[Federal Register Volume 73, Number 94 (Wednesday, May 14, 2008)]
[Rules and Regulations]
[Pages 27978-27995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10116]



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Part V





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

Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Rules 
and Regulations

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DEPARTMENT OF AGRICULTURE

Office of Energy Policy and New Uses

7 CFR Part 2902

RIN 0503-AA32


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 eight 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 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: <a href="/cdn-cgi/l/email-protection#036e67766d60626d436c60662d767067622d646c75"><span class="__cf_email__" data-cfemail="e48980918a87858aa48b8781ca91978085ca838b92">[email protected]</span></a>; 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 October 11, 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 59862. This 
rulemaking is referred to in this preamble as Round 4 (RIN 0503-AA32).
    The Round 4 proposed rule proposed designating the following ten 
items, including their subcategories, for the preferred procurement 
program: Bathroom and spa cleaners; \1\ clothing products; \2\ concrete 
and asphalt release fluids; general purpose de-icers; \3\ durable 
plastic films; \4\ firearm lubricants; floor strippers; laundry 
products, including pretreatment/spot removers and general purpose 
laundry products as subcategories; metalworking fluids--straight oils; 
\5\ and wood and concrete sealers.
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    \1\ At proposal this item was named ``bath and tile cleaners.'' 
Based on public comments received, and as explained in section IV of 
this preamble, USDA has renamed this item as ``bathroom and spa 
cleaners.''
    \2\ Based on public comments received, and as explained in 
section IV of this preamble, this proposed item has been withdrawn 
from the final rule.
    \3\ At proposal this item was named ``de-icers.'' Based on 
public comments received, and as explained in this preamble, USDA 
has renamed this item as ``general purpose de-icers.''
    \4\ Based on public comments received, and as explained in 
section IV of this preamble, this proposed item is now a subcategory 
under the designated item ``films,'' which is included in the Round 
3 final rulemaking.
    \5\ At proposal this item was named ``cutting, drilling, and 
tapping oils.'' Based on public comments received, and as explained 
in section IV of this preamble, USDA has renamed this item as 
``metalworking fluids'' and has included three subcategories.
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    Today's final rule designates the following eight items, including 
subcategories, within which biobased products will be afforded Federal 
procurement preference: Bathroom and spa cleaners; concrete and asphalt 
release fluids; general purpose de-icers; firearm lubricants; floor 
strippers; laundry products, including pretreatment/spot removers and 
general purpose laundry products as subcategories; metalworking fluids, 
including straight oils, general purpose soluble, semi-synthetic, and 
synthetic oils, and high performance soluble, semi-synthetic, and 
synthetic oils as subcategories; and wood and concrete sealers, 
including penetrating liquid sealers and membrane concrete sealers 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

[[Page 27979]]

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. 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--laundry products, metalworking fluids, and wood and 
concrete sealers. For laundry products, the subcategories are: (1) 
Pretreatment/spot removers and (2) general purpose laundry products. 
For metalworking fluids, the subcategories are: (1) Straight oils, (2) 
general purpose soluble, semi-synthetic, and synthetic oils, and (3) 
high performance soluble, semi-synthetic, and synthetic oils. For wood 
and concrete sealers, the subcategories are: (1) Penetrating liquid 
sealers and (2) membrane concrete sealers.
    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 eight 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.
    Preference compliance date. Because USDA has identified only one 
manufacturer of products within the high performance soluble, semi-
synthetic, and synthetic oils subcategory, the preference compliance 
date is deferred until USDA identifies two or more manufacturers of 
products in this subcategory. When it identifies two or more 
manufacturers, USDA will publish a document in the Federal Register 
announcing that Federal agencies will have one year from the date of 
publication of that announcement to give procurement preference to 
biobased metalworking fluids in the high performance soluble, semi-
synthetic, and synthetic oils subcategory.
    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.
    Exemptions. In earlier item designation rules, USDA created 
exemptions from the preferred procurement program's requirements for 
procurements involving combat or combat-related missions and for 
spacecraft systems and launch support equipment. Since publication of 
those final rules in the Federal Register, and in response to comments 
from the Department of Defense (DoD) (see General Comments, below), 
USDA has decided to create ``blanket'' exemptions for all items used in 
products or systems designed or procured for combat or combat-related 
missions, which will apply to all items designated for the procurement 
preference. These ``blanket'' exemptions can be found in subpart A of 
part 2902. Because these blanket exemptions are included in subpart A 
of part 2902, it is unnecessary to repeat them in the individual item 
designations. Accordingly, in order to avoid repetition, this final 
rule removes all the exemption references contained in individual item 
designations.

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 withdrawn. The proposed ``clothing products'' item has been 
withdrawn from the group of items being designated for preferred 
procurement in today's final rulemaking. USDA has determined that 
sufficient data are not available to support the designation of this 
item at this time. At proposal, USDA had information on clothing 
products made of polylactic acid (PLA), one type of

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biobased synthetic fiber. USDA is also aware that other types of 
biobased synthetic fibers could be used for clothing products but does 
not have sufficient information to include these products in the 
evaluation of this item. Because there is potentially a wide variation 
in the biobased contents, performance, and life cycle costs between 
clothing products made of PLA and those made of other biobased 
synthetic fibers, USDA believes that the designation of this item 
should be delayed until additional products can be obtained and 
analyzed.
    Item names. The names for four of the proposed items were revised. 
``Bath and tile cleaners'' is now ``bathroom and spa cleaners.'' ``De-
icers'' is now ``general purpose de-icers.'' ``Durable plastic films'' 
was renamed ``durable films'' and is now a subcategory under the 
designated item ``films,'' which is included in the Round 3 final 
rulemaking. ``Cutting, drilling and tapping oils'' was renamed 
``metalworking fluids--straight oils'' and is now a subcategory under 
the designated item ``metalworking fluids'' in today's final 
rulemaking.
    Item definitions. Except for ``concrete and asphalt release 
fluids'' and ``floor strippers,'' the definitions for the other items 
were modified to varying degrees. The definitions for metalworking 
fluids and wood and concrete sealers were modified in order to address 
the addition of subcategories (as discussed in the following 
paragraph).
    Subcategories. In addition to finalizing the proposed subcategories 
under the ``laundry products'' item, subcategories were created for two 
items. Metalworking fluids was subcategorized into (1) straight oils, 
(2) general purpose soluble, semi-synthetic, and synthetic oils and (3) 
high performance soluble, semi-synthetic, and synthetic oils. Wood and 
concrete sealers was subcategorized into (1) penetrating liquid sealers 
and (2) membrane concrete sealers.
    Minimum biobased contents. 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 general purpose de-icers, the minimum biobased content was 
changed from 97 percent to 93 percent.
    For floor strippers, the minimum biobased content was changed from 
79 percent to 78 percent.
    For laundry products, the minimum biobased content of the 
pretreatment/spot removers subcategory was changed from 8 percent to 46 
percent.
    For metalworking fluids, the minimum biobased content for the high 
performance soluble, semi-synthetic, and synthetic oils subcategory was 
set at 40 percent and the minimum biobased content for the general 
purpose soluble, semi-synthetic, and synthetic oils subcategory was set 
at 57 percent. For the straight oils subcategory, the minimum biobased 
content was set at 66 percent.
    For wood and concrete sealers, the proposed minimum biobased 
content of 79 percent was retained for the penetrating liquid sealers 
subcategory and the minimum biobased content for the membrane concrete 
sealers subcategory was set at 11 percent.
    Preference compliance date. For the high performance soluble, semi-
synthetic, and synthetic metalworking fluids subcategory, the 
preference compliance date is deferred until USDA identifies two or 
more manufacturers in the subcategory. When it identifies two or more 
manufacturers, USDA will publish a document in the Federal Register 
announcing that Federal agencies will have one year from the date of 
publication of that announcement to give procurement preference to 
biobased high performance soluble, semi-synthetic, and synthetic 
metalworking fluids.

IV. Discussion of Comments

    USDA solicited comments on the proposed rule for 60 days ending on 
December 11, 2006. USDA received comments from 11 commenters by that 
date. The comments were from individual manufacturers, trade 
organizations, and Federal agencies.
    The comments contained in this Federal Register notice address 
general comments related to the preferred procurement program under the 
BioPreferred Program and specific comments related to Round 4 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 4 
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 4 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 A), and (3) a tabular and graphical presentation of the 
BEES environmental performance scores for each item (Appendix B). This 
information is being presented in the technical support document as the 
result of general comments received on the proposed rules for Rounds 2 
and 3. The technical support document for Round 4 includes additional 
information as identified in the remainder of this preamble.

General Comments

    Several of the commenters expressed appreciation for USDA's effort 
in designating items for preferred procurement. While these comments 
are not presented within this preamble, USDA thanks the commenters for 
such comments.
Minimum Biobased Content
    Comment: Several commenters have expressed concern 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

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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 three items, USDA reviewed the biobased content data 
but did not find sufficient justification for revising the proposed 
minimum biobased content level. For bathroom and spa cleaners item, 8 
biobased content test results were available (16, 77, 78, 82, 83, 98, 
99, and 100 percent). With the exception of the 16 percent product, 
this is a fairly narrow range of data points with a noticeable break 
between the 83 percent and the 98 percent products. USDA investigated 
the 16 percent product but could find no basis for creating a 
subcategory or for considering setting the minimum biobased content 
based on this product. At proposal, USDA found that the products with 
77 and 83 percent biobased content met Green Chemical Specifications 
that the remaining products do not claim to meet. In order to include 
these products in the preferred procurement program, USDA proposed 
setting the minimum biobased content at 74 percent, based on the 
product with a biobased content of 77 percent. No public comments or 
additional data were received to support changing the proposed level. 
As a result, the proposed minimum biobased content of 74 percent was 
retained for the final rule.
    For the concrete and asphalt release fluids item, USDA reviewed the 
biobased content data (90, 91, 92, 93, 94, 94, 96, 96, and 98 percent) 
and found that because the range of the data points is so narrow and 
does not include any breaks, there is no justification for revising the 
proposed 87 percent minimum biobased content.
    For the firearm lubricants item, USDA proposed a minimum biobased 
content of 49 percent. Three biobased content data points (52, 53, 95) 
are available. USDA considered subcategorizing this item into two 
subcategories (general purpose and cold weather) but decided that not 
enough data were available to justify the subcategorization. The 
manufacturer of one of the three products claims that the product is 
formulated for use in cold weather applications, but the other products 
are also described as unique performance products. Because of the 
uncertainty regarding product performance claims, USDA has decided to 
set the minimum biobased content of the item at 49 percent, as 
proposed, and to continue to gather information that will be used in 
considering subcategorization in a future rulemaking.
Terminology
    Comment: One commenter stated that the biobased products 
procurement program, as proposed, may create a confusing picture of 
what the program is intended to cover because the terms ``biobased,'' 
``biodegradable,'' and ``compostable'' are used at times 
interchangeably. The commenter asked whether Federal purchasing agents 
understand the term ``biobased'' and that a biobased product is not 
necessarily biodegradable. The commenter pointed out that 
compostability most often only occurs when a product that is designed 
to be compostable is properly managed in a composting facility. 
According to the commenter, there are very limited numbers of 
commercial composting facilities in the U.S. The commenter also asked 
why some of the biobased items are designated as ``biodegradable'' and 
others are not.
    Response: USDA agrees that there can be confusion with regard to 
the three terms mentioned by the commenter. A ``biobased'' product is a 
product that is composed, in whole or in significant part, of 
biological products or renewable domestic agricultural materials or 
forestry materials. A biobased product may or may not be biodegradable 
and/or compostable. In simple terms, ``biodegradable'' generally means 
a product is capable of decomposing into simple compounds under natural 
conditions (either aerobic or anaerobic) by microorganisms. 
``Compostable'' generally means a product is capable of biological 
decomposition under controlled aerobic conditions, such as found in a 
compost pile or compost bin, by microorganisms or soil invertebrates. 
Therefore, all biodegradable products would be compostable, but not all 
compostable products are biodegradable.
    As discussed earlier in this preamble, USDA believes that the 
relationship between performance and biodegradability of an item must 
be considered before biodegradability is included as a prerequisite for 
a designated item to receive preferred

[[Page 27982]]

procurement under the BioPreferred Program. 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 receiving preferred procurement. In the case of items where USDA 
judges disposal to be as important as performance, USDA will require 
biodegradability as a prerequisite for receiving preferred procurement. 
This is why some items will be required to be biodegradable and others 
will not in order to receive preferred procurement under the 
BioPreferred Program. Although USDA is not requiring products in any of 
the items and subcategories being designated in today's rulemaking to 
be biodegradable, USDA intends to promote biobased products that are 
also biodegradable as part of the BioPreferred Program.
Prequalification of Biobased Materials
    Comment: Two commenters recommended that USDA develop a program for 
prequalifying the biobased material that will form the basis of 
biobased products. The commenters point out that biobased products are 
made from biobased materials. According to the commenters, testing and 
qualifying biobased materials will greatly accelerate the designation 
process for preferred procurement--if a product is made from a 
prequalified biobased material, it is then a simple matter for the 
manufacturer of the bioproduct to provide information to USDA on its 
biobased composition and, if verification of manufacturer supplied 
compositional information is needed, the ASTM biobased content test can 
always be conducted as needed. The commenters also suggested making 
prequalified biobased materials part of the ``U.S.D.A. Certified'' 
labeling program. When part of the labeling program, manufacturers 
would be able, according to the commenter, to contact biomaterial 
suppliers for information on the performance and other characteristics 
to determine the most appropriate biomaterials for their particular 
application. According to the commenters, this would expedite the 
development of biobased products consistent with the Congressional 
intent of FSRIA.
    Response: USDA agrees that there is merit in the concept of 
prequalifying biobased materials that are used to manufacture biobased 
products for preferred procurement. However, as noted in a response to 
public comments on the first six items designated for preferred 
procurement (71 FR 13702), section 9002 of FSRIA requires USDA to 
designate ``products'' for preferred procurement. Section 9001 of FSRIA 
defines ``biobased products'' as ``a product determined by the 
Secretary to be a commercial or industrial product (other than food or 
feed) that is composed, in whole or in significant part, of biological 
products or renewable domestic agricultural materials or forestry 
materials.'' Based on this definition, USDA does not believe it has the 
authority to consider ``biobased material used in the manufacture of 
biobased products'' to be ``products.'' USDA is, however, gathering 
information on biobased intermediate feedstocks and developing a list 
of these materials. USDA will provide this information on the 
BioPreferred Web site. USDA also notes that NIST currently includes 
soybeans, corn, wheat, rice, cotton, canola, potatoes, and wool as 
feedstocks when conducting the BEES life cycle analysis for biobased 
products.
    USDA has considered the commenter's recommendation to make 
prequalified biobased materials part of the ``U.S.D.A. Certified'' 
labeling program in developing the proposed rule for that program.
Overlap With EPA's Comprehensive Procurement Guideline (CPG)
    Comment: Two commenters recommended that USDA's Guidelines 
Designating Biobased Products for Federal Procurement be upgraded to 
include the proposal in this rulemaking for handling the ``overlap'' 
between the recycled content and biobased content programs.
    Response: While USDA appreciates the commenters' suggestion on 
revising the Guidelines to reflect the overlap potential between 
biobased products and products with recycled content, USDA will 
continue to discuss such overlap within each of the designated item 
rulemakings on an item-by-item basis. USDA believes that the discussion 
on overlap is more meaningful when presented in individual notices for 
designated items where such overlap exists or may exist.
Environmental and Health Information
    Comment: Two commenters recommended that USDA continue to emphasize 
the potential of biobased products to reduce greenhouse gas emissions 
as part of the preferred procurement program.
    Response: USDA agrees with the commenters that the potential for 
biobased products to reduce greenhouse gas emissions is an important 
attribute of which purchasers and others need to be aware. USDA will 
continue to identify this potential in preambles and in the background 
information on the BioPreferred Web site. USDA encourages the 
commenters, and others, to provide USDA with ``cradle-to-grave'' 
studies that demonstrate this potential attribute. USDA would then 
consider putting such results on the BioPreferred Web site.
Purchase of Biobased Products by Federal Agencies
    Comment: One commenter recommended that information on the 
following products be provided in the final rule for the benefit of 
Federal agency purchasers implementing both this round of biobased 
products and earlier biobased product designations: BioRenewables Glass 
Cleaner, NSN 7930-00-NIB-0331 (2 liter) and 7930-00-NIB-0330 (gallon); 
BioRenewables Restroom Cleaner, NSN 7930-00-NIB-0437; BioRenewables 
Graffiti Remover SAC, NSN 7930-00-NIB-0433 (quart) and 7930-00-NIB-0434 
(gallon); BioRenewables Waterless Hand Cleaner, NSN 8520-00-NIB-0093; 
BioRenewables Waterless Plus Hand Cleaner, NSN 8520-00-NIB-0094; 
TriBase Multi Purpose Cleaner, NSN 7930-00-NIB-0329; Lite'n Foamy 
Sunflower Fresh foaming hand, hair, and body wash.
    Response: USDA will include these products, offered through the 
National Industries for the Blind, in the product information provided 
on the BioPreferred Web site. Also note that the National Stock Numbers 
(NSN) provided by the commenter have changed since the comment was 
submitted. The revised NSN for the products are as follows: 
BioRenewables Glass Cleaner, NSN 7930-01-555-2898 (32 oz) and 7930-01-
555-3384 (gallon); BioRenewables Restroom Cleaner, NSN 7930-01-555-2900 
(32 oz); BioRenewables Graffiti Remover SAC, NSN 7930-01-555-3382 (32 
oz) and 7930-01-555-2899 (gallon); TriBase Multi Purpose Cleaner, NSN 
7930-01-555-2901 (gallon); Lite'n Foamy Sunflower Fresh foaming hand, 
hair, and body wash, NSN 8520-01-555-2903.
    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

[[Page 27983]]

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 BioPreferred 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.
Information Accuracy
    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.
Publicly Available Information
    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.
Recycling
    Comment: Several commenters were concerned about the effect of 
biobased products on existing recycling operations.
    One commenter requested that USDA evaluate and address the effect 
that biobased polymers used for durable films 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.
    Another commenter voiced concern over the introduction of biobased 
plastics, such as PLA, into the recycling stream because such products 
cannot be mixed with conventional plastics, such as PET, because the 
materials are not compatible for recycling processes. The commenter 
noted that PLA itself can be recycled, but that the recycling industry 
infrastructure is not currently configured to implement segregation 
collection and recycling of PLA plastics and there are no well-
established manufacture buy-back type programs to incentivize and 
facilitate local or regional composting and recycling to turn PLA back 
into PLA.
    The third commenter noted that the impacts of interest for the 
presence of biopolymers are on (1) the reclamation process and (2) on 
the appearance and functionality of the recycled PET and HDPE plastic 
products. The commenter then provided technical detail on the 
characteristics of biobased polymers and PET and HDPE to illustrate the 
reasons why such recycling incompatibility exists. This commenter then 
made the following conclusions: (1) Biopolymers are unlikely to justify 
an independent recycling business any time soon; (2) Biopolymers could 
be a technical nuisance to HDPE reclaimers, creating a yield loss with 
some economic cost; (3) Biopolymers could be a technical problem for 
PET reclaimers, creating degraded PET product quality and serious 
economic cost; (4) Biopolymers may be an opportunity for current 
reclaimers if the value exceeds costs and the presence does not disrupt 
current operations. Until critical mass is achieved, biopolymers will 
likely represent some level of cost and technical challenges to 
reclaimers and must pay their own way in collection, sorting, and 
processing. The third commenter stated that biopolymers should target 
product applications not currently included for recycling. Some 
biopolymers are targeted for packaging applications that are not 
typically recycled, such as food storage containers, bowls, and blister 
packaging.

[[Page 27984]]

These packages may become included with bales of bottles destined for 
recycling. Some parties have advocated the use of biopolymers for 
packaging applications such as juice and other beverage containers that 
are frequently recycled. As such, the impact of the USDA program on 
existing recycling streams and programs needs to be considered.
    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 (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.
    Comment: One commenter stated that to be successfully recycled a 
significant critical mass must be reached and that many resins, 
including various biopolymers, are not and are not likely soon to be 
present in sufficient quantities to justify free-standing recycling. 
The commenter believes that each resin must be self-supporting and not 
rely on subsidy from other resins for successful recycling. According 
to the commenter, although PVC is normally removed from the PET recycle 
stream as a matter of course, considerable development would be needed 
to make this possibility a working reality for other polymer bottles. 
If the ``other'' polymer, be it a biopolymer or petroleum-derived 
polymer, is not removed, then the impacts of potential contamination 
must be considered. Like many variants in the recycling stream, the 
effects of inclusion of ``other'' resins starts as a nuisance, rises to 
a problem with higher levels of occurrence, and finally becomes an 
opportunity when critical mass is achieved.
    Response: As discussed in the response to the previous comment, 
USDA recognizes the challenges presented to the plastic resin recycling 
industry by the increased use of biopolymers. USDA will post relevant 
information on the BioPreferred Web site to assist manufacturers, 
purchasers, and users become aware of the potential impacts and the 
preferred disposable methods for biopolymer-based products.
    Comment: One commenter made several recommendations on how USDA 
should address recycling in the purchase of biobased packaging 
materials.
    First, the commenter recommended that USDA stress that it is not 
requiring procuring agencies to limit their choices to biopolymer-based 
packaging that is incompatible with current reclamation. The commenter 
believes that to do so is consistent with other guidance USDA provides 
with regard to other ``green'' programs.
    Second, the commenter also recommended that, beyond the life cycle 
of the product itself, USDA ask agencies to consider the impact of the 
introduction of a new or non-traditional polymer for a specific 
application on existing recycling streams. The commenter believes that 
containers being recycled are as valuable to sustainability as 
containers being made of renewable material.
    Third, for the reason stated above, the commenter further asked 
that USDA establish sustainable solid waste management (i.e., 
recycling) as one of the product performance standards for procuring 
agencies to request information on and consider. The commenter 
considers that the definition of sustainable solid waste management 
must include the economic ability of items to be processed for 
recycling and sold profitably. Similarly, an item that meets 
sustainable solid waste management criteria must not significantly 
degrade the ongoing, successful recycling of other items. In closing, 
the commenter stated that packaging material should be selected if it 
meets the functional and aesthetic requirements for the intended 
application, is commercially available and competitively priced, and 
does not disrupt existing, sustainable solid waste management programs.
    Response: While USDA is concerned with all aspects of the 
BioPreferred Program, its statutory authority does not extend to 
include regulating the disposal, recovery, or recycling of biobased 
products. USDA encourages Federal procuring agencies to consider the 
impact that proper disposal of biobased products may have when they

[[Page 27985]]

are making decisions on the purchase of such products. As discussed in 
the previous responses, USDA will attempt to provide information on the 
disposal of biobased products to procuring agencies via its 
BioPreferred Web site.
Exemptions
    Comment: One commenter requested that the rule reflect exemptions 
for all items used in products and systems designed or procured for 
combat or combat-related missions and that this exemption be extended 
to all services and products contracted for combat or combat-related 
missions. The commenter pointed out that USDA has stated that it is 
inappropriate to apply the preferred procurement requirement unless 
Department of Defense (DoD) has documented that such products can meet 
the performance requirements for such equipment and are available in 
sufficient supply to meet domestic and overseas deployment needs. 
According to the commenter, their experiences to date have reinforced 
that it is not practical at this time to conduct the testing and 
evaluation necessary for such performance documentation for all 
products used in combat. The commenter therefore recommended that the 
rule continue to reflect or include exemptions for all items used in 
products and systems designed or procured for combat or combat-related 
missions in sections 2902.37, 2902.39, 2902.40, and 2902.42. Sections 
2902.36, 2902.38, 2902.41, 2902.43, 2902.44, and 2902.45 may at some 
future time be found to require a combat exemption for a specialized 
use we have not been able to determine at this time. The commenter 
suggested that the goals of the biobased preference program are better 
served if the focus in DoD is on product used for more conventional 
purposes (similar to commercially available items), rather than 
extending the requirements to combat uses. The commenter stated that 
DoD is being very proactive in encouraging the use of bio-based 
products through both policy and research and development investments 
related to combat uses, however DoD is not in a position to support 
USDA selection of materials at this time.
    Response: USDA has discussed, at length, with DoD the need for 
exempting from preferred procurement items whose products are used in 
combat or combat-related situations. This discussion has included 
whether there is a need for an exemption and, if so, whether an 
exemption should be on an item-by-item basis or whether a ``blanket'' 
exemption should be implemented. After such discussions, USDA is 
exempting from preferred procurement all items used in products or 
systems designed or procured for combat or combat-related missions. The 
exemption is stated in the Guidelines (subpart A) rather than under 
each item designation. USDA believes it is inappropriate to apply the 
biobased purchasing requirement to tactical equipment at this time. 
However, USDA reserves the right to withdraw such exemptions, on an 
item-by-item basis, as biobased products are demonstrated to meet all 
of the performance requirements of DoD in tactical situations.
    Comment: Two commenters stated that the proposed exemptions for 
critical applications are unnecessary given the provisions of the 
Guidelines, noting that no product, biobased or not, should be used in 
any critical application if it does not meet performance requirements. 
The commenter is concerned that proposing an exemption that limits the 
use of biobased products to ``more conventional applications'' implies 
that biobased products are inferior in their performance 
characteristics to the incumbent product. According to the commenter, 
not only is this not the case, but it sends the wrong message regarding 
the potential benefits of and uses for biobased products. The 
commenters note that they are aware of applications in the clothing 
(military uniforms and other clothing) and de-icers (airport runways) 
where the introduction of a biobased ingredient into these products 
could result in not only equal performance but potentially enhanced 
performance. The commenters state that performance testing is currently 
in progress to support the intended uses for these products. 
Recognizing that the biobased products industry is in its infancy, the 
commenters believe that proposing exemptions for critical performance 
applications because there is a current lack of performance testing 
data to support some of these applications is both unnecessary, as 
discussed above, and counter to the intent of the Farm Bill of using 
federal procurement to pull biobased products into the marketplace.
    Response: USDA agrees with the commenters that providing exemptions 
could imply that biobased products are inferior to non-biobased 
products. USDA can only emphasize that these exemptions are not 
intended to convey such meaning. USDA points out, however, that the 
statute does allow agencies the ability to not purchase a biobased 
product if it does not meet applicable performance standards. Because 
so many biobased products are in their infancy, more effort is required 
on the part of their manufacturers to demonstrate that the biobased 
products perform as well as their non-biobased counterparts, whether in 
conventional or non-conventional applications.
    USDA also agrees that all Federal agencies have the same ``off 
ramps'' available to them in determining whether or not to purchase 
biobased products within a designated item. USDA has received repeated 
requests from both DoD and NASA for exemptions. DoD is particularly 
concerned about the use of biobased products in combat or combat-
related situations and NASA about the use of any biobased product in 
critical mission areas. USDA has reached agreement with these agencies 
to provide ``blanket'' exemptions for both NASA and DoD.
    USDA recognizes that such blanket exemptions could discourage 
manufacturers from developing biobased products for these two 
``markets.'' However, if manufacturers of biobased products can 
demonstrate to the satisfaction of these two agencies that biobased 
products can meet all of their concerns, USDA would reconsider such 
exemptions on an item-by-item basis.
Biobased Content Testing
    Comment: One commenter recommended that the ASTM active standard 
06866-06 (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.
Incidental Funding
    Comment: One commenter noted that under a separate rulemaking USDA 
clarified that the procurement guidelines do not apply to purchases of 
designated items that are unrelated to or incidental to Federal 
funding. The commenter stated that ``incidental to federal funding'' 
should be defined or clarified. According to the commenter, because the 
Energy Policy Act of 2005 extended the biobased procurement preference 
program applicability to contractors of the federal government, the 
question of what constitutes an

[[Page 27986]]

incidental purchase becomes important and could benefit from additional 
clarification, either through regulations or guidance, to ensure 
federal agencies take a consistent approach. This area seems inherently 
open to a range of interpretation. For example, one could logically 
conclude that in a contract that requires submission of a report in 
paper format, the paper and the recycled material content of the paper 
would be incidental to the purpose of the contract (i.e., the reporting 
effort). However, the Federal Acquisition Regulations (FAR) actually 
contains a specific contract clause, 52.204-4, to ``encourage'' 
contractors to submit paper documents, such as offers, letters, or 
reports, printed or copied double-sided on 30 percent post-consumer 
recycled content paper. The commenter then provided other examples, 
which were identified to them by the Office of the Federal 
Environmental Executive.
    In conclusion, the commenter recommended that USDA provide some 
additional regulatory language indicating when procurement is 
considered incidental to federal funding. The commenter offered the 
following example. Unless a material procurement meets all three of the 
following tests it would be considered incidental to the purpose of the 
contract: (1) The biobased material item is ultimately delivered to the 
federal government, or is consumed on the government facility as part 
of performing the contract; (2) The biobased material is not a 
subcomponent of a commercially available manufactured item (for 
example, the hydraulic fluid provided in a piece of equipment) unless 
the industry provides for procuring the item with a biobased component 
option; and (3) The presence or absence of the biobased material can 
reasonably be determined from technical data sheets or other available 
product information.
    Response: The definition of ``procuring agency'' in FSRIA section 
9001, as amended by the Energy Policy Act of 2005, makes it clear that 
the requirements of section 9002 apply to ``indirect purchases'' (i.e., 
purchases by contractors). However, the requirements to purchase 
biobased products do not apply to such purchases if they are unrelated 
to or incidental to the purpose of the Federal contract. For example, 
when a construction contractor purchases hydraulic fluid for 
maintenance service of construction equipment being used in the 
performance of a Federal building construction contract, that purchase 
is incidental to the purpose of the construction contract. The 
hydraulic fluid purchase would not be subject to the requirements of 
section 9002 or the guidelines, even though some of the monies received 
under the contract might be used to finance the purchase. USDA issued 
an Interim Final Rule on July 27, 2006 (71 FR 42572) amending the 
Guidelines at 7 CFR part 2902 to clarify that incidental purchases are 
excepted. Agencies may, however, encourage contractors to investigate 
biobased products in order to further develop markets for these 
products.
Need for Program
    Comment: One commenter questioned the need for ``another mandatory 
preference program.'' According to the commenter, the proposed rule is 
``diametrically opposed'' to the Federal Acquisition Reform Act, which 
is supposed to simplify the Government acquisition process. The 
commenter concludes that ``unless the manufacturers and vendors of the 
items listed in the proposed rule can price them competitively (since 
unreasonable price is an exception to the rule), no [contracting 
officer] worth their weight will give the program a second look.''
    Response: USDA respectfully disagrees with the commenter's 
assessment of the need and possible outcome of the BioPreferred 
Program. The Congressional intent in establishing the statutory 
requirements of section 9002 were clearly spelled out in section 9002 
and the subsequent Guidelines. The BioPreferred Program is not intended 
to make Federal procurement more complicated, only to ensure that 
procuring agencies give preference to biobased products that meet the 
cost, performance, and availability criteria. USDA is confident that 
manufacturers of biobased products will strive to develop and market 
products that meet these criteria, including cost competitive biobased 
products.
Qualifying Products and Country of Origin
    Comment: One commenter expressed concern about the inability to 
verify that feedstocks (e.g., palm or palm kernel oil or tallows) used 
in surfactants originate from domestic sources or from designated 
countries. According to the commenter, the major sources of palm and 
palm kernel oil are Malaysia and the Philippines, neither of which is 
on the FAR list of designated countries and, to their knowledge, there 
is no production of palm or palm kernel oil in the U.S. or designated 
countries. Therefore, USDA should not assume feedstocks for biobased 
products are produced in the U.S. or in FAR-designated countries. The 
commenter, in referring to the inability of the ASTM D6866 to determine 
the country of origin of feedstock, stated that feedstock manufacturers 
will need to certify that the biobased material is produced in the U.S. 
or in FAR designated countries, and thus is a ``qualifying feedstock,'' 
and USDA will have to develop a monitoring process to ensure the 
accuracy of this self-certification.
    Response: The commenter is correct in stating that manufacturers 
will need to self-certify that the biobased material in their 
qualifying products is produced in the U.S. or in FAR-designated 
countries. Manufacturers will be required to self-certify that their 
products meet the minimum biobased content for the designated item 
under which their product falls and that the product is produced from 
qualifying feedstock. USDA plans to develop an audit program to monitor 
compliance with both self-certifications.
Benefits of Rule Not Realized
    Comment: One commenter stated that because most surfactants are 
produced using feedstocks that are not grown in the U.S. or in FAR-
designated countries and because substitution of petrochemical-based 
surfactants such as LAS for biobased surfactants does not necessarily 
result in lower energy requirements, the proposed rule will neither 
provide the benefits of increasing domestic production of biobased 
products nor enhance U.S. energy security.
    Response: USDA is aware that not all biobased products within every 
designated item will yield across-the-board gains in meeting the goals 
of the BioPreferred Program. The manufacture and use of some biobased 
products may result in significant reductions in the use of petroleum-
derived feedstocks, thus resulting in an ``energy'' savings. The 
products addressed by the commenter may not yield these savings. 
However, USDA believes that the designation of items for preferred 
procurement will provide an incentive for manufacturers to research and 
develop biobased products that will qualify for the procurement 
preference. As the markets for additional biobased products develop, 
there will be added motivation for producers of feedstock materials 
(such as surfactants) to develop qualifying materials.

Item Specific Comments

Bathroom and Spa Cleaners (Formerly Bath and Tile Cleaners)
    Comment: One commenter, in referring to the proposal statement 
concerning the need for Federal

[[Page 27987]]

agencies to compare the cradle-to-grave impacts of the manufacture, 
use, and disposal of biobased and non-biobased products, pointed out 
that cradle-to-grave assessments of petrochemical- and oleochemical-
based (biobased) surfactants (cleaning agents) used in this item have 
been conducted using life-cycle inventory and risk assessment 
methodologies (Pittinger et al., 1993). The commenter also referred to 
other, more extensive studies conducted in Europe. The commenter 
pointed out that these assessments found no consistent advantage for 
biobased versus non-biobased feedstock sources because all surfactants 
consume energy and raw materials in production and transportation and 
all release environmental emissions. The commenter then stated that 
risk assessments found no advantage to oleochemical feedstocks because 
these risk assessments demonstrate low environmental and health risk 
for the major surfactants and no major differences in the structures of 
the surfactants that can be produced with either oleochemical or 
petrochemical feedstocks, and thus no difference in biodegradation, 
ecotoxicity, or environmental safety.
    A second commenter expressed concern that the applicable life-cycle 
studies which demonstrate no clear advantage for cleaning product 
ingredients derived from renewable resources were not referenced and 
recommended that these studies be considered for inclusion.
    Response: As discussed in the response to the previous comment, 
USDA recognizes that the benefits of various biobased products are not 
the same. USDA has adopted the BEES life-cycle analysis as a means of 
providing purchasing agencies with information on the potential 
benefits and impacts of products within designated items. USDA will 
also post on the BioPreferred Web site any additional life-cycle 
studies that are identified. However, USDA has a statutory requirement 
to designate items for preferred procurement even though the life-cycle 
benefits of certain feedstock materials (such as surfactants) may be 
neutral or even less positive for some aspects of the analysis compared 
to petroleum-based products.
    Comment: One commenter recommended that the following two standards 
developed by ASTM International be included in the ruling--D5343-061, 
Guide for Evaluating Cleaning Performance of Ceramic Tile Cleaners and 
D4488-951, Guide for Testing Cleaning Performance of Products Intended 
for Use on Resilient Flooring and Washable Walls.
    Response: USDA will add these two ASTM standards to the list of 
performance standards identified on the BioPreferred Web site as 
applicable to the bath and tile cleaners designated item.
    Comment: One commenter was concerned that USDA had overlooked many 
bath and tile cleaners and referred to a California Air Resources Board 
(CARB) survey which identified 338 tile cleaners sold in California. 
The commenter was very concerned that USDA's data collection methods 
are deficient and recommended that USDA conduct a very thorough 
evaluation of tile cleaners before finalizing the designation of 
biobased products. 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 for these products.
    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 16 manufacturers of biobased products within this item, with 
29 biobased products being marketed. The range of biobased contents 
among the eight tested products is from 16 percent to 100 percent.
    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 was concerned that not all of the products 
identified in the background information were appropriate to the 
definition of bath and tile cleaners and recommended that the category 
be clearly defined and restricted to bath and tile cleaners only. 
Products identified by the commenter were one described as a 
``(product) that eliminates the need to add chemicals to hot tub and 
spa water'' and four described as toilet bowl cleaners.
    Response: USDA acknowledges that some of the products listed in 
this item may not appear to be traditional ``bath and tile cleaners,'' 
as the category was described at proposal. After re-examining the 
products associated with this item, USDA believes that this group of 
products is better described as ``bathroom and spa cleaners.'' By 
defining this group of products as ``bathroom and spa cleaners,'' the 
four toilet bowl products identified by the commenter are more 
recognizably included in this item. With regard to the product referred 
to by the commenter as one that ``eliminates the need to add chemicals 
to hot tub and spa water,'' USDA notes that this product is intended to 
prevent residue buildup, a function of the eliminated chemicals. It is 
USDA's view that products that reduce the amount of cleaning required 
(e.g., by preventing buildup of residue) are properly included in this 
item.
    On a general note, USDA points out that the manufacturers of the 
various products evaluated for each item decide where and how their 
products are marketed. Thus, if a manufacturer chooses to submit a 
product under a given item during the designation process for that 
item, USDA generally accepts that the manufacturer markets that product 
under that item. Ultimately, it is the responsibility of the purchasers 
to decide whether a given product will meet their needs.
    Comment: One commenter recommended that this item be subdivided 
into at least two subcategories. According to the commenter, the 
formulation, concentration, product form, and other attributes of any 
product will be dependent on intended use and should be categorized as 
such. Therefore, the commenter recommended that ``General Purpose'' 
cleaners not be considered under this proposed rule because of their 
use in many cleaning scenarios.
    Response: In considering the commenter's request to subcategorize

[[Page 27988]]

this item, USDA points out that this item (renamed ``bathroom and spa 
cleaners'' as discussed in the previous response) covers a wide variety 
of surfaces to be cleaned. Many products that fall within this item are 
designed to clean a wide variety of surfaces, while others are designed 
to clean more specific types of surfaces (e.g., fiberglass shower 
stalls). In addition, the range of biobased contents for all of the 
tested products (with the exception of the one product with a tested 
biobased content of 16 percent) is from 77 to 100 percent. USDA sees 
little benefit to subcategorizing this item when the proposed minimum 
biobased content of 74 percent (77 percent minus the 3 percentage 
points to account for test method variability) will allow all but one 
of the tested products to participate in the preferred procurement 
program. Therefore, USDA has decided not to subcategorize the item at 
this time. As additional information on products within this item is 
obtained, USDA will revisit the commenter's suggestion to subcategorize 
this item.
Clothing Products
    Comment: Two commenters supported the proposed minimum biobased 
content of 6 percent for this item, stating that this minimum biobased 
content will help stimulate the continued development of biobased 
clothing products, which is still in a development stage as evidenced 
by the identification of only 3 manufacturers and 5 individual biobased 
products within this item. Both commenters suggested that obtaining 
more data for clothing products will help USDA to subcategorize this 
item and to set minimum biobased contents on a subcategory level.
    Response: USDA thanks the commenters for their comments and their 
interest in the BioPreferred Program. As discussed earlier, USDA has 
decided to withdraw the clothing products item from this rulemaking. 
USDA will continue to gather data on biobased clothing products as more 
products are developed. When USDA obtains adequate data to support the 
designation of clothing products, to evaluate the need for 
subcategories with the item, and to establish the appropriate minimum 
biobased content for the item, another proposal notice will be 
published.
General Purpose De-Icers (Formerly De-Icers)
    Comment: One commenter stated that USDA's proposal to set the 
minimum biobased content for de-icer products is not appropriate at 
this time. The commenter noted that USDA defined de-icers as ``agents 
that aid in the removal of snow and ice.'' According to the commenter, 
because of their different applications, higher performance de-icers 
are formulated to meet very specific performance requirements. These 
formulations are often based on performance standards, not only to de-
ice, but also to meet other safety and equipment related needs. As 
such, these higher performance de-icers are usually blends of 
materials. The commenter concluded by stating that setting a minimum 
biobased content at 97 percent (essentially a 100 percent biobased 
product material) will exclude many applications for de-icers that 
contain or will contain biobased materials and products.
    Response: USDA has revised the name of this item to clearly 
indicate that products that fall within this item are de-icers that are 
used in ``general purpose applications'' and not in specialized 
applications, such as the de-icing of airplanes and airport runways. To 
make the current designated item clearer in its intended coverage, USDA 
has added ``general purpose'' to the designated item name and 
references general purpose applications in the definition.
    USDA has also revised the minimum biobased content for this item 
based on the receipt of additional biobased content data since 
proposal. The biobased contents of the sampled products are now 76, 96, 
100, 100, and 100 percent. There is a significant break in the data 
between the 76 percent and the 96 percent products. USDA investigated 
the 76 percent product but did not find any performance or 
applicability claims that would justify creating a subcategory or 
setting the minimum biobased content based on that product. USDA is, 
therefore, setting the minimum biobased content for this item at 93 
percent, rather than the 97 percent that was proposed. As noted earlier 
in this preamble, as USDA obtains more information on the biobased 
contents of other general purpose de-icer products, USDA will evaluate 
whether or not to revise the minimum biobased content for general 
purpose de-icers and, if appropriate, propose a change in the minimum 
biobased content.
    USDA agrees with the commenter that de-icers used to de-ice 
airplanes and airport runways are specialized de-icers and should not 
be grouped with general purpose de-icers. As noted above, USDA is 
designating this item under today's rulemaking as ``general purpose de-
icers'' and is specifically excluding from this item at this time de-
icer products used to de-ice airplanes or airport runways. As suggested 
by the commenter, USDA will consider creating at a later date one or 
more subcategories within this item to address unique performance 
applications as information on de-icer products designed for those 
applications is available. If and when USDA designates specialized de-
icers for preferred procurement, USDA will revise this item as 
necessary, which may require renaming the item and creating specific 
categories to cover general purpose de-icers and one or more 
subcategories, as needed, to cover specialized de-icers.
    Lastly, USDA has revised the definition of de-icers to clarify that 
the item is referring to chemical de-icers, which can include such 
products as salts and fluids (e.g., alcohols). The item does not 
include mechanical methods (e.g., scraping) or methods that involve the 
application of heat (e.g., electric heating elements buried underneath 
surfaces).
Durable Plastic Films
    Comment: One commenter stated that the definition of durable 
plastic films is vague and needs clarification.
    Response: USDA reviewed the definition of the durable films item 
and the products intended to fall within the item and those that fall 
within non-durable films, an item proposed for designation for 
preferred procurement under another rulemaking on August 17, 2006 
(Round 3, 71 FR 47590). USDA has decided to combine these two proposed 
items into one item named ``films'' with a subcategory for semi-durable 
films and a subcategory for non-durable films. The films designated 
item is included in the Round 3 final rulemaking. The key 
differentiation between the non-durable films and the semi-durable 
films subcategories is that the former are products that are designed 
and intended for single use, while the latter are designed and intended 
for reuse. USDA has added this ``re-use'' characteristic to the 
definition of semi-durable film.
    Finally, USDA has dropped ``plastic'' from the name of this item. 
In the proposal notice for this item, this item was referred to as both 
``durable films'' and ``durable plastic films.'' The intent was not to 
limit this item to ``durable plastic films.'' Therefore, USDA has 
dropped ``plastic'' from the name of this item.
    Comment: One commenter stated that durable (plastic) films, which 
overlaps with the EPA-designated recovered content product: Plastic 
trash bags, is overly broad and needs more subcategories, similar to 
EPA's CPG

[[Page 27989]]

program. The commenter stated that this was needed because the minimum 
biobased content was set based on the testing of two products, but that 
the appropriate biobased content must be taken into account to ensure 
its performance and durability.
    Two other commenters also stated that USDA needs to establish 
subcategories first and then establish a minimum biobased content for 
each of these subcategories. These two commenters were also concerned 
about the establishment of a minimum biobased content based on only two 
samples, which the commenters do not believe is representative of the 
many applications of the products within this item. The commenters 
stated that this category covers many applications and the selection of 
specific polymers used to make these films is very dependent on 
performance requirements for the specific application. The commenters 
pointed out as an example that durable plastic films are used for 
higher performance applications such as packaging for food and to 
achieve these performance requirements, durable films are often made 
from composites or layers of polymer films in order to meet the 
required barrier properties, resulting in multi-ingredient, multi-
layered films. The commenters believe that setting a high minimum 
biobased content such as 61 percent will exclude these higher 
performance applications for the biobased polymers that will be used in 
these applications and that the minimum biobased content for some of 
these subcategories will be substantially lower than the one USDA is 
proposing. Therefore, the commenters believe that USDA's proposal to 
set the minimum biobased content for durable plastic films is not 
appropriate at this time.
    Further, one commenter stated that USDA should not be setting, at 
this time, a minimum biobased content level for a product category as 
complex and diverse as durable plastic films. The commenter stated that 
USDA needs to establish appropriate subcategories for durable plastic 
films and then establish minimum biobased contents for each of these 
subcategories. The other option, according to this commenter, is to 
significantly lower the minimum biobased content level so higher 
performance films that contain biobased polymers can be considered for 
preferential procurement.
    Response: USDA appreciates the potential complexity of the various 
products that this item covers, as described by the commenters, and, as 
discussed in the previous response, has established two subcategories 
within the films item.
Firearm Lubricants
    Comment: One commenter recommended that USDA set two content levels 
for this item, one for general purpose and one for cold weather 
applications. The commenter stated that information in the preamble 
indicated that these two products had different formulations. The 
commenter also referred to the statute under which Federal agencies are 
to purchase USDA-designated biobased products containing the highest 
percentage of biobased products practicable. According to the 
commenter, it follows that USDA should recommend minimum biobased 
contents that are the highest practicable and, for this item, USDA 
should therefore either recommend a higher minimum biobased content or 
recommend multiple content levels based on differences in product usage 
or other characteristics.
    Response: USDA agrees with the commenter that this item is a likely 
candidate for subcategorization. However, as discussed earlier in this 
preamble, USDA does not have sufficient information related to product 
formulation and performance to justify subcategorization at this time. 
Also, because only one manufacturer of a product that is described as a 
cold weather lubricant has been identified, the effective procurement 
date for that subcategory, if sufficient data were available to justify 
creating a subcategory, would be deferred until at least one additional 
manufacturer is identified. USDA will continue to gather information 
for this item and will create subcategories within the item in a future 
rulemaking if sufficient justification can be obtained.
Laundry Products
    Comment: One commenter, in referring to the proposal statement 
concerning the need for Federal agencies to compare the cradle-to-grave 
impacts of the manufacture, use, and disposal of biobased and non-
biobased products, pointed out that cradle-to-grave assessments of 
petrochemical and oleochemical-based (biobased) surfactants (cleaning 
agents) used in this item have been conducted using life-cycle 
inventory and risk assessment methodologies (Pittinger et al., 1993). 
The commenter also referred to other, more extensive studies conducted 
in Europe. The commenter pointed out that these assessments found no 
consistent advantage for biobased versus non-biobased feedstock sources 
because all surfactants consume energy and raw materials in production 
and transportation and all release environmental emissions. The 
commenter then stated that risk assessments found no advantage to 
oleochemical feedstocks because these risk assessments demonstrate low 
environmental and health risk for the major surfactants and no major 
differences in the structures of the surfactants that can be produced 
with either oleochemical or petrochemical feedstocks, and thus no 
difference in biodegradation, ecotoxicity, or environmental safety.
    Response: This commenter's concerns have been addressed by USDA in 
the section of this preamble that presents comments and responses 
related to the designated item for bathroom and spa cleaners.
    Comment: One commenter recommended that the statement referring to 
the ``* * * skin-irritating residues and * * * toxic chemicals'' in the 
definition of this item be omitted from the ruling, as this statement 
has no bearing on the final ruling.
    Response: USDA agrees with the commenter that the referenced 
statement is not needed in the rulemaking language and has removed it 
from the definition.
    Comment: One commenter recommended the following ASTM guides be 
included in the ruling: D2960-51, Guide for Controlled Laundering Test 
Using Naturally Soiled Fabrics and Household Appliances; D5237-051, 
Guide for Evaluating Fabric Softeners; and D5548-0051, Guide for 
Evaluating Color Transfer or Color Loss of Dyed Fabrics in Laundering. 
The commenter also recommended that the American Home Appliance 
Manufacturers standards be included. According to the commenter, these 
ASTM standards are designed, approved, and used by laundry product 
manufacturers to evaluate product performance.
    Response: USDA thanks the commenter for their input to the 
designation process and will add the information provided by the 
commenter to the list of test methods and performance standards for 
laundry products on the BioPreferred Web site.
    Comment: One commenter recommended that USDA subcategorize laundry 
products by each of the product descriptions--(1) Laundry detergents, 
(2) bleach, (3) starch, (4) stain remover, (5) fabric softeners, etc. 
According to the commenter, the proposed subcategories of ``general 
purpose'' products and ``pretreatment/spot removers'' do not accurately 
reflect the differences in formulations, product form, and intended use 
of the various laundry products. The commenter also

[[Page 27990]]

recommended that fabric softeners be divided into washer and dryer 
products because of the differences in delivery system (liquid 
penetration versus deposition through a heated tumbling dryer).
    Response: USDA agrees with the commenter that this item should be 
subcategorized and, based on current performance information, has 
retained the two proposed subcategories in the final rule. Under this 
rulemaking, USDA has created two subcategories: (1) Pretreatment/spot 
removers and (2) general purpose laundry products. USDA anticipates 
creating additional subcategories once sufficient information is 
obtained. USDA encourages the provision of additional information on 
other laundry products for which manufacturers believe additional 
subcategories should be developed.
    For the two subcategories being designated in this rulemaking, USDA 
is setting the minimum biobased contents as follows:
    For pretreatment/spot removers, USDA has 6 biobased content test 
results (11, 19, 49, 54, 54, and 83 percent). There are two significant 
breaks in the range of data, one between the 19 percent product and the 
49 percent product and another between the 54 percent product and the 
83 percent product. USDA found no product performance features to 
justify setting the minimum biobased content on the products with 11 
and 19 percent biobased content. USDA also chose not to set the minimum 
biobased content on the one product with 83 percent biobased content 
because doing so would significantly limit the available product 
choices for federal procuring agencies. Because the majority of the 
remaining products were clustered around the middle of the range, USDA 
is setting the minimum biobased content for the pretreatment/spot 
removers subcategory at 46 percent.
    For general purpose laundry products, four products were tested. 
Their biobased contents were 37, 39, 40, and 46 percent. USDA is 
setting the minimum biobased content for general purpose laundry 
products subcategory at 34 percent because the range of the data is 
narrow and there are no breaks in the data that would indicate that 
further subcategorization is justified.
    As additional information is obtained, USDA will revisit this item 
to determine whether the minimum biobased content for either 
subcategory should be changed or if additional subcategories should be 
developed.
    Additional information can be found in Chapter 3.0 of the Technical 
Support for Final Rule--Round 4 Designated Items, which can be found on 
the BioPreferred Web site.
    Comment: One commenter recommended that a more thorough industry 
investigation be conducted prior to the publication of a final rule by 
conducting more analyses on products not found in the initial 
investigation. The commenter stated that they were concerned that 
USDA's collection methods were deficient because so few of products 
formed the basis of the proposed rule. The commenter referred to two 
CARB surveys which identified 92 laundry detergents, 360 spot removers, 
56 prewash products, 68 brighteners, 47 detergent boosters, and 21 
fabric wash products for sale in the state of California alone. The 
commenter was very concerned that USDA's data collection methods are 
deficient and recommended that USDA conduct a very thorough evaluation 
of laundry products. The commenter also stated that the BEES and 
biobased contents obtained may not be representative of all products on 
the market, as only five products were evaluated for biobased content 
and one for BEES analysis. The commenter recommended that testing be 
performed on at least one proposed category to accurately reflect the 
market for these products.
    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 17 different manufacturers of biobased products within this 
item (including both subcategories), with 45 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. Even with the subcategorization 
of this item in the final designation, USDA does not know whether or 
not the biobased contents it has obtained are or are not 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 was concerned that not all of the products 
identified in the background information were appropriate to the 
definition of laundry products and recommended that the category be 
clearly defined and restricted to laundry products only. The commenter 
identified one product whose product's description states, ``(product) 
for all your soft household surfaces, closets and storage areas. It is 
all natural with light but long-lasting fragrance for freshness on your 
carpets, sofas, draperies, etc. It is excellent when used to freshen 
drawers and closets.''
    Response: USDA acknowledges that some of the products listed in 
this item may not appear to be traditional ``laundry products.'' The 
product referred to by the commenter is also described as a product 
that ``can be used as a fabric freshener when ironing.'' This product 
would not fall within the two subcategories being created under this 
rulemaking. However, if USDA were to create a ``fabric freshener'' 
subcategory under Laundry Products, such an item would be appropriately 
included.
    On a general note, as mentioned earlier in this preamble, USDA 
points out that the manufacturers of the various products evaluated for 
each item decide where and how their products are marketed. Thus, if a 
manufacturer chooses to submit a product under a given item during the 
designation process for that item, USDA generally accepts that the 
manufacturer markets that product under that item. Ultimately, it is 
the responsibility of the purchasers to decide whether a given product 
will meet their needs.
Metalworking Fluids (Formerly Cutting, Drilling, and Tapping Oils)
    Comment: One commenter recommended that USDA set two content levels 
for this item for various uses or viscosities. The commenter stated 
that information in the preamble and in the background information 
posted on the BioPreferred Web site indicated that the differences in 
biobased content reflected differences in use or viscosity. The 
commenter also referred to the statute under which Federal agencies are 
to purchase USDA-designated biobased products

[[Page 27991]]

containing the highest percentage of biobased products practicable. 
According to the commenter, it follows that USDA should recommend 
minimum biobased contents that are the highest practicable and, for 
this item, USDA should therefore either recommend a higher minimum 
biobased content or recommend multiple content levels based on 
differences in product usage or other characteristics.
    One commenter stated that some products originally included in the 
metalworking fluids item are sold ``neat,'' but are formulated to be 
emulsifiable and are intended to be mixed with water prior to use. The 
commenter, therefore, recommended that the definition be revised to use 
the following language: ``This item applies only to neat oils, not to 
water emulsions or products intended to be emulsified with water prior 
to use.''
    One commenter suggested that, based on the data in the background 
information, the minimum biobased content for proposed metalworking 
fluids item should be higher than the proposed 40 percent or that USDA 
establish multiple content levels reflecting differences in product 
use. Alternatively, the commenter suggested that USDA consider 
recommending a range, similar to the ranges the EPA recommends for 
recycled content products.
    Response: As a result of these comments received on the proposed 
cutting, drilling, and tapping oils item and the Round 2 proposed 
metalworking fluids item, USDA has combined the two proposed items into 
a single item with subcategories. The following paragraphs present 
USDA's rationale for this change.
    First, USDA notes that metalworking fluids are generally classified 
into four types: Straight oils, soluble oils (also called emulsified 
oils), semi-synthetic fluids, and synthetic fluids. (The source of 
these classifications came from the Occupational Safety and Health 
Administration's ``Metalworking Fluids: Safety and Health Best 
Practices'' Manual. See Appendix C in the document Technical Support 
for Final Rule--Round 4 Designated Items, which can be found on the 
BioPreferred Web site.) Of these, only straight oils are designed not 
to be diluted with water prior to use. To account for the four types of 
metalworking fluids, USDA has divided them into two groups of products. 
One group includes straight oils, which are used in metalworking 
operations where lubrication rather than cooling is the primary 
concern. Such metalworking operations include cutting, drilling, and 
tapping. The other group of products includes soluble, semi-synthetic, 
and synthetic oils that are formulated to be diluted with water prior 
to use.
    Second, USDA re-examined the products contained in each of the 
proposed items. Almost all of the products within the proposed cutting, 
drilling, and tapping oils item are straight oils designed to be used 
to perform multiple metalworking operations, including cutting, 
drilling, and/or tapping. (See Chapter 4.0 of the Technical Support for 
Final Rule--Round 4 Designated Items, which can be found on the 
BioPreferred Web site.) In other words, these straight oil metalworking 
fluids are inherently multipurpose straight oils. Their particular 
formulations are not directly related to their intended use. Therefore, 
USDA does not believe it is reasonable to try to further subcategorize 
these straight oil products based on various uses or formulation, 
including viscosity, as suggested by the commenter.
    USDA reviewed the products within the soluble, semi-synthetic, and 
synthetic oils group of products and agrees with the commenter's 
recommendation that these products be divided into two subcategories. 
Based on the variations in types of metal (e.g., steel versus aluminum) 
and processes (e.g., grinding versus cutting) that may be encountered 
in operations that use these metalworking fluids, USDA has divided 
soluble, semi-synthetic, and synthetic oils into two subcategories--
``high performance'' and ``general purpose.'' USDA believes that by 
establishing these two subcategories of soluble, semi-synthetic, and 
synthetic oils, qualifying biobased products will be available to cover 
the range of procuring agencies' needs.
    Third, USDA has set the minimum biobased contents for the three 
subcategories of metalworking fluids as follows. For the straight oils 
subcategory of metalworking fluids, USDA has biobased content data for 
12 products, as follows: 69, 76, 76, 78, 87, 89, 94, 94, 96, 98, 100, 
and 100 percent. Because the range of these values is fairly narrow and 
because there are no obvious breaks in the data, USDA set the minimum 
biobased content at 66 percent, based on the 69 percent biobased 
product. For the general purpose soluble, semi-synthetic, and synthetic 
oils subcategory of metalworking fluids, USDA has biobased content for 
14 products, as follows: 60, 66, 67, 67, 76, 77, 77, 79, 80, 84, 90, 
98, 98, and 100 percent. As with the straight oils subcategory, there 
were no readily identifiable breaks in the data that would indicate a 
need for further subcategorizing these products. Therefore, USDA has 
set the minimum biobased content for this subcategory at 57 percent, 
based on the 60 percent biobased product. For the high performance 
soluble, semi-synthetic, and synthetic oils subcategory of metalworking 
fluids, the minimum biobased content was set at 40 percent because both 
of the tested products have biobased contents of 43 percent.
Wood and Concrete Sealers
    Comment: One commenter stated that this item should be split into 
two categories--one for wood sealers and one for concrete sealers--and 
should use nomenclature, if possible, that conforms with that found in 
40 CFR part 59, National VOC Emission Standards for Architectural 
Coatings. According to the commenter, 40 CFR Part 59 defines 
``waterproofing sealer and treatment'' separately from ``wood 
preservative'' and also separately defines ``concrete protective 
coating.'' The commenter provided the following definitions:
    <bullet> Concrete protective coating means a high-build coating, 
formulated and recommended for application in a single coat over 
concrete, plaster, or other cementitious surfaces. These coatings are 
formulated to be primerless, one-coat systems that can be applied over 
form oils and/or uncured concrete. These coatings prevent splitting of 
concrete in freezing temperatures by providing long-term protection 
from water and chloride ion intrusion.
    <bullet> Waterproofing sealer and treatment means a coating 
formulated and recommended for application to a porous substrate for 
the primary purpose of preventing the penetration of water. Wood 
preservative means a coating formulated and recommended to protect 
exposed wood from decay or insect attack, registered with the EPA under 
the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136, 
et seq.).
    Typically, paint and sealing products are substrate-specific. 
Designating two substrates under one item increases the potential for 
confusion, complicates compliance with architectural coating VOC 
regulations, and has no advantage over designating them separately. 
When procuring architectural coatings, the commenter typically makes 
reference to commercial item descriptions based on Master Painter 
Institute (MPI) specifications. These specifications will typically 
address products intended for application to concrete substrates 
separately from products for application to wood. Biobased product 
vendors should be encouraged to conform any paint or sealant products 
to these specifications to facilitate purchasing. In

[[Page 27992]]

the commenter's experience, they would rarely apply a product to 
concrete solely for water resistance. More typically, sealers are 
applied that also provide resistance to oil and gasoline. The commenter 
also stated that, based on their experience, they would rarely apply a 
product to wood (e.g., to wood decking) that did not also confer slip 
resistance. This implies that procurement of the sealing products--as 
USDA is contemplating the definition--might not result in significant 
amounts of federal purchasing activity.
    Response: At proposal, USDA had biobased content data on products 
designed for sealing wood, concrete, or both. Specifically, the 
biobased content data showed wood sealers with tested biobased contents 
of 82, 91, and 91 percent; a concrete sealer with a biobased content of 
82 percent; and a wood and concrete sealer with a biobased content of 
82 percent. Based on this data, USDA proposed a minimum biobased 
content of 79 percent for the item.
    The products tested at proposal for their biobased contents were 
all formulated to work as penetrating liquids. Since proposal, USDA has 
obtained biobased content test results for several products formulated 
to work as membrane-type sealers and to be used for masonry substrates. 
The biobased contents for these products are 14, 22, 23, and 62 
percent. Given the apparent difference in biobased content between the 
two formulations of sealers, USDA has developed two subcategories 
within this item based on product formulation rather than on substrate. 
These two subcategories are: (1) penetrating liquids and (2) membrane 
concrete sealers.
    For the penetrating liquids subcategory, the current biobased 
content data points are 82, 82, 85, 88, and 91 percent. Because the 
range of these data points is very narrow and because three of the four 
data points are between 82 and 85 percent, USDA is setting a minimum 
biobased content of 79 percent for the penetrating liquids subcategory 
based on the 82 percent products.
    For the membrane concrete sealers, the biobased content data points 
are 14, 22, 23, and 62 percent. There is a significant break in the 
data between the 23 percent product and the 62 percent product. USDA 
investigated the 62 percent product but does not have sufficient 
product performance information to support further subcategorization. 
Because three of the four data points range from 14 percent to 23 
percent, and no further subcategorization can be supported, the minimum 
biobased content for the membrane concrete sealers subcategory is set 
at 11 percent.

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 
Federal agencies' usage within the eight 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 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 eight 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

[[Page 27993]]

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 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:

[[Page 27994]]

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.  2902.35 through 2902.42 to subpart B to read as 
follows:


Sec.  2902.35   Bathroom and spa cleaners.

    (a) Definition. Products that are designed to clean and/or prevent 
deposits on surfaces found in bathrooms and spas including, but not 
necessarily limited to, bath tubs and spas, shower stalls, shower 
doors, shower curtains, and bathroom walls, floors, doors, and counter 
and sink tops. Products in this item may be designed to be applied to a 
specific type of surface or to multiple surface types. They are 
available both in concentrated and ready-to-use forms.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 74 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 bathroom and spa 
cleaners. 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 
bathroom and spa cleaners.


Sec.  2902.36   Concrete and asphalt release fluids.

    (a) Definition. Products that are designed to provide a lubricating 
barrier between the composite surface materials (e.g., concrete or 
asphalt) and the container (e.g., wood or metal forms, truck beds, 
roller surfaces).
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 87 percent, which 
shall be based on the amount of qualifying biobased carbon in the 
product as a percent of the weight (mass) of the total organic carbon 
in the finished product.
    (c) Preference compliance date. No later than May 14, 2009, 
procuring agencies, in accordance with this part, will give a 
procurement preference for qualifying biobased concrete and asphalt 
release 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 concrete and asphalt release fluids.


Sec.  2902.37  General purpose de-icers.

    (a) Definition. Chemical products (e.g., salt, fluids) that are 
designed to aid in the removal of snow and/or ice, and/or in the 
prevention of the buildup of snow and/or ice, in general use 
applications by lowering the freezing point of water. Specialized de-
icer products, such as those used to de-ice aircraft and airport 
runways, are not included.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 93 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 general purpose de-
icers. 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 
general purpose de-icers.


Sec.  2902.38   Firearm lubricants.

    (a) Definition. Lubricants that are designed for use in firearms to 
reduce the friction and wear between the moving parts of a firearm, and 
to keep the weapon clean and prevent the formation of deposits that 
could cause the weapon to jam.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 49 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 firearm lubricants. 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 firearm 
lubricants.


Sec.  2902.39  Floor strippers.

    (a) Definition. Products that are formulated to loosen waxes, 
resins, or varnishes from floor surfaces. They can be in either liquid 
or gel form, and may also be used with or without mechanical 
assistance.
    (b) Minimum biobased content. The preferred procurement product 
must have a minimum biobased content of at least 78 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 floor strippers. 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 floor strippers.


Sec.  2902.40   Laundry products.

    (a) Definitions. (1) Products that are designed to clean, 
condition, or otherwise affect the quality of the laundered material. 
Such products include but are not limited to laundry detergents, 
bleach, stain removers, and fabric softeners.
    (2) Laundry products for which preferred procurement applies are:
    (i) Pretreatment/spot removers. These are laundry products 
specifically used to pretreat laundry to assist in the removal of spots 
and stains during laundering.
    (ii) General purpose laundry products. These are laundry products 
used for regular cleaning activities.
    (b) Minimum biobased content. The minimum biobased content 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 for the 
preferred procurement product are:
    (1) Pretreatment/spot removers--46 percent.
    (2) General purpose laundry products--34 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 laundry 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 laundry 
products.

[[Page 27995]]

Sec.  2902.41  Metalworking fluids.

    (a) Definition. (1) Fluids that are designed to provide cooling, 
lubrication, corrosion prevention, and reduced wear on the contact 
parts of machinery used for metalworking operations such as cutting, 
drilling, grinding, machining, and tapping.
    (2) Metalworking fluids for which preferred procurement applies 
are:
    (i) Straight oils. Metalworking fluids that are not diluted with 
water prior to use and are generally used for metalworking processes 
that require lubrication rather than cooling.
    (ii) General purpose soluble, semi-synthetic, and synthetic oils. 
Metalworking fluids formulated for use in a re-circulating fluid system 
to provide cooling, lubrication, and corrosion prevention when applied 
to metal feedstock during normal grinding and machining operations.
    (iii) High performance soluble, semi-synthetic, and synthetic oils. 
Metalworking fluids formulated for use in a re-circulating fluid system 
to provide cooling, lubrication, and corrosion prevention when applied 
to metal feedstock during grinding and machining operations involving 
unusually high temperatures or corrosion potential.
    (b) Minimum biobased content. The minimum biobased content 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 for the 
preferred procurement product are:
    (1) Straight oils--66 percent.
    (2) General purpose soluble, semi-synthetic, and synthetic oils--57 
percent.
    (3) High performance soluble, semi-synthetic, and synthetic oils--
40 percent.
    (c) Preference compliance date. (1) Straight oils. No later than 
May 14, 2009, procuring agencies, in accordance with this part, will 
give a procurement preference for qualifying biobased metalworking 
fluids--straight 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 metalworking fluids--straight oils.
    (2) General purpose soluble, semi-synthetic, and synthetic oils. No 
later than May 14, 2009, procuring agencies, in accordance with this 
part, will give a procurement preference for qualifying biobased 
metalworking fluids--general purpose soluble, semi-synthetic, and 
synthetic 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 metalworking fluids--general purpose soluble, semi-
synthetic, and synthetic oils.
    (3) High performance soluble, semi-synthetic, and synthetic oils. 
Determination of the preference compliance date for metalworking 
fluids--high performance soluble, semi-synthetic, and synthetic oils is 
deferred until USDA identifies two or more manufacturers of biobased 
products within this subcategory. At that time, USDA will publish a 
document in the Federal Register announcing that Federal agencies have 
one year from the date of publication to give procurement preference to 
biobased metalworking fluids--high performance soluble, semi-synthetic, 
and synthetic oils.


Sec.  2902.42  Wood and concrete sealers.

    (a) Definition. (1) Products that are penetrating liquids 
formulated to protect wood and/or concrete, including masonry and fiber 
cement siding, from damage caused by insects, moisture, and decaying 
fungi and to make surfaces water resistant.
    (2) Wood and concrete sealers for which preferred procurement 
applies are:
    (i) Penetrating liquids. Wood and concrete sealers that are 
formulated to penetrate the outer surface of the substrate.
    (ii) Membrane concrete sealers. Concrete sealers that are 
formulated to form a protective layer on the surface of the substrate.
    (b) Minimum biobased content. The minimum biobased content 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 for the 
preferred procurement product are:
    (1) Penetrating liquids--79 percent.
    (2) Membrane concrete sealers--11 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 wood and concrete 
sealers. 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 
wood and concrete sealers.

    Dated: May 2, 2008.
Harry Baumes,
Associate Director, Office of Energy Policy and New Uses, U.S. 
Department of Agriculture.
[FR Doc. E8-10116 Filed 5-13-08; 8:45 am]
BILLING CODE 3410-GL-P


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