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/ Wednesday, May 14, 2008
[Federal Register: May 14, 2008 (Volume 73, Number 94)]
[Rules and Regulations]
[Page 27957-27975]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my08-18]
[[Page 27957]]
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Part IV
Department of Agriculture
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Office of Energy Policy and New Uses
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7 CFR Part 2902
Designation of Biobased Items for Federal Procurement; Final Rule
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DEPARTMENT OF AGRICULTURE
Office of Energy Policy and New Uses
7 CFR Part 2902
RIN 0503-AA31
Designation of Biobased Items for Federal Procurement
AGENCY: Office of Energy Policy and New Uses, USDA.
ACTION: Final rule.
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SUMMARY: The U.S. Department of Agriculture (USDA) is amending the
guidelines for designating biobased products for Federal procurement,
to add ten sections to designate items, including subcategories, within
which biobased products will be afforded Federal procurement
preference, as provided for under section 9002 of the Farm Security and
Rural Investment Act of 2002. USDA also is establishing a minimum
biobased content for each of these items and subcategories.
DATES: This rule is effective June 13, 2008.
FOR FURTHER INFORMATION CONTACT: Marvin Duncan, USDA, Office of the
Chief Economist, Office of Energy Policy and New Uses, Room 4059, South
Building, 1400 Independence Avenue SW., MS-3815 Washington, DC 20250-
3815; e-mail: mduncan@oce.usda.gov; phone (202) 401-0461. Information
regarding the Federal Procurement of Biobased Products (one part of the
BioPreferred Program) is available on the Internet at http://
www.biopreferred.gov.
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. Authority
II. Background
III. Summary of Changes
IV. Discussion of Comments
V. Regulatory Information
A. Executive Order 12866: Regulatory Planning and 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. Government Paperwork Elimination Act Compliance
I. Authority
These items, including their subcategories, are designated under
the authority of section 9002 of the Farm Security and Rural Investment
Act of 2002 (FSRIA), 7 U.S.C. 8102 (referred to in this document as
``section 9002'').
II. Background
As part of the Federal Procurement of Biobased Products, USDA
published on August 17, 2006, a proposed rule in the Federal Register
(FR) for the purpose of designating a total of 10 items for the
preferred procurement of biobased products by Federal agencies
(referred hereafter in this FR notice as the ``preferred procurement
program''). This proposed rule can be found at 71 FR 47590. This
rulemaking is referred to in this preamble as Round 3 (RIN 0503-AA31).
The Round 3 proposed rule proposed designating the following items,
including their subcategories, for the preferred procurement program:
2-cycle engine oils; lip care products; non-durable films; \1\
stationary equipment hydraulic fluids; disposable cutlery; \2\ glass
cleaners; greases, including food grade greases, multipurpose greases,
rail track greases, truck greases, and greases not elsewhere specified
as subcategories; dust suppressants; carpets; and carpet and upholstery
cleaners.
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\1\ At proposal, this item was identified as ``biodegradable
films.'' Based on comments received, and as explained in this
preamble, USDA has renamed this item as ``films'' and combined it
with the proposed item ``durable films'' that was included in the
October 11, 2006 Round 4 proposal (71 FR 59862).
\2\ At proposal, this item was identified as ``biodegradable
cutlery.'' Based on comments received, and as explained in this
preamble, USDA has renamed this item as ``disposable cutlery.''
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Today's final rule designates the following 10 items, including
subcategories, within which biobased products will be afforded Federal
procurement preference: 2-cycle engine oils; lip care products; films,
including semi-durable films and non-durable films as subcategories;
stationary equipment hydraulic fluids; disposable cutlery; glass
cleaners; greases, including food grade greases, multipurpose greases,
rail track greases, truck greases, and greases not elsewhere specified
as its subcategories; dust suppressants; carpets; and carpet and
upholstery cleaners, including spot removers and general purpose
cleaners as subcategories. USDA has determined that each of the items,
including the subcategories within them, being designated under today's
rulemaking meets the necessary statutory requirements; that they are
being produced with biobased products; and that their procurement will
carry out the following objectives of section 9002: To improve demand
for biobased products; to spur development of the industrial base
through value-added agricultural processing and manufacturing in rural
communities; and to enhance the Nation's energy security by
substituting biobased products for products derived from imported oil
and natural gas.
When USDA designates by rulemaking an item (a generic grouping of
products) for preferred procurement under the BioPreferred Program,
manufacturers of all products under the umbrella of that item that meet
the requirements to qualify for preferred procurement can claim that
status for their products. To qualify for preferred procurement, a
product must be within a designated item and must contain at least the
minimum biobased content established for the designated item. When the
designation of specific items is finalized, USDA will invite the
manufacturers of these qualifying products to post information on the
product, contacts, and performance testing on its BioPreferred Web
site, http://www.biopreferred.gov. Procuring agencies will be able to
utilize this Web site as one tool to determine the availability of
qualifying biobased products under a designated item. Once USDA
designates an item, procuring agencies are required generally to
purchase biobased products within these designated items, including
their subcategories, where the purchase price of the procurement item
exceeds $10,000 or where the quantity of such items or of functionally
equivalent items purchased over the preceding fiscal year equaled
$10,000 or more.
Subcategorization. Most of the items USDA is considering for
designation for preferred procurement cover a wide range of products.
For some items, there are groups of products within the item that meet
different markets and uses and/or different performance specifications.
For example, within the designated item ``hand cleaners and
sanitizers,'' some products are required to meet performance
specifications for sanitizing, while other products do not need to meet
these specifications. Where such subgroups, or subcategories, exist,
USDA intends to create subcategories. Thus, for example, for the
designated item ``hand cleaners and sanitizers,'' USDA determined that
it was reasonable to create a ``hand cleaner'' subcategory and a ``hand
sanitizer'' subcategory. Sanitizing specifications would be applicable
to the later subcategory, but not the former.
[[Page 27959]]
In sum, USDA looks at the products within each item to evaluate whether
there are groups of products within the item that meet different
performance specifications and, where USDA finds this type of
difference, it intends to create subcategories.
For some items, however, USDA may not have sufficient information
at the time of proposal to create subcategories within an item. For
example, USDA may know that there are different performance
specifications that de-icing products are required to meet, but it has
only information on one type of de-icing product. In such instances,
USDA may either designate the item without creating subcategories
(i.e., defer the creation of subcategories) or designate one
subcategory and defer designation of other subcategories within the
item until additional information is obtained on products within these
other subcategories.
Within today's rulemaking, USDA has created subcategories within
three items--films, greases, and carpet and upholstery cleaners. For
films, the subcategories are semi-durable films and non-durable films.
For greases, the subcategories are: Food grade greases, multipurpose
greases, rail track greases, truck greases, and greases not elsewhere
specified. For carpet and upholstery cleaners, the subcategories are
spot removers and general purpose cleaners.
Minimum Biobased Contents. The minimum biobased contents being
established with today's rulemaking are based on products for which
USDA has biobased content test data. In addition to considering the
biobased content test data for each item, USDA also considers other
factors when establishing the minimum biobased content. These other
factors include: Public comments received on the proposed minimum
biobased contents; product performance information to justify the
inclusion of products at lower levels of biobased content; and the
range, groupings, and breaks in the biobased content test data array.
Consideration of this information allows USDA to establish minimum
biobased contents on a broad set of factors to assist the Federal
procurement community in its decision to purchase biobased products.
USDA makes every effort to obtain biobased content test data on
multiple products within each item. For most designated items, USDA has
biobased content test data on more than one product within a designated
item. However, USDA must rely on biobased product manufacturers to
voluntarily submit product information and, in some cases, USDA has
been able to obtain biobased content data for only a single product
within a designated item. As USDA obtains additional data on the
biobased contents for products within these ten designated items and
their subcategories, USDA will evaluate whether the minimum biobased
content for a designated item or subcategory will be revised.
USDA anticipates that the minimum biobased content of an item or
subcategory that is based on a single product is more likely to change
as additional products in those items and subcategories are identified
and tested. In today's rulemaking, none of the minimum biobased
contents are based on a single tested product.
For all items and subcategories where additional information
indicates that it is appropriate to revise a minimum biobased content
established under today's rulemaking, USDA will propose the change in a
notice in the Federal Register to allow public comment on the proposed
revised minimum biobased content. USDA will then consider the public
comments and issue a final rulemaking on the minimum biobased content.
Overlap with EPA's Comprehensive Procurement Guideline program for
recovered content products. Some of the products that are biobased
items designated for preferred procurement may also be items the
Environmental Protection Agency (EPA) has designated under the EPA's
Comprehensive Procurement Guideline (CPG) for Products Containing
Recovered Materials. Where that occurs, an EPA-designated recovered
content product (also known as ``recycled content products'' or ``EPA-
designated products'') has priority in Federal procurement over the
qualifying biobased product as identified in 7 CFR 2902.2. In
situations where it believes there may be an overlap, USDA is asking
manufacturers of qualifying biobased products to provide additional
product and performance information to Federal agencies 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. As this information becomes available, USDA will place it on
the BioPreferred Web site with its catalog of qualifying biobased
products.
In cases where USDA believes an overlap with EPA-designated
recovered content products may occur, manufacturers are being asked 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 petroleum-based components and
whether the product contains recovered materials. Federal agencies may
also ask manufacturers for information on a product's biobased content
and its profile against environmental and health measures and life-
cycle costs (the Building for Environmental and Economic Sustainability
(BEES) analysis or ASTM Standard D7075 for evaluating and reporting on
environmental performance of biobased products). Such information will
permit agencies to determine whether or not an overlap occurs.
Section 6002 of RCRA requires a procuring agency procuring an item
designated by EPA generally to procure such items composed of the
highest percentage of recovered materials content practicable. However,
a procuring agency may decide not to procure such an item based on a
determination that the item fails to meet the reasonable performance
standards or specifications of the procuring agency. An item with
recovered materials content may not meet reasonable performance
standards or specifications, for example, if the use of the item with
recovered materials content would jeopardize the intended end use of
the item.
Where a biobased item 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 cost, availability, and performance.
This final rule designates three items for preferred procurement
for which there may be overlap with EPA-designated recovered content
products. These items are: (1) Films in the semi-durable films
subcategory, (2) stationary equipment hydraulic fluids and (3) carpets.
Depending on how they are to be used, qualifying products under
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these three items may overlap, respectively, with the EPA-designated
recovered content products ``plastic trash bags,'' ``re-refined
lubricating oil,'' and ``carpets (polyester).'' EPA provides recovered
materials content recommendations for these three recovered content
products in a Recovered Materials Advisory Notice (RMAN I). The RMAN
recommendations for each of these CPG products can be found by
accessing EPA's Web site http://www.epa.gov/epaoswer/non-hw/procure/
products.htm and then clicking on the appropriate product name.
EPA is proposing to designate nylon carpets as a recovered content
product. If and when EPA finalizes designation of nylon carpets as a
recovered content product, then carpets would have the potential to
overlap with these types of carpets as well as the currently EPA-
designated recovered content polyester carpets.
Future Designations. In making future designations, USDA will
continue to conduct market searches to identify manufacturers of
biobased products within items. USDA will then contact the identified
manufacturers to solicit samples of their products for voluntary
submission for biobased content testing and for the BEES analytical
tool. Based on these results, USDA will then propose new items for
designation for preferred procurement.
As stated in the preamble to the first six items designated for
preferred procurement (71 FR 13686, March 16, 2006), USDA plans to
identify approximately 10 items in each future rulemaking. USDA has
developed a preliminary list of items for future designation. This list
is available on the BioPreferred Web site. While this list presents an
initial prioritization of items for designation, USDA cannot identify
with any certainty which items will be presented in each of the future
rulemakings. Items may be added or dropped and the information
necessary to designate an item may take more time to obtain than an
item lower on the prioritization list.
III. Summary of Changes
As the result of comments received on the proposed rule (see
Section IV), USDA made changes to the rule, which are summarized below.
Item names. The names for two of the 10 items were revised.
``Biodegradable Films'' is now ``Films.'' ``Biodegradable Cutlery'' is
now ``Disposable Cutlery.''
Item Definitions. The definitions of six of the 10 items were
revised to varying degrees. These six items are: 2-cycle engine oils;
films; stationary equipment hydraulic fluids; disposable cutlery;
greases; and carpets.
Subcategories. In addition to finalizing the proposed subcategories
under the ``greases'' item, subcategories were created for two items.
The item that was proposed as ``biodegradable films'' and the proposed
item ``durable films'' that was included in the October 11, 2006, Round
4 proposal (71 FR 59862) were combined as two subcategories (semi-
durable films and non-durable films) under an item named ``films.'' The
carpet and upholstery cleaners item was subcategorized into (1) spot
removers and (2) general purpose cleaners.
Minimum biobased content. Several of the proposed minimum biobased
contents for the designated items have changed for the final rule in
response to public comments and in consideration of available product
performance information. As a result of the comments received regarding
the proposed minimum biobased contents and the availability of
additional biobased content tests for several items, USDA re-evaluated
the proposed minimum biobased contents of all of the items.
Items for which the minimum biobased content was changed from the
proposed level are presented here and the rationale for the changes is
discussed in the section of this preamble presenting the item-specific
comments and responses.
For 2-cycle engine oils, the proposed minimum biobased content of 7
percent was changed to 34 percent.
For the films item (proposed as ``biodegradable films''), the
proposed minimum biobased content of 22 percent was changed to 45
percent for the semi-durable films subcategory and 85 percent for the
non-durable films subcategory.
For the stationary equipment hydraulic fluids, the proposed minimum
biobased content of 46 percent was changed to 44 percent.
For the disposable cutlery item (proposed as ``biodegradable
cutlery''), the proposed minimum biobased content of 33 percent was
changed to 48 percent.
For glass cleaners, the proposed minimum biobased content of 23
percent was changed to 49 percent.
For the greases item, the proposed 73 percent minimum biobased
content for the multipurpose greases subcategory was changed to 72
percent and the proposed 72 percent minimum biobased content for the
truck greases subcategory was changed to 71 percent.
For dust suppressants, the proposed minimum biobased content of 66
percent was changed to 85 percent.
For the proposed carpet and upholstery cleaners item the proposed
minimum biobased content of 34 percent was changed to 54 percent for
the general purpose cleaners subcategory and the minimum biobased
content for the spot removers subcategory was set at 7 percent.
Overlap with EPA CPG products. For the items stationary equipment
hydraulic fluids and carpets, potential overlap with EPA CPG products
was added to the final rule. Then, for both items that may overlap with
EPA CPG products (re-refined lubricating oils and polyester carpets), a
note was added to facilitate finding information on the two EPA CPG
products.
IV. Discussion of Comments
USDA solicited comments on the proposed rule for 60 days ending on
October 16, 2006. USDA received comments from 31 commenters by that
date. The comments were from private citizens, individual companies,
industry organizations, one foreign government, and various Federal
agencies.
The comments contained in this Federal Register (FR) notice address
general and specific comments related to Round 3 items. In addition to
the information provided in the responses to public comments presented
in this preamble, USDA has prepared a technical support document titled
``Technical Support for Final Rule--Round 3 Designated Items,'' which
contains documentation of USDA's efforts to research and respond to
public comments. The technical support document is available on the
BioPreferred Web site. The technical support document can be located by
clicking on the Proposed and Final Regulations link on the left side of
the BioPreferred Web site's home page (http://www.biopreferred.gov).
Click on Supporting Documentation under Round 3 Designation under Final
Rules. This will bring you to the link to the technical support
document.
The technical support document includes, but is not limited to: (1)
Information on whether the standards presented in the preamble to the
proposed rule are test methods, performance standards, or ``other''
(e.g., a certification by a trade association or council, a
classification system) (Chapter 1.0), (2) BEES impact values for each
item (Appendix B), and (3) a tabular and graphical presentation of the
BEES environmental performance scores for each item (Appendix C). This
information is being presented in the
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technical support document as the result of general comments received
on both Rounds 2 and 3. The technical support document for Round 3
includes additional information as identified in the remainder of this
preamble.
General Comments
Minimum Biobased Content
Several commenters felt that USDA was proposing minimum biobased
contents that were too low for many of the products. These, and other,
commenters also provided specific comments on the proposed minimum
biobased contents for specific items. Those specific comments are
addressed later in the preamble under Item Specific Comments. Here,
USDA is responding to the comments that more generally address the
procedure USDA uses in proposing minimum biobased contents.
Comment: Several commenters were concerned about the approach USDA
used to determine minimum biobased contents. One commenter recommended
that, rather than setting the threshold level below the lowest
percentage observed in the lowest end product in the survey, USDA
reward the top half or top two thirds of the respondents, at least
where the spread is more than 20 percentage points. Two other
commenters recommended that USDA consider a minimum threshold of 50
percent biobased content given that products with biobased contents
above 50 percent are available in all categories.
Response: In response to these public comments and ongoing
discussions with other Federal agencies, and because several additional
biobased content test results were obtained after proposal, USDA re-
evaluated the proposed minimum biobased contents for each of the
proposed items. In re-evaluating the minimum biobased contents, USDA
considered factors including the number of, and the distribution of,
the test data points as well as the product manufacturer's claims
related to performance, biodegradability, and range of applicability.
In those cases where all of the products' biobased contents were
within a narrow range and no data were available to distinguish
significant performance differences among the products, USDA set the
minimum biobased content at the level that would allow preferred
procurement for all of the products for which data were available.
For items where the products' biobased contents showed a wider
range and included one or more significant breaks in the range, USDA
reviewed the product information to determine if there were performance
or applicability differences among the products that could be used for
creating subcategories based on the groups of products that have
similar biobased contents. For example, if the biobased contents of
half of the products within an item were in the 30 to 50 percent range
and the other half were in the 80 to 95 percent range, USDA considered
whether the product information supported the creation of two
subcategories. Information that was considered to be supportive of
subcategorization were claims of product features such as ``special
applications,'' ``high temperature applications,'' or ``single-use
versus multiple-use.'' In those cases where the biobased content and
other product information supported subcategorization, USDA has created
subcategories in this final rule.
In other cases, USDA has considered subcategorization for an item
based upon initial performance information, but USDA does not currently
have sufficient data to justify creating subcategories. Where that is
the case, USDA has generally set the minimum biobased content based on
the group of products with the higher biobased contents. For these
items, USDA will continue to gather data on products within the item
and will create subcategories in a future rulemaking if sufficient data
are obtained.
For some items, there was a significant range in the reported
biobased contents but the data points were evenly spread over the
entire range. In those cases, if there were no data to distinguish the
features of any grouping or subset of the products, USDA has generally
set the minimum biobased content based on the product with the lowest
biobased content in order to allow procuring agencies the widest
selection of products from which to select those that best meet their
needs. As additional product performance information becomes available
and as additional products within these items become available with
higher biobased contents, USDA will consider increasing the minimum
biobased content or creating subcategories where performance
characteristics or application use justify subcategorizing.
As a result of the re-evaluation, many of the proposed minimum
biobased contents have been revised for the final rule. These revisions
will be presented and discussed in the item specific sections later in
this preamble. For two items, USDA reviewed the biobased content data
but did not find sufficient justification for revising the proposed
minimum biobased content level. For lip care products, 8 biobased
content test results were available (85, 86, 88, 88, 92, 93, 98, and
100 percent). Because this is a narrow range of data points, USDA
proposed setting the minimum biobased content based on the product with
a biobased content of 85 percent. Subtracting the three percentage
points to allow for testing variability results in a minimum biobased
content of 82 percent for this item. No public comments or additional
data were received to support changing the proposed level. As a result,
the proposed minimum biobased content of 82 percent was retained for
the final rule.
For the carpets designated item, USDA reviewed the biobased content
data (10, 10, 23, 24, 31, 35, and 37 percent) and found that the
biobased content of the products that have been tested increases as the
``weight'' of the carpet increases. In most of these products the
biobased material is used as the carpet backing and the thicker the
backing, the higher the biobased content. The product with 37 percent
biobased content also has a small amount of biobased material
incorporated into the carpet face. USDA considered the possibility of
creating subcategories within this item based on performance features
(such as durability) but does not have sufficient data to justify
subcategorization at this time. Because there are no significant breaks
in the range of data points and the overall range is small, USDA has
retained the proposed 7 percent minimum biobased content for this item.
USDA will continue to gather information on this item and will consider
creating subcategories in a future rulemaking.
Biobased Content Testing
Comment: One commenter recommended that the ASTM active standard
D6866-06 (standard test methods for determining the biobased content of
natural range materials using radiocarbon and isotope ratio mass
spectrometry analysis) replace the historical D6866-04.
Response: USDA agrees that the most recent and active ASTM standard
needs to be used. In order to minimize the need to update the
regulation, USDA has decided to simply refer to the base ASTM
designation (in this case, ASTM 6866) and drop the year designation (in
this case, the -04) and instead specify in the final rule that ``the
current version'' of ASTM D6866 be used for determining biobased
content.
[[Page 27962]]
Information on Designated Items
Comment: One commenter, noting that USDA stated that its attempts
to gather data were ``largely unsuccessful,'' urged USDA to re-examine
and improve upon its prior efforts to gather complete, technically
sound information on products within designated items and to use that
information to further refine the program in the future.
Response: USDA uses the phrase ``largely unsuccessful'' in the
context of its efforts to obtain information on the amount of products
within designated items that Federal agencies are using (for example,
see Section IV.A, Executive Order 12866 in this preamble) and not on
the information associated with the products within each item.
Information on the usage of products would assist USDA to make
estimates of the potential economic impact of the rule.
USDA has in place a procedure to gather technical information on
products within each item it proposed for designation. As USDA proposes
additional items for designation, it seeks to improve this process with
each successive rulemaking to ensure the information it has is
technically sound. One area in which USDA is using the improved
information is in the development of subcategories within items. There
will always be some uncertainty in the data obtained, but USDA will
continue to propose items for designation for preferred procurement
with the data it has in hand. USDA encourages the provision of
additional information on products within items prior to their being
designated for preferred procurement. The items being considered for
preferred procurement can be found on the BioPreferred Web site.
Comment: One commenter suggested that the data that form the basis
for USDA's decisions and their source be available to the public. The
commenter noted, as one example, that USDA intends to post public
comments on the ``positive environmental and human health attributes''
of products on its Web site, and make the comments available to Federal
procurement agencies to ``* * * assist them in making `best value'
purchasing decisions.''
Response: Since the first round of six items were designated for
preferred procurement, USDA has provided significantly more data on
each item being proposed for preferred procurement on the BioPreferred
Web site. At the BioPreferred Web site, technical information is
provided on products within the items. The BioPreferred Web site can be
accessed by the public at http://www.biopreferred.gov.
USDA is concerned that the commenter might believe that USDA is
using comments received on the ``positive'' attributes of biobased
products as a basis for designating an item for preferred procurement,
while ignoring potential ``negative'' attributes. This is not the case.
The availability of information on the environmental and health
attributes and life costs of items is part of the basis for proposing
an item for preferred procurement. USDA is using the BEES analysis,
which is ``neutral'' in regards to whether an environmental impact of a
biobased product is ``positive'' or ``negative,'' to provide some of
this information. Finally, the statute authorizing the preferred
procurement program for biobased products requires USDA to, in part,
provide information on ``environmental and health benefits'' of such
materials and items. Thus, USDA has a statutory obligation to make such
information on the positive environmental and human health attributes
available.
One way USDA is implementing this requirement is by posting public
comments on the positive environmental and human health attributes of
products on the BioPreferred Web site. Given the infancy of most
biobased product markets, this type of information is often not
generally known and providing access to such information, provided it
is documented, is important to the success of the BioPreferred Program.
If such information is anecdotal, it will be so indicated.
Comment: One commenter suggested that USDA take reasonable steps to
ensure that the information that is offered to government agencies and
that is provided on the government's Web site be objective and
accurate. The commenter states that, while USDA's preference for using
data and certifications that come from consensus standards
organizations is commendable, it does not alleviate this concern.
According to the commenter, there appears to be no current mechanism to
verify accuracy and that USDA's request ``When possible, please provide
appropriate documentation to support the environmental and human health
attributes you describe'' alone appears to be insufficient to ensure
fairness.
Response: USDA agrees with the commenter that the information made
available to government agencies concerning biobased products needs to
be objective and accurate. To address this situation, USDA is requiring
manufacturers to provide documentation for information that will be
posted directly on the BioPreferred Web site. If, in the opinion of
USDA, such claims cannot be sufficiently supported, they will not be
posted on the BioPreferred Web site. A manufacturer is still allowed to
post such ``undocumented'' claims on their own Web sites, as any other
manufacturer of any other product can do. USDA is not responsible for
the information posted on a manufacturer's Web site. Thus, information
obtained from the manufacturer's Web site needs to be considered in
this context. Because USDA makes this distinction in the information it
allows to be posted on the BioPreferred Web site, USDA disagrees with
the commenter that this mechanism results in ``unfair'' results.
The second step that USDA plans to implement to help ensure the
accuracy of the information posted on the BioPreferred Web site is an
audit program. Under this audit program, USDA will randomly select
products for sampling to ensure the accuracy of the information on
selected products. The size of the BioPreferred Program, however, makes
it difficult for USDA to reasonably verify every claim on every
product. Thus, USDA must rely on an audit program.
Lastly, USDA notes that, by requiring the biobased content on
products to be determined in an ISO-compliant facility, USDA is
reasonably ensuring the accuracy of the reported biobased content. In
conclusion, USDA believes the above steps meet the commenter's
concerns.
Biobased Polymers
Comment: One commenter requested that USDA evaluate and address the
effect that biobased polymers will have on current recycling streams
and markets. According to the commenter, to the best of their
knowledge, no technology exists to screen out biobased products during
the recycling process and the presence of a small fraction of biobased
polymers in the recycling stream may result in unintended consequences
to the recycling infrastructure.
Response: The purpose of the BioPreferred Program is to encourage
the purchase of biobased products, including products that are commonly
recycled. However, like the commenter, USDA is concerned that such
products are disposed of in an environmentally responsible manner. USDA
has consulted with EPA and with representatives of the Association of
Post-Consumer Plastic Recyclers
[[Page 27963]]
(APCPR) to discuss this issue. APCPR explained that their primary
concern with attempts to place PLA or other biobased plastics in
existing recycling streams related to the negative impacts that these
biobased plastics have on the recycling of PET. They pointed out that
over seven billion pounds of PET are used annually in the country and
that the recycling of PET has been adopted on a large-scale basis.
There are two primary concerns related to the introduction of biobased
plastics into the PET recycling stream. First, the presence of biobased
plastics even in very small amounts (less than 1 percent) causes the
resulting recycled plastic to lose the clarity which is demanded in the
largest market for these products (``soda'' and water bottles). Even a
slight haze in the final product is unacceptable to the bottling
industry. The second concern relates to the actual recycling
technology. PET is separated from HDPE and other petroleum-based
plastics by floatation. PET floats in water and the others do not. Most
biobased plastics also float, however, making the separation of PET
from biobased plastics using floatation technology impossible. Thus, if
there are biobased plastics in the recycling stream they remain with
the PET stream. Following separation, the PET is shredded and then
placed in dryers to remove the moisture. Because biobased plastics melt
at a temperature that is much lower than the melting temperature of
PET, the biobased plastics tend to melt in the PET dryers. Recyclers
have indicated that the presence of even 0.1 percent of biobased
plastics in the shredded stream can cause the dryers to ``gum up'' and
results in the rejection of the contaminated PET.
APCPR pointed out that an optical-type technology for separating
biobased plastics from PET is available, but that it is very expensive.
Because there is currently such a small amount of biobased plastics
available for recycling, there is no economic incentive for recyclers
to purchase the equipment necessary to separate it from PET. APCPR
further explained that for the recycling of biobased plastics to become
economically viable there needs to be both a readily available supply
of used material and a significant market for the recovered plastic,
neither of which exists today.
APCPR also pointed out that biobased polymers used for other
applications, such as ``clam shell'' containers and other therma-form
products, do not present a problem for the recycling of those products.
They also noted that composting in commercial composting operations is
a viable alternative to the recycling of biobased polymers. USDA
encourages procuring agents and those involved in recycling to provide
education material to potential purchasers and users on environmentally
preferred disposal of such products. The APCPR Web site (http://
www.plasticsrecycling.org) presents technical information on plastics
recycling and procuring agents are urged to visit the site for more
information. In addition, USDA will post relevant information in this
regard on the BioPreferred Web site to assist manufacturers,
purchasers, and users become aware of the potential impacts of biobased
plastics on recycling and on the preferred disposable methods for such
products.
Purchase of Biobased Products
Comment: One commenter urged USDA to clarify in the final rule that
it is not requiring procuring agencies to limit their choices to
biobased products that fall under the items for designation in this
proposed rule in order to avoid the unintended consequence of severely
limiting product selection and material selection options. The
commenter pointed out that a product should be reasonably available,
meet USDA's requirements for performance for the application intended,
and be available at a reasonable price.
Response: USDA agrees with the commenter that Federal agencies are
not limited to considering biobased products when making purchasing
decisions under the preferred procurement program for biobased
products. Even though biobased products are given preferred
procurement, purchasing agencies can buy other competing products when
biobased products are not readily available, are not available at a
reasonable cost, or do not meet Agency performance standards. USDA
believes that this is clearly stated for the current rulemaking and
will continue to make it clear in future rulemakings as well.
Item Specific Comments
2-Cycle Engine Oils
Comment: One commenter stated that the definition of 2-cycle engine
oil needed to be modified to make it clearer as to what products are
within the item designation.
Response: USDA appreciates the need expressed by the commenter to
have clearly defined items to identify which products are included in
the item. USDA has modified the definition slightly to be clearer that
products in this item are ``designed for use in 2-cycle engines'' and
that such products provide lubrication and/or other properties
beneficial to 2-cycle engines.
Comment: Two commenters stated that the list of performance
standards shown for 2-cycle engine oils were not the applicable
performance standards. The commenters referred to the standards set by
four standard-setting organizations--the National Marine Manufacturers
Association (NMMA), American Petroleum Institute (API), Japanese
Automobile Standards Organization (JASO), and International Standards
Organization (ISO). The commenters pointed out that the only relevant
standard for outboard motors is the one set by the NMMA. The commenters
felt that to continue to include 2-cycle engine oils that do not meet
or exceed standards set by these four organizations would result in
engine failure and a bad reputation for products within this item
designation. The commenters, therefore, recommended that only those 2-
cycle engine oils that meet one or more of the standards set by those
four organizations be included in the preferred procurement program.
One of the commenters further recommended that the level of
criteria be included so that purchasers can buy products according to
the level of performance needed.
Response: USDA thanks the commenters for the information concerning
the standards being set by the four organizations identified by the
commenters. USDA agrees that purchasers of 2-cycle engine oils need to
be aware of these standards when purchasing any 2-cycle engine oil,
including biobased 2-cycle engine oils. USDA believes the best way to
provide this information is to make it available on the BioPreferred
Web site. USDA disagrees that such standards need to be incorporated
into the rule for these products because to do so, in part, would place
restrictions on the manufacturers of biobased 2-cycle engine oils that
do not exist for manufacturers of non-biobased 2-cycle engine oils.
Although USDA believes that it would be beneficial to the manufacturer
of any product to be able to demonstrate that their products meet or
exceed applicable performance standards, USDA does not believe that it
should force biobased product manufacturers, by regulation, to test
against all applicable performance standards prior to marketing their
products. USDA believes this is unnecessary because purchasing agencies
should not buy biobased 2-cycle engine oils or, for that matter,
petroleum-based 2-cycle engine oils if
[[Page 27964]]
they do not meet the agency's specifications or performance standards.
Comment: Three commenters stated that the proposed minimum biobased
content of 7 percent for 2-cycle engine oils was too low. One of the
commenters recommended a minimum biobased content of 30 percent.
According to this commenter, there are a variety of 2-cycle engine oils
with renewable contents in the 30 to 50 percent range that meet the
applicable performance standards and that are commercially available
from different manufacturers.
The second commenter recommended that the minimum biobased content
for 2-cycle engine oils be at least 50 percent. This commenter
expressed concerned that at this low biobased content, 2-cycle engine
oils would not even pass the ASTM-D5864 Biodegradable Classification
and that European Union 2-cycle engine oils are at least biodegradable.
The third commenter suggested that, based on the data in the
background information, USDA recommend multiple content levels
reflecting differences in product use.
All three commenters expressed concern that petroleum companies
would add just enough biobased oils to their products to qualify for
preferred procurement. One of the commenters stated that this would
ruin biobased manufacturers in this particular market and another
stated that this would be contrary to the objectives of the Farm
Security and Rural Investment Act.
Response: As discussed earlier in this preamble, USDA re-evaluated
the proposed minimum biobased content for all of the proposed items.
Based on the re-evaluation of the biobased content data, the minimum
biobased content for 2-cycle engine oils has been set at 34 percent.
The biobased content for products that have been tested are: 37, 39,
60, 77, and 78 percent. At proposal, the minimum biobased content of 7
percent was based on a product that was described as being formulated
to meet specific Japanese performance standards for small engines.
Since proposal, this product has been withdrawn by its manufacturer and
is no longer available.
Because there is a significant break in the data between the 39
percent product and the 60 percent product, USDA considered the
possibility of establishing subcategories within this item. The two
products with 37 and 39 percent biobased content have shown that they
meet certain small engine performance specifications and
biodegradability standards, while such information is not available for
the products with the higher biobased contents. At this time, however,
USDA has not received sufficient information related to small engine
performance specifications to justify subcategorizing this item. USDA
will continue to collect performance information and will consider
subcategorizing this item through future rulemakings as additional
information is made available.
Based on the presently available information, USDA believes that
setting a minimum biobased content to allow procuring agencies to
select products at this lower biobased content level is desirable. USDA
will continue to gather additional information on the performance of
other products within this item. If verification is obtained that
products with significantly higher biobased contents can meet the
performance and biodegradability standards offered by the products with
lower biobased contents, USDA will also consider raising the minimum
biobased content for this item in a future rulemaking. As additional
information becomes available, USDA will also consider creating
subcategories within this item at a later date based on features such
as biodegradability.
Because biodegradability can be an important attribute for 2-cycle
engine oils used in marine environments, USDA continues to encourage
all manufacturers of 2-cycle engine oils, and other biobased products,
to provide as much information as possible concerning biodegradability
and other beneficial characteristics of their products. The ASTM method
mentioned by the one commenter (ASTM-5864) is a test method that can be
used to determine the level of biodegradability. The availability of
such information will assist procuring agencies in selecting biobased
products that meet particular needs, such as biodegradability.
Lip Care Products
Comment: One commenter pointed out that there is no standard for
lip care balm.
Response: USDA appreciates the commenter's review of, and comment
on, the proposed designated item. USDA agrees with the commenter that
no performance standards for lip balm have been identified. USDA points
out, however, that the lack of identified performance standards is not
relevant to the designation of an item for preferred procurement. In
order to designate items for preferred procurement, section 9002 of
FSRIA requires USDA to consider: (1) The availability of items; and (2)
the economic and technological feasibility of using the items,
including the life cycle costs of the items. If and when performance
standards and other relevant measures of performance are identified for
this item, USDA will provide such information on the BioPreferred Web
site.
Films (Formerly Biodegradable Films)
Comment: One commenter stated that the definition for biodegradable
films was vague and needed clarification. The commenter assumed that,
based on the proposed definition, the designated item includes non-
durable films intended to be used once before being discarded. The
commenter then asked: How will the ``durable films'' item to be
proposed at a later date be differentiated from this item? The
commenter recommended that this item be retitled ``disposable bags,
wrappings and liners.''
Response: USDA agrees with the commenter that the name for this
item should not refer to ``biodegradable'' films. USDA has renamed this
item as ``films'' and has an included a non-durable films subcategory
for the products that were in the ``biodegradable films'' item at
proposal. USDA also proposed, under a separate rulemaking, designating
an item named ``durable films'' and has now included under the new
``films'' item a subcategory for the products that were in that
proposed item. USDA has revised the definitions in the final rule for
the ``semi-durable films'' subcategory to make it clearer as to the
types of products it covers as opposed to those films that would be
covered by the ``non-durable films'' subcategory. For example, USDA has
revised the definition to clearly state that non-durable films are
intended for single use before being discarded, as suggested by the
commenter.
Comment: One commenter recommended that, based on the data in the
background information, the minimum biobased content for this item be
set based on the products with tested biobased contents of either 52 or
62 percent, rather than on the product with a tested biobased content
of 25 percent, which resulted in the proposed minimum biobased content
of 22 percent. The commenter then stated that USDA should obtain
information to justify the claim made in the preamble that Federal
agencies need products with a longer shelf-life, thereby supporting the
22 percent content recommendation.
Response: As discussed above, USDA has established two
subcategories for this item, one for semi-durable films and one for
non-durable films. For the semi-durable films subcategory, USDA has
biobased content data for 11 products (25, 48, 49, 52, 62, 62, 62, 62,
[[Page 27965]]
62, 62, and 64 percent biobased). Because there is a significant break
in the data between the 25 percent product and the 48 percent product,
USDA investigated the product information available for the 25 percent
product to determine if it offered characteristics not offered by the
other products. USDA found that there were no performance claims for
this product that distinguished it from the products with a higher
biobased content. The biobased content for the remaining products were
within a narrow range and no performance or applicability information
was available to further divide the products within the subcategory.
Therefore, the minimum biobased content has been set at 45 percent for
this subcategory, based on the product with the tested biobased content
of 48 percent.
For the non-durable films subcategory, the tested biobased contents
are: 88, 89, 90, 94, and 96 percent. The data points are within a
narrow range and no information was available to further divide the
products within the subcategory. USDA is, therefore setting the minimum
biobased content for non-durable films at 85 percent, based on the
product with a biobased content of 88 percent.
Stationary Equipment Hydraulic Fluids
Comment: One commenter requested that USDA designate as a
subcategory hydraulic oil used in mobile equipment for preferred
procurement.
Response: USDA has already designated mobile hydraulic fluids under
the first group of products designated for preferred procurement. The
commenter is referred to the March 16, 2006, Federal Register notice
(71 FR 13686). To help avoid such confusion, USDA will try in future
proposals to group similar items together within a rulemaking.
Comment: Two commenters stated that the definition of stationary
equipment hydraulic fluids was somewhat unclear and needed to be
modified. One of the commenters suggested the following definition:
Fluids used in stationary hydraulic equipment systems that have various
mechanical parts, such as cylinders, pumps, valves, pistons, and gears,
that are used for the transmission of power (and also for lubrication
and/or wear, rust, or oxidation protection).
Response: USDA appreciates the commenters' suggested revisions to
the proposed definition of this designated item and has incorporated
the suggestions into the definition in the final rule.
Comment: Two commenters addressed the proposed minimum biobased
content for stationary equipment hydraulic fluids. One commenter agreed
with the proposed minimum biobased content of 46 percent. The other
commenter felt that, based on the data in the background information,
the proposed content was too low and should be based on the product
with a tested biobased content of 64 percent. This commenter also
stated that, if the lower content levels reflect products used for
different applications than those with higher content levels, then USDA
should provide separate content recommendations.
Response: The 48 biobased content data points in this data set
range from 47 percent to 100 percent. USDA's re-evaluation of the
biobased content data for this item did not identify any significant
breaks in the range nor was there data available to support
subcategorization. Because of the very wide range of applications in
which these products are used, USDA was unable to identify discreet
subcategories without significant overlaps in the biobased contents
among the subcategories. USDA is setting the minimum biobased content
for this item at 44 percent, based on the product with a tested
biobased content of 47 percent, because the products at this end of the
range are believed to offer performance characteristics, such as the
ability to be used in low temperature applications, not offered by some
of the products with a higher biobased content. USDA will continue to
gather additional information for this item and will consider creating
subcategories based on product performance and/or applicability if
sufficient supporting documentation can be obtained.
Comment: One commenter stated that, as a practical matter, the
overlap with biobased hydraulic fluids and EPA-designated recovered
content lubricating oils is likely to be limited because most re-
refined oil is being used for motor/engine oil, not hydraulic fluids.
The commenter stated that DLA's re-refined oil program is focused on
motor/engine oil and not hydraulic fluids and that a check of the DLA
Web site does not indicate any standards for, or purchase contract for,
re-refined hydraulic fluid. Further, according to the commenter, most
of the re-refined oil vendors listed in EPA's CPG supplier database are
selling re-refined motor/engine oil, with only one or two companies on
the list appearing to sell re-refined hydraulic fluids. The commenter
believes that market factors are directing the current supply of re-
refined base oil stock into the engine oil segment, which probably
makes sense given the size of that market.
Based on these factors, the commenter believes that it is entirely
possible that Federal buyers may have a difficult time finding and,
with very limited choices, buying re-refined hydraulic fluids. The
commenter believes that buyers wanting to replace petroleum-based
hydraulic fluid products may find biobased hydraulic fluids more
available in the marketplace than re-refined hydraulics. The commenter
noted that, in situations where there are concerns for spills, readily
biodegradable biobased hydraulic oil would be a better choice based on
performance.
Finally, the commenter stated that if more re-refined base stock
oil becomes available in the market place, it is possible that
manufacturers of hydraulic fluids could use a combination of vegetable
oils and re-refined oil base stock to meet both biobased content and
CPG Guidelines.
Response: USDA believes that the commenter makes some very good and
valid observations concerning the potential for, or lack of, overlap
between biobased hydraulic fluids for stationary equipment and EPA-
designated recovered content re-refined lubricating oil. However, USDA
continues to believe there is a potential for overlap and that to
identify such potential is still worthwhile. Furthermore, USDA
appreciates the point raised by the commenter concerning the potential
preference to be shown to biobased hydraulic fluids over EPA-designated
recovered content products where biodegradability may be an issue in
the use of the fluid. In such instances, the biobased fluid may be able
to meet the need to be biodegradable while the non-biobased fluid
cannot.
Disposable Cutlery (Formerly Biodegradable Cutlery)
Comment: One commenter asked why this biobased item was also
``biodegradable.'' Another commenter pointed out that the other
``biodegradable'' items referenced ASTM D6400 in their definitions and
asked whether cutlery should also reference ASTM D6400 instead of ASTM
D5338.
Response: The products covered by this item were intended to be
disposable cutlery, with preferred procurement to be given to biobased
disposable cutlery. Further, it was USDA's intent that preferred
procurement is given to biobased disposable cutlery that is also
biodegradable. As discussed earlier in this preamble, where
disposability considerations are equally important as
[[Page 27966]]
performance characteristics, USDA plans on requiring biodegradability
for products within the designated item if there are established
biodegradability standards. Some of the manufacturers of products
within this item claim biodegradability as a feature of their products.
However, USDA has not been successful in obtaining sufficient evidence
that these products provide acceptable levels of performance. Thus,
USDA does not believe that, at this time, biodegradability should be a
requirement that products in this item must meet to qualify for
preferred procurement. However, USDA will continue to investigate the
performance of biodegradable disposable cutlery and, if sufficient
evidence of acceptable performance is obtained, USDA will amend the
designation of disposable cutlery to add biodegradability as a
requirement for this item. USDA also continues to urge procuring
agencies to consider biodegradability as a desirable feature of
products within this item and to purchase biodegradable biobased
disposable cutlery to the extent that these products meet their
performance needs.
USDA agrees with the commenter that ASTM D6400 should be the
primary test method for demonstrating the biodegradability of biobased
cutlery. However, there may be other biobased formulations for which
ASTM D6400 would not be the appropriate test method for demonstrating
biodegradability. For example, if the cutlery is to be disposed of in a
marine environment, the appropriate test method would be ASTM D7081.
Thus, while biodegradability is not a requirement for products within
this item, manufacturers wishing to demonstrate biodegradability are
encouraged to use the most appropriate ASTM test methods.
Lastly, USDA notes that disposable cutlery needs to be composted
rather than landfilled in order for the cutlery to biodegrade and that
they need to be composted in commercial composting facilities in order
to be exposed to the proper temperature and moisture requirements for
composting. Composting these products in a ``backyard'' compost pile
will not necessarily result in the complete biodegradation of the
product.
Comment: One commenter stated that the information provided in the
Performance Standards document does not indicate whether biodegradable
cutlery will perform when used for eating. A second commenter noted
that biobased cutlery, if purchased, may not initially replace the
combat-tested utensil, heavy duty, long handled spoon in the Meal,
Ready-To-Eat without extensive DoD review, testing, field test and
approval from U.S. Army Natick, ACES, Surgeon General and the Military
Services. The second commenter also noted that applying the procurement
preference rule to this combat-related product would not result in the
multiplied effect across the economy that they would expect in the
cutlery similar to that used in restaurants across the nation.
Response: USDA agrees with the points made by the commenters. USDA
was unable to identify any performance standards relevant to disposable
cutlery and encourages the development of such to assist in the
evaluation of such products. Without such standards as a guide, the
performance of biobased cutlery may be unknown in any one situation.
USDA does know through real-world experience that the performance of
biobased cutlery will vary depending on its formulation and on the
particular environment in which it is used.
With regard to the second commenter, USDA notes that, for the
reasons provided earlier in this preamble, the final rule does not
require preferred procurement for disposable cutlery purchased for use
in combat or combat-related missions. If and when biobased cutlery is
demonstrated to meet all of the performance requirements of DoD in
tactical situations, USDA reserves the right to withdraw such
exemptions for disposable cutlery. Should that situation occur, USDA
appreciates the fact that purchase of biobased cutlery may be more
limited for combat-related purchases than for general restaurant
purchases, but the statute for this program is aimed at Federal agency
purchases and not for private enterprise purchases.
Comment: Two commenters recommended that USDA set the minimum
biobased content near 100 percent given the availability of products in
this item containing 100 percent biobased content. One of the
commenters stated that 33 percent is too low. A third commenter
expressed concern with the direction of the biobased content for
cutlery based on their experience. The commenter stated that they are
likely to start procuring 50 percent biobased cutlery even though a
superior 100 percent biobased utensil already exists. This commenter
asked ``What are practical ways the Federal Government can find and
place incentives in its policies for contractors to develop biobased
products with the greatest degree (high percent) of biobased content,
and measure its success in this regard?''
Response: USDA appreciates the fact that some biobased cutlery can
be made with nearly 100 percent biobased content, such as in the
production of spoons based on PLA. However, the performance variability
of currently available biobased cutlery under different food
environments (for example, hot soups and drinks) is well known and this
variability is associated directly with biobased content. Purchasers of
biobased cutlery need to take into account such performance aspects,
even if they occur in a trial-and-error mode as there are no
performance standards established for this item. To account for these
different applications, a wider range of biobased content cutlery
should be made available. USDA currently has biobased content test data
on six samples of products within this item (36, 49, 51, 73, 97, and
100 percent). As discussed earlier, USDA has re-evaluated the biobased
content data and the proposed minimum biobased contents for all of the
proposed items. In reviewing the data for this item, USDA found that
the product with the 49 percent biobased content is currently being
reformulated by its manufacturer and, thus, it will not be considered
in setting the minimum biobased content. Within the remaining data,
there are breaks in the data between the 36 and 51 percent products,
the 51 and 73 percent products, and the 73 and 97 percent products.
USDA did not have sufficient data on the performance of products within
these groups to justify creating subcategories. However, USDA is aware
that there does appear to be a correlation between biobased content and
performance with high temperature food and beverages. That is, the
higher biobased content products do not generally perform as well in
high temperature applications. As a result, USDA is setting the minimum
biobased content for this item at 48 percent, based on the product with
a tested biobased content of 51 percent. USDA believes that setting the
minimum biobased content at this level will allow products with
acceptable high temperature performance characteristics to receive the
procurement preference.
As more information is developed on the biobased content of
products within this item and on the associated performance of those
products, USDA will revisit this item to determine if the minimum
biobased content needs to be revised or if it is appropriate to develop
subcategories. USDA will also continue to investigate the performance
of biodegradable disposable cutlery and, if sufficient evidence of
acceptable
[[Page 27967]]
performance is obtained, USDA will amend the designation of disposable
cutlery to add biodegradability as a requirement for this item.
Glass Cleaners
Comment: One commenter stated that they were concerned that USDA's
collection methods were deficient because so few products formed the
basis of the proposed rule. The commenter referred to a California Air
Resources Board (CARB) survey, which identified 127 aerosol glass
cleaners sold in the state of California alone. The commenter,
therefore, recommended that USDA conduct a very thorough evaluation of
glass cleaners. The commenter also stated that the BEES and biobased
contents obtained may not be representative of all products on the
market, representing instead only a small subset of products. The
commenter recommended that the rulemaking demonstrate that the products
evaluated are representative of the market and appear to have been
overlooked in USDA's initial investigation.
Response: USDA appreciates the information concerning the CARB
study, which covered both biobased and non-biobased products. Because
one of the purposes of the BioPreferred Program is to identify biobased
products for potential preferred procurement, USDA's product
investigation efforts did not seek out non-biobased products. USDA
identified, at proposal, 16 manufacturers of biobased products within
this item, with 19 biobased products being marketed.
While USDA has in place a rigorous procedure for identifying
products that are biobased, USDA recognizes that its procedure will not
uncover all possible biobased products. Based on available data, USDA
cannot determine if the samples that were voluntarily submitted by
manufacturers are representative of all biobased products within this
item. Regardless, USDA believes that it is reasonable to set minimum
biobased contents based on the information it does have. If the
commenter or others have additional information on the biobased content
of other biobased products within this item, USDA encourages the
commenter and others to submit that information to USDA. USDA will
evaluate the additional information in relationship to the minimum
biobased content for this designated item.
For this and all other items, USDA welcomes assistance in
identifying manufacturers and their biobased products for the
BioPreferred Program. A list of such items can be found on the
BioPreferred Web site.
Comment: One commenter stated that some of the products
investigated under glass cleaners do not seem to fit the proposed
definition. For example, one product description states: ``* * *
(product) is for use on bathroom mirrors, goggles, or any lens surface
where confined areas tend to mist or fog. Forms an invisible shield, or
film, that keeps mirrors, car windows, glass, goggles, lenses and
plastic, free from mist, steam, or fogging.'' The commenter, therefore,
recommended that the category be clearly defined and restricted to
glass cleaners only. The commenter also recommended that the definition
be refined based on their input.
Response: USDA has re-examined the products identified under the
glass cleaner item designation. The product identified by the commenter
also performs a glass cleaning function. Thus, USDA believes that it is
reasonable to retain this particular product as a product under this
item. However, USDA agrees in principle with the commenter that the
information provided on products under each item should be only for
products that are within the definition of the item designated for
preferred procurement. Therefore, USDA will review products within all
items designated to make sure this occurs. Because the product
questioned by the commenter still falls within the intended group of
products defined by this item, USDA has determined that it is
unnecessary to redefine the item in the final rule.
Comment: One commenter recommended that the standard for
performance should not be restricted to the U.S. Navy NASEA
6840 and Green Seal (GS) GS-37 methods, but must include other methods
such as the EPA Design for the Environment performance standards, or
other science-based performance criteria. The commenter then stated
that all test methods should be thoroughly researched and evaluated
and, if relevant, included in the proposed rule.
Response: USDA points out that the performance standards and test
methods that are reported in the preamble are neither requirements nor
the entire universe of relevant and applicable performance standards
for glass cleaners. The reported performance standards and test methods
are those that have been used and reported by manufacturers of biobased
glass cleaners. While it is not necessary to identify all test methods
and performance standards that are applicable to an item in order to
designate that item for preferred procurement, USDA encourages the
provision of additional information on other relevant and appropriate
test methods and performance standards for glass cleaners and will post
relevant information on the BioPreferred Web site.
With regard to the comment on the Design for the Environment (DfE),
the DfE Formulator program is not a standard per se, but an industry
partnership program designed to help manufacturers design products with
better environmental profiles. The DfE program provides recognition to
participating companies and products that have ``passed'' the DfE
criteria. The DfE review process focuses primarily on health and
environmental criteria, and has reviewed both glass cleaners and carpet
cleaners, two items within this rulemaking. The DfE program does
include relevant performance standards, such as ASTM and CSMA
standards, for cleaning products. Relevant industry standards for
cleaners identified through DfE include: SSPA Method DCC09 for
cleaning, streaking, and smearing for glass cleaners; ASTM D488 for
soil removal on relevant substrates for general purpose cleaners; CSMA
DCC-03 and AATCC test method 171-1995 for carpet cleaners; and ASTM
D5345 for soil removing for washroom cleaners. For more information on
the DfE program, visit http://epa.gov/dfe/pubs/projects/formulat/
formpart.htm. Appendix A of the document Technical Support for Final
Rule--Round 3 Designated Items, which can be accessed on the
BioPreferred Web Site, contains a draft document of the DfE Formulator
Program.
Comment: One commenter stated that the minimum biobased content for
glass cleaners, based on the data in the background information, should
be 52 percent, not the proposed 23 percent. The commenter also stated
that if USDA decides to retain the 23 percent level, that this level
appears to be erroneous and should be 26 percent because the data in
the background information shows products with biobased contents
ranging from 29 to 100 percent. Therefore, the content level should be
26 percent, not 23 percent.
Response: At proposal, USDA had biobased content test data on four
glass cleaners. The biobased contents were 29, 52, 67, and 100 percent.
As pointed out by the commenter, the range of reported biobased
contents for tested products is 29 to 100 percent and, using the
rationale presented at proposal, the minimum biobased content should
have been set at 26 percent. At one point during the evaluation of this
item USDA
[[Page 27968]]
had information on a product with a tested biobased content of 26
percent. However, this product was withdrawn from consideration. USDA
inadvertently failed to revise the minimum biobased content for this
item when that product was withdrawn.
USDA has reevaluated the proposed minimum biobased content based on
the additional data and on public comments. At this time, USDA has
biobased content data for 12 tested products (5, 16, 26, 27, 29, 52,
61, 67, 76, 81, 98, and 100 percent biobased content) within this item.
There is a significant break in the range of data points between the 29
percent and the 52 percent products. USDA considered whether the
products with biobased contents below this break and those above it
could be included in two separate subcategories. USDA found that there
was not sufficient information on product performance or applicability
to justify creating subcategories. As a result the minimum biobased
content for this item has been set at 49 percent based on the product
with a tested biobased content of 52 percent. As more information is
developed on the biobased content of products within this item and on
the associated performance of those products, USDA will revisit this
item to determine if the minimum biobased content needs to be revised
or if it is appropriate to develop subcategories.
Greases
Comment: One commenter stated that the definitions of greases,
multipurpose grease, rail track greases, and greases not elsewhere
specified need to be modified to make them better understood. Another
commenter pointed out that the definition of greases was ``fine as far
as it goes,'' but pointed out that there are greases that are thickened
with polymers and other forms of solids. The commenter pointed to a
class of grease thickened with Polyurea (this type of grease is found
in the drive axles on front wheel drive cars) and noted that this was a
very large market.
Response: USDA agrees that the various other compounds cited by the
one commenter can be constituents in the formulation of a biobased
grease. While the definition proposed for ``greases'' did not preclude
these other substances, USDA has modified the definition slightly to
accommodate the commenter's suggestion.
With regard to the definitions of multipurpose grease and rail
track grease, USDA continues to believe that the proposed definitions
are sufficient to define the types of greases that are covered by the
two items. Therefore, USDA did not make any changes to these two
definitions.
With regard to greases not elsewhere specified, USDA has also not
changed the definition from what was proposed. Products that fall
within this category are greases that cannot be classified under any of
the other four subcategory definitions. USDA believes that the proposed
definition is clear on this. As additional information becomes
available on other types of greases, USDA will consider additional
subcategories, thereby reducing the number of grease products that
would fall into the ``greases not elsewhere specified'' subcategory by
default (see the following comment and response).
Comment: One commenter recommended that USDA add additional
subcategories for: (1) Heavy duty grease with EP (Extreme performance)
additives for the very heavy loaded joints often found in heavy duty
earthmoving equipment, (2) water resistant grease, and (3) greases for
very high and very low temperatures. The commenter recognized that
these subcategories would need to be investigated before minimum
biobased contents could be established, but encouraged USDA to
establish the subcategories because the need for these types of greases
exist.
Response: USDA appreciates the commenter's suggestion for
additional grease subcategories and will seek to collect information on
these suggested subcategories for potential future designation. In the
meantime, USDA notes that such greases would qualify for preferred
procurement under the ``Greases not elsewhere specified'' subcategory
if they meet the minimum biobased content of 75 percent set for the
``greases not elsewhere specified'' subcategory.
Comment: Two commenters submitted comments on the proposed minimum
biobased content for greases. One commenter supported the provision of
multiple biobased contents depending on the use of a grease product,
but felt that, based on the information in the background document, it
is not possible to determine whether some of the recommended content
levels should be higher. Therefore, the commenter requested that USDA
re-characterize the background data by use (e.g., food grade,
multipurpose, rail track, etc.).
In addition, the commenter requested that for greases that will be
exposed directly to the environment, such as rail track greases, USDA
conduct further research and determine whether a higher biobased
content level and a biodegradability requirement are appropriate in
order to minimize adverse impacts on the environment.
The second commenter felt that most of the proposed minimum
biobased contents were too high and that one was too low. The commenter
recommended the following minimum biobased contents:
Food grade grease: 40 percent (vs. proposed 42 percent);
Multipurpose grease: 40 percent (vs. proposed 73 percent);
Rail track grease: 50 percent at least (vs. proposed 30 percent);
Truck grease: 50 percent (vs. proposed 72 percent); and
Greases not elsewhere specified: 50 percent (vs. proposed 75
percent).
This commenter also stated that, for four of the greases (i.e.,
multipurpose, food grade, truck, and greases not elsewhere specified),
they would not be able to get the proper additives to make a high
performance multipurpose or food grade grease or certain of their other
greases because the required additives and thickeners are not biobased
at this time.
Response: USDA agrees that the information in the background
documentation could have made clearer which grease products were
included in which grease subcategory. USDA has reorganized the
background information to make this clear. Additional details on the
subcategorization and the biobased contents for products within this
item can be found in Chapter 2.0 of the document ``Technical Support
for Final Rule--Round 3 Designated Items,'' which is available on the
BioPreferred Web site.
USDA has re-evaluated the minimum biobased contents for each of the
subcategories in this item. For the food grade greases subcategory only
three data points are available (45, 62, and 95) and no further
subcategorization can be supported by the data. Thus, the minimum
biobased content remains at 42 percent, as proposed. For the multi-
purpose greases subcategory, the tested biobased contents are all
within a narrow range (75, 76, 76, and 76 percent). The minimum
biobased content is set at 72 percent based on the product with the 75
percent biobased content, which is a new test data point received after
proposal. For the truck greases subcategory, the tested biobased
contents are also within a narrow range (74, 75, 77, and 77 percent).
The minimum biobased content is set at 71 percent based on the product
with the 74 percent biobased content, which is a new test data point
received after proposal. For the greases not elsewhere specified
subcategory, the tested biobased contents are somewhat more
[[Page 27969]]
widely spread than the previous subcategories but are still within a
reasonably close range (78, 87, 95, and 96 percent). USDA found no
justification in the data to support further subdividing this
subcategory and the minimum biobased content remains at the proposed
level of 75 percent.
For rail track greases, the tested biobased contents are 33, 33,
39, 51, 66, and 66 percent and USDA has identified only two
manufacturers of rail track greases. One manufacturer produces two rail
track greases for use in cold temperature (both at 33 percent biobased
content), two multi-season/all season rail track greases (39 percent
and 51 percent biobased content), and one summer rail track grease (66
percent biobased content). The other manufacturer produces a rail track
grease that can be used under a wide range of temperatures.
USDA believes that with sufficient information it would make sense
to subdivide rail track greases. Based on the current information, USDA
could subdivide rail track greases into three subcategories--winter/
arctic greases, all season greases, and summer greases. If this were
done, the minimum biobased contents would be, respectively, 30, 36, and
63 percent. Because only one manufacturer has been identified to date
for two of these three potential subcategories, USDA would defer the
effective preferred procurement dates for two of the three
subcategories (i.e., for winter rail track greases and summer rail
track greases).
USDA does not believe that the above option is in the best interest
of the BioPreferred Program at this time. Instead, USDA believes that
the preferred procurement program under the BioPreferred Program is
better served at this time by not subcategorizing rail track greases.
By establishing a minimum biobased content at 30 percent (as proposed),
all rail track greases would be available for preferred procurement
(i.e., there would be no deferred effective dates for preferred
procurement). This option allows the purchasing agency at least two
manufacturers from which to select their product to meet their needs.
If a purchasing agency needs a ``summer'' rail track grease, the
purchasing agency would not select a winter or arctic rail track
grease, but instead would have the option of selecting one of the ``all
season'' rail track greases or a summer grease. Similarly, if a
purchasing agency needs a ``winter'' rail track grease, it would have
the option of selecting one of the winter rail track greases or one of
the ``all season'' rail track greases. Thus, USDA is setting the
minimum biobased content for rail track greases at 30 percent, as was
proposed. As additional information is obtained on more biobased rail
track grease products, USDA will re-evaluate this subcategory with
regard to further subcategorization and the minimum biobased content.
Lastly, one of the commenters requested that USDA consider whether
biodegradability should be included as a requirement for greases, in
particularly for rail track greases. USDA agrees with the commenter
that the level of biodegradability should be considered when purchasing
greases or other products that may be released into the environment
during their use or disposal. As discussed earlier in this preamble,
USDA is requiring biodegradability as a prerequisite for some
designated items when concern about the disposal of the items is a key
criterion. USDA believes, however, that performance is the key factor
in a purchaser's decision as to which product within this designated
item to purchase. In the case of items where USDA judges performance to
be the key decision-making factor for purchasers, USDA will not require
biodegradability as a prerequisite for participation in the preferred
procurement program. Therefore, USDA is not requiring biodegradability
as a requirement for greases.
Dust Suppressants
Comment: One commenter stated that the OSHA Hazard Communication
Standard for dust suppressants does not convey whether the product
does, in fact, suppress dust.
Response: USDA agrees with the commenter. This OSHA standard, which
was cited in the background document for one of the manufacturer's
products, is designed to ensure that information about health and
physical hazards of chemicals and associated protective measures is
disseminated to people in the workplace, and does not address
performance standards for these products. Therefore, when evaluating
the performance of dust suppressants, this particular standard is not
relevant.
Although USDA received no public comments related to the proposed
minimum biobased content for dust suppressants, the proposed value was
re-evaluated as part of USDA's review of all biobased content data. For
this item, five biobased content tests were available (69, 88, 89, 98,
and 100 percent). Because there is a significant break in the data
between the 69 percent product and the 88 percent product, USDA
reviewed the product performance information to determine if there was
sufficient justification for creating subcategories or for setting the
minimum biobased content based on the one product with a biobased
content below 88 percent. No unique performance characteristics or
applications were identified that would justify either
subcategorization or setting the minimum biobased content based on the
69 percent product. Therefore, the minimum biobased content for this
item is set at 85 percent, based on the product with the 88 percent
tested biobased content.
Carpets
Comment: One commenter proposed the following definition for carpet
to better reflect the various ways carpets are made: Floor coverings
composed of woven, tufted, or knitted fiber and a backing system.
Response: USDA agrees with the commenter and has revised the
definition accordingly in the final rule.
Comment: One commenter asked if any of the tested carpet samples
had biobased content in the face. The commenter pointed out that a
carpet manufactured by Interface had 15 percent biobased content in its
face.
Response: One of the carpet samples evaluated by USDA did have
biobased material in the carpet face. The biobased content of this
sample was 37 percent.
Comment: Four commenters suggested that USDA set minimum biobased
content requirements separately for backing and face used in carpets. A
fifth commenter suggested that for now USDA proceed as proposed, but
that USDA continue to collect additional biobased content data on
carpet backing and carpet face fiber as these products become
available, because carpet fiber and carpet backing can come from very
different biobased material sources and it may make sense in the future
to treat them separately.
One commenter suggested setting separate minimum biobased content
requirements for backing and face because the technology to produce
biobased backings is considerably advanced over that of face fiber. In
situations where a Federal buyer may be able to use a natural fiber
faced carpet product, the commenter recommended that this be encouraged
separately.
One of the other commenters suggested that USDA create three
subcategories as follows:
Fiber face (broadloom)--materials that are used to make the face of
carpet produced in widths generally wider than six feet.
Fiber face (modular)--materials that are used to make the face of
carpet produced in squares generally varying
[[Page 27970]]
in measurements from 18 inches to 36 inches.
Backing Systems--includes primary, secondary and attached cushion.
According to this commenter, such an approach would be compatible
with the way Federal agencies make carpet purchasing decisions; that
is, in selecting carpets, agencies have to decide if they want
broadloom or carpet tile, and then what type of face fiber (e.g.,
polyester, nylon, wool), type of pile (e.g., cut, loop), the weight of
the face, the color and pattern, and the backing systems. All of these
aspects of a carpet have to fit together to achieve the performance
that the purchaser needs. Further, because buyers assemble a set of
specifications when they purchase carpet, having subcategories of
designated biobased item for carpet would better inform potential
buyers about the availability of biobased content in various parts of
the carpet construction and in various carpet types (e.g., broadloom
and tiles).
Response: USDA has not changed the definition of the designated
item for the final rule. USDA acknowledges that the commenters have
provided valid reasons why subcategorization of this designated item
may be appropriate at some point. However, given the current state of
development of biobased products within this designated item, USDA does
not believe that sufficient data are available to support such a
subcategorization. USDA will continue to gather and review information
that could be used to support subcategorization of this designated item
and the establishment of different minimum biobased content
requirements in the future.
Comment: One commenter felt that the proposed minimum biobased
content (7 percent) was reasonable at this time, while two commenters
recommend that the minimum biobased content for carpets be raised. One
commenter stated that setting the initial minimum biobased content
based on the lower end of the samples tested to date will provide more
potential products and will encourage more widespread use of biobased
products. The commenter pointed out that carpet containing biobased
material is still very much in a development stage and the proposed
level should help stimulate more development of biobased carpets.
The two other commenters recommended raising the minimum biobased
content to a minimum of 50 percent. These commenters felt that such a
minimum level was necessary for many of the proposed items in order to
further the goal of the program.
Response: USDA reviewed the biobased content data for carpets (10,
10, 23, 24, 31, 35, and 37 percent) and found that the biobased content
of the products that have been tested increases as the ``weight'' of
the carpet increases. In most of these products the biobased material
is used as the carpet backing and the thicker the backing, the higher
the biobased content. The product with 37 percent biobased content also
has a small amount of biobased material incorporated into the carpet
face. USDA considered the possibility of creating subcategories within
this item based on performance features (such as durability) but does
not have sufficient data to justify subcategorization at this time.
Because there are no significant breaks in the range of data points and
the overall range is small, USDA has retained the proposed 7 percent
minimum biobased content for this item. USDA will continue to gather
information on this item and will consider creating subcategories in a
future rulemaking.
Comment: One commenter stated that the Standard Title column in the
Performance Standards document for carpeting does not address how well
the carpet will wear. Another commenter stated that NSF International's
Sustainable Carpet Assessment Draft Standard (Draft Standard NSF 140-
2005) should be mentioned. The commenter pointed out that this has been
published as a draft ANSI standard, and products can be certified to
the draft standard. The commenter also pointed out that the state of
California has adopted the gold and platinum levels of certification
under this standard as their state purchasing specification.
Response: USDA has not identified applicable performance standards
for carpet wear. However, ASTM D3181 has been identified as a test
method that can be used to measure carpet wear. While this method does
not specify an ``acceptable'' level of performance, it does define a
standardized test procedure that can be used to develop carpet wear
data that can then be used to compare expected wear between different
carpet samples. USDA will add information on both the ASTM D3181 test
method and the NSF International's Sustainable Carpet Assessment Draft
Standard (Draft Standard NSF 140-2005) to the information available on
the BioPreferred Web site for this designated item.
Comment: Three commenters urged USDA to have biobased procurement
preference take priority over recycled content preference for carpets
where carpet backing is made from recycled polyvinyl chloride (PVC).
One of the commenters made this request because, according to the
commenter, PVC has serious health impacts throughout its life cycle--
notably the production of dioxin in manufacture and disposal and
release of phthalates. This commenter pointed out that (1) dioxin
reduction is a goal that the U.S. government has committed to through
its signing of the Stockholm Treaty on Persistent Organic Pollutants
and (2) neither issue is captured and compared by BEES analyses.
The other two commenters similarly stated that the production of
PVC has serious environmental health impacts that are not captured in
the BEES analysis (such as dioxin production, reproductive toxicity,
and neurotoxicity). The commenters stated that this is one clear case
where biobased materials are preferable to recycled content.
A fourth commenter noted that the CPG Guidelines for carpet
currently apply only to: (1) Carpet with a polyester face, and (2)
separate detached ``cushion'' placed under the carpet during
installation. Therefore, according to the commenter, there currently
would not be an overlap between CPG guidelines for polyester face and
detached cushion and biobased content in carpet backing systems
(including attached cushion). The commenter also made numerous other
points, presented in the remainder of this paragraph, concerning the
relationship between the CPG program and the preferred procurement
program under the BioPreferred Program. The commenter stated that EPA's
proposed CPG guidelines for nylon carpet face and backing with a
recovered vinyl material content would not overlap or conflict with
biobased content in a carpet's polyurethane backing system (including
attached cushion). Furthermore, EPA Guidelines would not require a
buyer to purchase a carpet with a vinyl backing just because it is a
CPG item. EPA has stated that a CPG recommendation does not preclude a
procuring agency from purchasing carpet made of other materials (e.g.,
polyurethane backing system versus vinyl backing). For performance
reasons, a Federal buyer may specify a polyurethane backing system
because it has a number of performance advantages. For polyurethane
laminate, these include preventing delamination and increasing product
life, lower VOC levels, being compatible with low VOC adhesives used in
installation, and creating a function liquid barrier for ease of
cleaning (including the possibility of wick-back staining and adverse
[[Page 27971]]
moisture effects). Attached polyurethane cushion offers the additional
benefits of lessening standing and walking fatigue by reducing heel
strike and leg muscle response, reducing excess workplace sounds,
resisting crushing and extending carpet life, and increasing thermal
insulation. Furthermore, there are polyurethane backing systems
commercially available that contain both biobased and recycled/
recovered material. In addition, it would be possible to make a carpet
that had a face with recycled/recovered fiber content and a backing
system with biobased content.
Finally, a fifth commenter stated that EPA proposed a designation
for nylon carpet, is working on finalizing that designation, and
requested that USDA check on the status of EPA's final rule for nylon
carpet and adjust the above preamble and regulation language for the
final rule accordingly.
Response: USDA does not have the statutory authority to require
that a preference be given to a biobased product over a competing
recycled content product. However, USDA agrees that there are cases
where the manufacture, use, and disposal of biobased products results
in an overall benefit to the environment when compared to recycled
content products. In the information that USDA has provided in the
preamble to the proposed rule (71 FR 47591), we point out that Federal
agencies may ask manufacturers for information on a product's
environmental and human health measures as determined by the BEES
analysis. They can then use this information to make a more informed
decision on which product meets their goals and needs. In sum, USDA
encourages Federal agencies to consider the overall environmental and
human health impacts when evaluating the performance of recycled
content products and biobased products.
USDA also points out that there may be cases where the specific
features of the two products eliminates the ``appearance'' of an
overlap between biobased and recycled content products. As one
commenter notes, the CPG guidelines for recycled content carpet apply
to carpet with a polyester face and a separate detached cushion. The
biobased carpets upon which USDA designation of the item is based
primarily used the biobased material in the carpet backing. Also, as
the commenter points out, there may be important performance
considerations in choosing a carpet ``system.'' Thus, even though there
may be the appearance of an overlap between the two preference
programs, Federal agencies may not find a conflict once all of their
performance criteria have been considered.
Prior to publishing this notice, USDA checked the status of the
EPA's proposed designation of nylon carpet for the CPG program. As of
the date of publication of this notice, EPA had not finalized the
designation of nylon carpet.
Carpet and Upholstery Cleaners
Comment: One commenter stated that the proposed minimum biobased
content of 34 percent for carpet upholstery cleaners is low and
suggested that the word ``biobased'' implies a minimum biobased content
of 51 percent.
Response: Where there is no other information available, USDA
believes that it is not unreasonable to consider products as
``biobased'' if they are composed predominantly of biobased materials;
that is, at least 50 percent of the product is biobased. However, for
some products a 50 or 51 percent minimum biobased content may result in
a product that is not viable. Furthermore, a 50 or 51 percent minimum
biobased content could discourage the development of new biobased
products or the continued development of existing biobased products.
During the investigation of potential items for designation, USDA
has identified many items where biobased product development has not
reached the point where these products can be manufactured successfully
with a biobased content of greater than 50 percent. USDA believes that
the designation of items where biobased products exist, even at the
lower levels such as in the carpet and upholstery cleaners item, will
not only create a demand for the existing products but will encourage
the development of additional products with higher biobased contents.
USDA has re-evaluated the products within this item and has decided
that the creation of two subcategories within this item is justified.
Three of the 12 products for which USDA has information are described
and marketed as ``spot'' or ``stain'' removers and the other nine
products are marketed simply as carpet and upholstery cleaners, or
general purpose cleaners. The tested biobased contents of the spot
removers are 10, 15, and 19 percent. USDA has set the minimum biobased
content for the spot removers subcategory at 7 percent, based on the
product with a tested biobased content of 10 percent, because the range
of the data points is so narrow.
For the general purpose cleaners subcategory, the tested biobased
contents are 37, 54, 57, 66, 67, 79, 80, 82, and 98 percent. USDA
reviewed the product information to determine whether specific
performance or applicability features were claimed by any of the
products. The two products with 57 and 66 percent biobased content were
found to be formulated without any volatile organic compounds (VOC),
while many of the other products were not. Because the absence of VOC
is considered to be a desirable feature, and because no other
significant performance features were found, USDA decided to set the
minimum biobased content at a level that these two products would meet.
Therefore, USDA has set the minimum biobased content at 54 percent
based on the product with a tested biobased content of 57 percent. As
new products are developed and as existing products are reformulated
with higher biobased contents, USDA will continue to gather and review
data and assess the possibility of raising the minimum biobased content
for these subcategories.
Comment: One commenter noted that the Green Seal standard for
industrial and institutional cleaners (GS 37) includes carpet cleaners
and should be mentioned.
Response: USDA appreciates the information provided by the
commenter and will add the information on GS 37 to the list of
applicable test methods and performance standards found on the
BioPreferred Web site for this item.
Comment: One commenter provided information on health and
environmental aspects of carpet cleaning in response to USDA's request
for such information on any of the proposed designated items. Most of
the information provided by the commenter dealt with water versus dry
cleaning methods.
Response: USDA appreciates the information provided by the
commenter and will review it for potential addition to the technical
information on carpet and upholstery cleaners on the BioPreferred Web
site.
V. Regulatory Information
A. Executive Order 12866: Regulatory Planning and Review
This action has been determined significant for purposes of
Executive Order 12866 and, therefore, has been reviewed by the Office
of Management and Budget. We are not able to quantify the annual
economic effect associated with this final rule. As discussed in the
proposed rule, USDA made extensive efforts to obtain information on the
[[Page 27972]]
Federal agencies' usage within the ten designated items, including
their subcategories. These efforts were largely unsuccessful. Therefore
attempts to quantify the economic impact of this 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 designated items if costs are
``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 this rulemaking. This assessment was based primarily on the
offsetting nature of the program (an increase in biobased products
purchased with a corresponding decrease in petroleum products
purchased). Consideration was also given to the fact that agencies may
choose not to procure designated items due to unreasonable costs.
1. Summary of Impacts
This rulemaking is expected to have both positive and negative
impacts to individual businesses, including small businesses. USDA
anticipates that the biobased preferred procurement program will
provide additional opportunities for businesses and manufacturers to
begin supplying products under the designated biobased items 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 this rule. The 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 and costs of biobased products acceptable is unknown, it is
impossible to quantify the actual economic effect of the rule.
2. Benefits of the Rule
The designation of these ten items, including their subcategories,
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; to spur
development of the industrial base through value-added agricultural
processing and manufacturing in rural communities; to enhance the
Nation's energy security by substituting biobased products for products
derived from imported oil and natural gas; and to substitute products
with a possibly more benign or beneficial environmental impact, as
compared to the use of fossil energy-based products. On a national and
regional level, this rule can result in expanding and strengthening
markets for biobased materials used in these items.
3. Costs of the Rule
Like the benefits, the costs of this 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. Procurement
costs for Federal agencies may rise as they evaluate the availability
and relative cost of preferred products before making a purchase.
B. Regulatory Flexibility Act (RFA)
When an agency issues a final rule following a proposed rule, the
Regulatory Flexibility Act (RFA, 5 U.S.C. 601-612) requires the agency
to prepare a final regulatory flexibility analysis. 5 U.S.C. 604.
However, the requirement for a final regulatory flexibility analysis
does not apply if the head of the agency certifies that the rule will
not, if promulgated, have a significant economic impact on a
substantial number of small entities. 5 U.S.C. 605(b).
USDA evaluated the potential impacts of its designation of these
items to determine whether its actions would have a significant impact
on a substantial number of small entities. Because the Federal
Procurement of Biobased Products under section 9002 of FSRIA applies
only to Federal agencies and their contractors, small governmental
(city, county, etc.) agencies are not affected. Thus, this rule 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 items for preferred procurement will
provide additional opportunities for businesses to manufacture and sell
biobased products to Federal agencies and their contractors. Similar
opportunities will be provided for entities that supply biobased
materials to manufacturers. Conversely, the preferred procurement
program may decrease opportunities for businesses that manufacture or
sell non-biobased products or provide components for the manufacturing
of such products. However, this rule will not affect existing purchase
orders and it will not preclude procuring agencies from continuing to
purchase non-biobased items under certain conditions relating to the
availability, performance, or cost of biobased items. This rule will
also not preclude businesses from modifying their product lines to meet
new specifications or solicitation requirements for these products
containing biobased materials. Thus, the economic impacts of this rule
are not expected to be significant.
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 products within the items and their subcategories 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 affected by this rulemaking is not expected to be
substantial.
After considering the economic impacts of this 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 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.
Technological innovation associated with the use of biobased materials
can translate into economic growth and
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increased industry competitiveness worldwide, thereby, creating
opportunities for small entities.
C. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule has been reviewed in accordance with Executive Order
12630, Governmental Actions and Interference with Constitutionally
Protected Property Rights, and does not contain policies that would
have implications for these rights.
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 rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment. Provisions of this
rule will not have a substantial direct effect on States or their
political subdivisions or on the distribution of power and
responsibilities among the various government levels.
F. Unfunded Mandates Reform Act of 1995
This rule contains no Federal mandates under the regulatory
provisions of Title II of the Unfunded Mandates Reform Act of 1995
(UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal governments,
or the private sector. Therefore, a statement under section 202 of UMRA
is not required.
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 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 rule is
currently approved under OMB control number 0503-0011.
J. Government Paperwork Elimination Act Compliance
The Office of Energy Policy and New Uses is committed to compliance
with the Government Paperwork Elimination Act (GPEA) (44 U.S.C. 3504
note), which requires Government agencies in general to provide the
public the option of submitting information or transacting business
electronically to the maximum extent possible. USDA is implementing an
electronic information system for posting information voluntarily
submitted by manufacturers or vendors on the products they intend to
offer for preferred procurement under each designated item. For
information pertinent to GPEA compliance related to this rule, please
contact Marvin Duncan at (202) 401-0461.
List of Subjects in 7 CFR Part 2902
Biobased products, Procurement.
0
For the reasons stated in the preamble, the Department of Agriculture
is amending 7 CFR chapter XXIX as follows:
CHAPTER XXIX--OFFICE OF ENERGY POLICY AND NEW USES, DEPARTMENT OF
AGRICULTURE
PART 2902--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL
PROCUREMENT
0
1. The authority citation for part 2902 continues to read as follows:
Authority: 7 U.S.C. 8102.
0
2. Add Sec. Sec. 2902.25 through 2902.34 to subpart B to read as
follows:
Sec. 2902.25 2-Cycle engine oils.
(a) Definition. Lubricants designed for use in 2-cycle engines to
provide lubrication, decreased spark plug fouling, reduced deposit
formation, and/or reduced engine wear.
(b) Minimum biobased content. The preferred procurement product
must have a biobased content of at least 34 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 May 14, 2009,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased 2-cycle engine oils. By
that date, Federal agencies that have the responsibility for drafting
or reviewing specifications for items to be procured shall ensure that
the relevant specifications require the use of biobased 2-cycle engine
oils.
Sec. 2902.26 Lip care products.
(a) Definition. Personal care products formulated to replenish the
moisture and/or prevent drying of the lips.
(b) Minimum biobased content. The preferred procurement product
must have a biobased content of at least 82 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 May 14, 2009,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased lip care products. By
that date, Federal agencies that have the responsibility for drafting
or reviewing specifications for items to be procured shall ensure that
the relevant specifications require the use of biobased lip care
products.
Sec. 2902.27 Films.
(a) Definition. (1) Products that are used in packaging, wrappings,
linings, and other similar applications.
(2) Films for which preferred procurement applies are:
(i) Semi-durable films. Films that are designed to resist water,
ammonia, and other compounds, to be re-used, and to not readily
biodegrade. Products in this item are typically used in the production
of bags and packaging materials.
(ii) Non-durable films. Films that are intended for single use for
short-term storage or protection before being discarded. Non-durable
films that are designed to have longer lives when used are included in
this item.
(b) Minimum biobased content. The minimum biobased content for all
films shall be based on the amount of qualifying biobased carbon in the
product as a percent of the weight (mass) of the total organic carbon
in the finished product. The applicable minimum biobased contents are:
(1) Semi-durable films--45 percent.
(2) Non-durable films--85 percent.
(c) Preference compliance date. No later than May 14, 2009,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased semi-durable and non-
durable films. By that date, Federal
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agencies that have the responsibility for drafting or reviewing
specifications for items to be procured shall ensure that the relevant
specifications require the use of biobased semi-durable and non-durable
films.
(d) Determining overlap with an EPA-designated recovered content
product. Qualifying products within the semi-durable films subcategory
may overlap with the EPA-designated recovered content product: Plastic
trash bags. USDA is requesting that manufacturers of these qualifying
biobased products provide information for the BioPreferred Web site of
qualifying biobased products about the intended uses of the product,
information on whether or not the product contains any recovered
material, in addition to biobased ingredients, and performance
standards against which the product has been tested. This information
will assist Federal agencies in determining whether or not a qualifying
biobased product overlaps with EPA-designated plastic trash bags and
which product should be afforded the preference in purchasing.
Note to paragraph (d): Biobased semi-durable film products
within this designated item can compete with plastic trash bag
products with recycled content. Under the Resource Conservation and
Recovery Act of 1976, section 6002, the U.S. Environmental
Protection Agency designated plastic trash bags containing recovered
materials as items for which Federal agencies must give preference
in their purchasing programs. The designation can be found in the
Comprehensive Procurement Guideline, 40 CFR 247.16. EPA provides
recovered materials content recommendations for plastic trash bags
in the May 1, 1995, Recovered Materials Advisory Notice (RMAN I).
The RMAN recommendations can be found on EPA's Web site http://
www.epa.gov/epaoswer/non-hw/procure/products.htm and then clicking
on the appropriate product name.
Sec. 2902.28 Stationary equipment hydraulic fluids.
(a) Definition. Fluids formulated for use in stationary hydraulic
equipment systems that have various mechanical parts, such as
cylinders, pumps, valves, pistons, and gears, that are used for the
transmission of power (and also for lubrication and/or wear, rust, and
oxidation protection).
(b) Minimum biobased content. The preferred procurement product
must have a biobased content of at least 44 percent, which shall be
based on the amount of qualifying biobased carbon in the product as a
percent of the weight (mass) of the total organic carbon in the
finished product.
(c) Preference compliance date. No later than May 14, 2009,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased stationary equipment
hydraulic fluids. By that date, Federal agencies that have the
responsibility for drafting or reviewing specifications for items to be
procured shall ensure that the relevant specifications require the use
of biobased stationary equipment hydraulic fluids.
(d) Determining overlap with an EPA-designated recovered content
product. Qualifying biobased products that fall under this item may, in
some cases, overlap with the EPA-designated recovered content product:
Re-refined lubricating oils. USDA is requesting that manufacturers of
these qualifying biobased products provide information for the
BioPreferred Web site of qualifying biobased products about the
intended uses of the product, information on whether or not the product
contains any recovered material, in addition to biobased ingredients,
and performance standards against which the product has been tested.
This information will assist Federal agencies in determining whether or
not a qualifying biobased product overlaps with EPA-designated re-
refined lubricating oils and which product should be afforded the
preference in purchasing.
Note to paragraph (d): Stationary equipment hydraulic fluid
products within this designated item can compete with hydraulic
fluid products with recycled content. Under the Resource
Conservation and Recovery Act of 1976, section 6002, the U.S.
Environmental Protection Agency designated re-refined lubricating
oils containing recovered materials as items for which Federal
agencies must give preference in their purchasing programs. The
designation can be found in the Comprehensive Procurement Guideline,
40 CFR 247.11. EPA provides recovered materials content
recommendations for re-refined lubricating oils in the May 1, 1995,
Recovered Materials Advisory Notice (RMAN I). The RMAN
recommendations can be found by accessing EPA's Web site http://
www.epa.gov/epaoswer/non-hw/procure/products.htm and then clicking
on the appropriate product name.
Sec. 2902.29 Disposable cutlery.
(a) Definition. Hand-held, disposable utensils designed for one-
time use in eating food.
(b) Minimum biobased content. The preferred procurement product
must have a biobased content of at least 48 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 May 14, 2009,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased disposable cutlery. By
that date, Federal agencies that have the responsibility for drafting
or reviewing specifications for items to be procured shall ensure that
the relevant specifications require the use of biobased disposable
cutlery.
Sec. 2902.30 Glass cleaners.
(a) Definition. Cleaning products designed specifically for use in
cleaning glass surfaces, such as windows, mirrors |
