This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

6366 

Vol. 76, No. 24 

Friday, February 4, 2011 

DEPARTMENT OF AGRICULTURE 

7 CFR Part 2902 

RIN 0503–AA39 

Designation of Biobased Items for 

Federal Procurement 

AGENCY: Departmental Management, 

USDA. 

ACTION: Proposed rule; amendments. 

SUMMARY: The U.S. Department of 

Agriculture (USDA) is proposing to 

amend its Guidelines for Designating 

Biobased Products for Federal 

Procurement, to be consistent with 

certain statutory changes to section 9002 

of the Farm Security and Rural 

Investment Act (FSRIA) that were 

effected when the Food, Conservation, 

and Energy Act (FCEA) of 2008 was 

signed into law on June 18, 2008. 

Elsewhere in this issue of the Federal 

Register, we are publishing a 

companion direct final rule. This 

proposed rule will provide a procedural 

framework to finalize the rule in the 

event we receive significant adverse 

comment and withdraw the direct final 

rule. 

DATES: USDA will accept public 

comments on these proposed rule 

amendments until April 5, 2011. 

ADDRESSES: Please submit any 

comments, or a notice of intent to 

submit comments, identified by 

‘‘Proposed Technical Amendments to 

BioPreferred Program Guidelines’’ or 

Regulatory Information Number (RIN) 

0503–AA39, by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: biopreferred@usda.gov. 

Include RIN number 0503–AA39 and 

‘‘Proposed Technical Amendments to 

BioPreferred Program Guidelines’’ on 

the subject line. Please include your 

name and address in your message. 

• Mail/commercial/hand delivery: 

Mail or deliver your comments to: Ron 

Buckhalt, USDA, Office of Procurement 

and Property Management, Room 361, 

Reporters Building, 300 7th St., SW., 

Washington, DC 20024. 

• Persons with disabilities who 

require alternative means for 

communication for regulatory 

information (Braille, large print, 

audiotape, etc.) should contact the 

USDA TARGET Center at (202) 720– 

2600 (voice) and (202) 690–0942 (TTY). 

FOR FURTHER INFORMATION CONTACT: Ron 

Buckhalt, USDA, Office of Procurement 

and Property Management, Room 361, 

Reporters Building, 300 7th St., SW., 

Washington, DC 20024; e-mail: 

biopreferred@usda.gov; phone (202) 

205–4008. Information regarding the 

preferred procurement program (one 

part of the BioPreferred Program) is 

available on the Internet at http:// 

www.biopreferred.gov. 

SUPPLEMENTARY INFORMATION: The 

information presented in this preamble 

is organized as follows: 

I. Authority 

II. Background 

III. Summary of Changes 

IV. Regulatory Information 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Executive Order 12630: Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

C. Executive Order 12988: Civil Justice 

Reform 

D. Executive Order 13132: Federalism 

E. Unfunded Mandates Reform Act of 1995 

F. Executive Order 12372: 

Intergovernmental Review of Federal 

Programs 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

H. Paperwork Reduction Act 

I. Authority 

The Guidelines for Designating 

Biobased Products for Federal 

Procurement (the Guidelines) are 

established under the authority of 

section 9002 of the Farm Security and 

Rural Investment Act of 2002 (FSRIA), 

7 U.S.C. 8102, as amended by the Food, 

Conservation, and Energy Act of 2008 

(FCEA). (Section 9002 of FSRIA, as 

amended by the FCEA, is referred to in 

this document as ‘‘section 9002’’.) 

II. Background 

As originally enacted, section 9002 

provides for the preferred procurement 

of biobased products by Federal 

agencies. USDA proposed guidelines for 

implementing this preferred 

procurement program on December 19, 

2003 (68 FR 70730–70746). The 

Guidelines were promulgated on 

January 11, 2005 (70 FR 1792), and are 

contained in 7 CFR part 2902, 

‘‘Guidelines for Designating Biobased 

Products for Federal Procurement.’’ 

The Guidelines identify various 

procedures Federal agencies are 

required to follow in implementing the 

requirements of section 9002. They were 

modeled in part on the ‘‘Comprehensive 

Procurement Guidelines for Products 

Containing Recovered Materials’’ (40 

CFR part 247), which the Environmental 

Protection Agency (EPA) issued 

pursuant to the Resource Conservation 

Recovery Act (‘‘RCRA’’), 40 U.S.C. 6962. 

On June 18, 2008, the FCEA was 

signed into law. Section 9001 of the 

FCEA includes several provisions that 

amend section 9002 of FSRIA. Some of 

these provisions require programmatic 

changes to the preferred procurement 

program. Other provisions of the FCEA 

simply clarify terminology and 

requirements for the preferred 

procurement program. USDA is 

continuing to resolve issues related to 

implementing the programmatic 

changes and will propose additional 

amendments to the Guidelines at a later 

date. For example, the Guidelines’ 

definition of ‘‘biobased product’’ will be 

later revised to include intermediate 

ingredients and feedstocks, pending 

such programmatic changes. The 

purpose of today’s proposed rule 

amendments is to revise the Guidelines 

(i.e., 7 CFR part 2902) to make them 

consistent with certain technical 

changes to section 9002 of FSRIA as 

required by the FCEA. 

This proposed rule is a companion to 

a direct final rule published in the final 

rules section of this issue of the Federal 

Register. The direct final rule and this 

companion proposed rule are 

substantively identical. This companion 

proposed rule provides a procedural 

framework within which the rule may 

be finalized in the event the direct final 

rule is withdrawn because of any 

significant adverse comment. The 

comment period for the direct final rule 

runs concurrently with the comment 

period of this companion proposed rule. 

Any comments received in response to 

this companion proposed rule will also 

be considered as comments regarding 

the direct final rule and vice versa. We 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 24 / Friday, February 4, 2011 / Proposed Rules 6367 

will not provide additional opportunity 

for comment. 

If we receive any significant adverse 

comment, we intend to withdraw the 

final rule before its effective date by 

publishing a notice in the Federal 

Register within 30 days after the 

comment period ends. If we withdraw 

the direct final rule, all comments 

received will be considered under this 

companion proposed rule in developing 

a final rule under the usual notice-andcomment procedures. 

III. Summary of Changes 

USDA is proposing to amend eight 

sections of 7 CFR part 2902, as 

described below. 

A. 7 CFR 2902.1—Purpose and Scope 

In response to the promulgation of the 

FCEA, USDA is proposing to amend 7 

CFR 2902.1(a) to refer to compliance 

with that law’s requirements. 

B. 7 CFR 2902.2—Definitions 

In response to section 9001 of the 

FCEA, USDA is proposing to amend 7 

CFR 2902.2 by revising the definition of 

‘‘biobased product’’ to add the word 

‘‘including.’’ This is to ensure that the 

Guidelines do not violate U.S. trade 

agreements by applying exclusively to 

domestic agricultural materials. 

Additionally, a definition for ‘‘FCEA’’ 

has been added. 

C. 7 CFR 2902.3—Applicability to 

Federal Procurements 

USDA is proposing to amend 7 CFR 

2902.3(c) to state that procuring 

agencies must comply with section 

9002(a)(2) regarding the procuring of 

products composed of the highest 

percentage of biobased content 

practicable. Section 2902.3(c) now 

incorrectly includes the phrase ‘‘highest 

percentage of biobased products.’’ 

D. 7 CFR 2902.4—Procurement 

Programs 

USDA has revised paragraph (b)(2)(ii) 

to read ‘‘section 9002’’ as it refers to both 

FSRIA and the FCEA. 

E. 7 CFR 2902.5—Item Designation 

USDA is proposing to amend 7 CFR 

2905.5(c) by adding heating oil to the 

list of exclusions to this program, 

because it was added to the list 

pursuant to section 9001 of the FCEA. 

F. 7 CFR 2902.6—Providing Product 

Information to Federal Agencies 

In response to a name change, USDA 

is proposing to amend 7 CFR 2902.6(a) 

to refer to the USDA information Web 

site at ‘‘http://www.biopreferred.gov’’ 

rather than to ‘‘http:// 

www.biobased.oce.usda.gov.’’ 

Additionally, USDA is proposing to 

amend 7 CFR 2902.6(b) to include a 

reference to the BioPreferred 

‘‘Guidelines for Marketing the 

BioPreferred Program,’’ and a link to the 

Federal Trade Commission ‘‘Guides for 

the Use of Environmental Marketing 

Claims.’’ 

G. 7 CFR 2902.8—Determining Life 

Cycle Costs, Environmental and Health 

Benefits, and Performance 

USDA is proposing to revise 7 CFR 

2902.8 to comply with section 

9002(a)(3)(D), which states that 

guidelines issued under this paragraph 

may not require a manufacturer or 

vendor of biobased products, as a 

condition of the purchase of biobased 

products from the manufacturer or 

vendor, to provide to procuring agencies 

more data than would be required to be 

provided by manufacturers or vendors 

offering products for sale to a procuring 

agency, other than data confirming the 

biobased content of a product. 

H. 7 CFR 2902.9—Funding for Testing 

In response to a name change, USDA 

is proposing to amend 7 CFR 2902.9(b) 

to refer to the USDA information Web 

site at ‘‘http://www.biopreferred.gov’’ 

rather than to ‘‘http:// 

www.biobased.oce.usda.gov.’’ 

IV. Regulatory Information 

A. Executive Order 12866: Regulatory 

Planning and Review 

This proposed rule has been reviewed 

under Executive Order 12866. It has 

been determined that this proposed 

rule, which amends the Guidelines, is 

not a ‘‘significant regulatory action’’ 

under the terms of Executive Order 

12866, because its purpose is only to 

implement statutory amendments to 

section 9002. Therefore, this proposed 

rule has not been reviewed by the Office 

of Management and Budget (OMB). 

B. Executive Order 12630: 

Governmental Actions and Interference 

With Constitutionally Protected Property 

Rights 

This proposed rule has been reviewed 

in accordance with Executive Order 

12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights, and does not 

contain policies that would have 

implications for these rights. 

C. Executive Order 12988: Civil Justice 

Reform 

This proposed rule has been reviewed 

in accordance with Executive Order 

12988, Civil Justice Reform. This 

proposed rule does not preempt State or 

local laws, is not intended to have 

retroactive effect, and does not involve 

administrative appeals. 

D. Executive Order 13132: Federalism 

This proposed rule does not have 

sufficient federalism implications to 

warrant the preparation of a Federalism 

Assessment. Provisions of this proposed 

rule will not have a substantial direct 

effect on States or their political 

subdivisions or on the distribution of 

power and responsibilities among the 

various government levels. 

E. Unfunded Mandates Reform Act of 

1995 

This proposed rule contains no 

Federal mandates under the regulatory 

provisions of Title II of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 

2 U.S.C. 1531–1538, for State, local, and 

tribal governments, or the private sector. 

Therefore, a statement under section 

202 of UMRA is not required. 

F. 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. 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Today’s proposed rule does not 

significantly or uniquely affect ‘‘one or 

more Indian tribes, * * * the 

relationship between the Federal 

Government and Indian tribes, or * * * 

the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes.’’ Thus, 

no further action is required under 

Executive Order 13175. 

H. Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

through 3520), the information 

collection under the Guidelines is 

currently approved under OMB control 

number 0503–0011. 

List of Subjects in 7 CFR Part 2902 

Biobased products, Procurement. 

For the reasons stated in the 

preamble, the Department of Agriculture 

is proposing to amend 7 CFR chapter 

XXIX as follows: 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
6368 Federal Register / Vol. 76, No. 24 / Friday, February 4, 2011 / Proposed Rules 

CHAPTER XXIX—OFFICE OF ENERGY 

PART 2902—GUIDELINES FOR 

DESIGNATING BIOBASED PRODUCTS 

FOR FEDERAL PROCUREMENT 

1. The authority citation for part 2902 

continues to read as follows: 

Authority: 7 U.S.C. 8102. 

2. Section 2902.1 is revised to read as 

follows: 

§ 2902.1 Purpose and scope. 

(a) Purpose. The purpose of the 

guidelines in this part is to assist 

procuring agencies in complying with 

the requirements of section 9002 of the 

Farm Security and Rural Investment Act 

of 2002 (FSRIA), Public Law 107–171, 

116 Stat. 476 (7 U.S.C. 8102), as 

amended by the Food, Conservation, 

and Energy Act of 2008, Public Law 

110–246, 122 Stat. 1651, as they apply 

to the procurement of the products 

designated in subpart B of this part. 

(b) Scope. The guidelines in this part 

designate items that are or can be 

produced with biobased products and 

whose procurement by procuring 

agencies will carry out the objectives of 

section 9002. 

3. Section 2902.2 is amended by 

revising the definition of ‘‘biobased 

product’’ and adding a definition for 

‘‘FCEA’’ to read as follows: 

§ 2902.2 Definitions. 

* * * * * 

Biobased product. A product 

determined by USDA to be a 

commercial or industrial product (other 

than food or feed) that is composed, in 

whole or in significant part, of 

biological products, including 

renewable domestic agricultural 

materials and forestry materials. 

* * * * * 

FCEA. The Food, Conservation and 

Energy Act of 2008, Public Law 110– 

246. 

* * * * * 

4. Section 2902.3 is amended by 

revising paragraph (c) to read as follows: 

§ 2902.3 Applicability to Federal 

procurements. 

* * * * * 

(c) Procuring products composed of 

the highest percentage of biobased 

content. Section 9002(a)(2) requires 

procuring agencies to procure 

designated items composed of the 

highest percentage of biobased content 

practicable or such products that 

comply with the regulations issued 

under section 103 of Public Law 100– 

556 (42 U.S.C. 6914b–1), consistent with 

maintaining a satisfactory level of 

competition, considering these 

guidelines. Procuring agencies may 

decide not to procure such products if 

they are not reasonably priced or readily 

available or do not meet specified or 

reasonable performance standards. 

* * * * * 

5. Section 2902.4 is amended by 

revising paragraph (b)(2)(ii) to read as 

follows: 

§ 2902.4 Procurement programs. 

* * * * * 

(b) * * * 

(2) * * * 

(ii) A policy of setting minimum 

biobased products content 

specifications in such a way as to assure 

that the biobased products content 

required is consistent with section 9002 

and the requirements of the guidelines 

in this part except when such items: 

(A) Are not available within a 

reasonable time; 

(B) Fail to meet performance 

standards for the use to which they will 

be put, or the reasonable performance 

standards of the Federal agency; or 

(C) Are available only at an 

unreasonable price. 

* * * * * 

6. Section 2902.5 is amended by 

revising paragraph (c)(1) to read as 

follows: 

§ 2902.5 Item designation. 

* * * * * 

(c) Exclusions. (1) Motor vehicle fuels, 

heating oil, and electricity are excluded 

by statute from this program. 

* * * * * 

7. Section 2902.6 is amended by 

revising the first sentence of paragraph 

(a) and by revising paragraph (b) to read 

as follows: 

§ 2902.6 Providing product information to 

Federal agencies. 

(a) Informational Web site. An 

informational USDA Web site 

implementing section 9002 can be 

found at: http://www.biopreferred.gov. 

* * * 

(b) Advertising, labeling and 

marketing claims. Manufacturers and 

vendors are reminded that their 

advertising, labeling, and other 

marketing claims, including claims 

regarding health and environmental 

benefits of the product, must conform to 

the Federal Trade Commission ‘‘Guides 

for the Use of Environmental Marketing 

Claims,’’ 16 CFR part 260 (see: http:// 

www.access.gpo.gov/nara/cfr/ 

waisidx_08/16cfr260_08.html). For 

further requirements, click on the link 

to the ’’Guidelines for Marketing the 

BioPreferred Program.’’ 

8. Section 2902.8 is amended by 

revising paragraph (a) to read as follows: 

§ 2902.8 Determining life cycle costs, 

environmental and health benefits, and 

performance. 

(a) Providing information on life cycle 

costs and environmental and health 

benefits. Federal agencies may not 

require manufacturers or vendors of 

biobased products to provide to 

procuring agencies more data than 

would be required to be provided by 

other manufacturers or vendors offering 

products for sale to a procuring agency, 

other than data confirming the biobased 

contents of the products, as a condition 

of the purchase of biobased products 

from the manufacturer or vendor. 

* * * * * 

9. Section 2902.9 is amended by 

revising paragraph (b)(1) to read as 

follows: 

§ 2902.9 Funding for testing. 

* * * * * 

(b) * * * 

(1) Subject to the availability of funds 

and paragraph (a) of this section, USDA 

will announce annually the solicitation 

of proposals for cost sharing for life 

cycle costs, environmental and health 

benefits, and performance testing of 

biobased products in accordance with 

the standards set forth in § 2902.8 to 

carry out this program. Information 

regarding the submission of proposals 

for cost sharing also will be posted on 

the USDA informational Web site, 

http://www.biopreferred.gov. 

* * * * * 

Dated: January 25, 2011. 

Pearlie S. Reed, 

Assistant Secretary for Administration, U.S. 

Department of Agriculture. 

[FR Doc. 2011–2012 Filed 2–3–11; 8:45 am] 

BILLING CODE 3410–93–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

15 CFR Part 922 

[Docket No. 100827401–0619–01] 

RIN 0648–BA20 

Olympic Coast National Marine 

Sanctuary Regulations Revisions 

AGENCY: Office of National Marine 

Sanctuaries (ONMS), National Ocean 

Service (NOS), National Oceanic and 

Atmospheric Administration (NOAA), 

Department of Commerce (DOC). 

ACTION: Extension of public comment 

period. 

SUMMARY: On January 14, 2011, NOAA 

published a proposed rule in the 


emcdonald on DSK2BSOYB1PROD with PROPOSALS