
require the use of biobased deodorants.
Sec. 3201.91 Dethatchers.
(a) Definition. Products used to remove non-decomposed plant
material accumulated in grassy areas.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 87 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased dethatchers. By that date, Federal agencies that
have the responsibility for drafting or reviewing specifications for
products to be procured shall ensure that the relevant specifications
require the use of biobased dethatchers.
Sec. 3201.92 Fuel conditioners.
(a) Definition. Products formulated to improve the performance and
efficiency
[[Page 33287]]
of engines by providing benefits such as removing accumulated deposits,
increasing lubricity, removing moisture, increasing the cetane number,
and/or preventing microbial growths within the fuel system.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 64 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased fuel conditioners. By that date, Federal agencies
that have the responsibility for drafting or reviewing specifications
for products to be procured shall ensure that the relevant
specifications require the use of biobased fuel conditioners.
Sec. 3201.93 Leather, vinyl, and rubber care products.
(a) Definition. Products that help clean, nourish, protect, and
restore leather, vinyl, and rubber surfaces, including cleaners,
conditioners, protectants, polishes, waxes, etc.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 55 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased leather, vinyl, and rubber care products. By that
date, Federal agencies that have the responsibility for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased leather, vinyl,
and rubber care products.
Sec. 3201.94 Lotions and moisturizers.
(a) Definition. Creams and oils used to soften and treat damaged
skin.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 59 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased lotions and moisturizers. By that date, Federal
agencies that have the responsibility for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased lotions and
moisturizers.
Sec. 3201.95 Shaving products.
(a) Definition. Products designed for every step of the shaving
process, including shaving creams, gels, soaps, lotions, and aftershave
balms.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 92 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased shaving products. By that date, Federal agencies
that have the responsibility for drafting or reviewing specifications
for products to be procured shall ensure that the relevant
specifications require the use of biobased shaving products.
Sec. 3201.96 Specialty precision cleaners and solvents.
(a) Definition. Cleaners and solvents used in specialty
applications. These materials may be used in neat solution, diluted
with water, or in hand wiping applications.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 56 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased specialty precision cleaners and solvents. By that
date, Federal agencies that have the responsibility for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased specialty
precision cleaners and solvents.
Sec. 3201.97 Sun care products.
(a) Definition. Products including sunscreens, sun blocks, and
suntan lotions that are topical products that absorb or reflect the
sun's ultraviolet radiation to protect the skin.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 53 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased sun care products. By that date, Federal agencies
that have the responsibility for drafting or reviewing specifications
for products to be procured shall ensure that the relevant
specifications require the use of biobased sun care products.
Sec. 3201.98 Wastewater systems coatings.
(a) Definition. Coatings that protect wastewater containment tanks,
liners, roofing, flooring, joint caulking, manholes and related
structures from corrosion. Protective coatings may cover the entire
system or be used to fill cracks in systems.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 47 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product.
(c) Preference compliance date. No later than [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased wastewater systems coatings. By that date, Federal
agencies that have the responsibility for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased wastewater systems
coatings.
Sec. 3201.99 Water clarifying agents.
(a) Definition. Products designed to clarify and improve the
quality of water by reducing contaminants such as excess nitrites,
nitrates, phosphates, ammonia, and built-up sludge from decaying waste
and other organic matter.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 92 percent,
which shall be
[[Page 33288]]
based on the amount of qualifying biobased carbon in the product as a
percent of the weight (mass) of the total organic carbon in the
finished product.
(c) Preference compliance date. No later than [date one year after
the date of publication of the final rule], procuring agencies, in
accordance with this part, will give a procurement preference for
qualifying biobased water clarifying agents. By that date, Federal
agencies that have the responsibility for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased water clarifying
agents.
Dated: May 22, 2012.
Pearlie S. Reed,
Assistant Secretary For Administration, U.S. Department of Agriculture.
[FR Doc. 2012-13340 Filed 6-4-12; 8:45 am]
BILLING CODE 3410-93-P