27978 Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Rules and Regulations 

1At 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.’’ 

2Based on public comments received, and as 

explained in section IV of this preamble, this 

proposed item has been withdrawn from the final 

rule. 

3At 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.’’ 

4Based 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. 

5At 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. 

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. 

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: mduncan@oce.usda.gov; 

phone (202) 401–0461. Information 

regarding the Federal Procurement of 

Biobased Products (one part of the 

BioPreferred Program) is available on 

the Internet at http:// 

www.biopreferred.gov. 

SUPPLEMENTARY INFORMATION: The 

information presented in this preamble 

is organized as follows: 

I. Authority 

II. Background 

III. Summary of Changes 

IV. Discussion of Comments 

V. Regulatory Information 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Regulatory Flexibility Act (RFA) 

C. Executive Order 12630: Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

D. Executive Order 12988: Civil Justice 

Reform 

E. Executive Order 13132: Federalism 

F. Unfunded Mandates Reform Act of 1995 

G. Executive Order 12372: 

Intergovernmental Review of Federal 

Programs 

H. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

I. Paperwork Reduction Act 

J. Government Paperwork Elimination Act 

Compliance 

I. Authority 

These items, including their 

subcategories, are designated under the 

authority of section 9002 of the Farm 

Security and Rural Investment Act of 

2002 (FSRIA), 7 U.S.C. 8102 (referred to 

in this document as ‘‘section 9002’’). 

II. Background 

As part of the Federal Procurement of 

Biobased Products, USDA published on 

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. 

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 


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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, semisynthetic, 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, semisynthetic, 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 


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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 


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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. 


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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 opticaltype 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 


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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 biobased 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 deicers (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 


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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 FARdesignated 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-theboard 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 


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agencies to compare the cradle-to-grave 

impacts of the manufacture, use, and 

disposal of biobased and non-biobased 

products, pointed out that cradle-tograve assessments of petrochemical- and 

oleochemical-based (biobased) 

surfactants (cleaning agents) used in this 

item have been conducted using lifecycle 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 lifecycle 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 petroleumbased 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 reexamining 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 


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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 DeIcers) 

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 deicing 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 deicers’’ 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 nondurable 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 


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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 USDAdesignated 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-tograve assessments of petrochemical and 

oleochemical-based (biobased) 

surfactants (cleaning agents) used in this 

item have been conducted using lifecycle 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 


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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 USDAdesignated biobased products 


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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: 

• 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, onecoat 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. 

• 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 


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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 energybased 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 


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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 nonbiobased 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 nonbiobased 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. 

■ For the reasons stated in the preamble, 

the Department of Agriculture is 

amending 7 CFR chapter XXIX as 

follows: 


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CHAPTER XXIX—OFFICE OF ENERGY 

POLICY AND NEW USES, DEPARTMENT OF 

AGRICULTURE 

PART 2902—GUIDELINES FOR 

DESIGNATING BIOBASED PRODUCTS 

FOR FEDERAL PROCUREMENT 

■ 1. The authority citation for part 2902 

continues to read as follows: 

Authority: 7 U.S.C. 8102. 

■ 2. Add §§ 2902.35 through 2902.42 to 

subpart B to read as follows: 

§ 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. 

§ 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. 

§ 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 deicers. 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. 

§ 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. 

§ 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. 

§ 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. 


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§ 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, semisynthetic, 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, semisynthetic, 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, semisynthetic, and synthetic oils—57 

percent. 

(3) High performance soluble, semisynthetic, 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, semisynthetic, 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, semisynthetic, and synthetic oils. 

Determination of the preference 

compliance date for metalworking 

fluids—high performance soluble, semisynthetic, 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, semisynthetic, and synthetic oils. 

§ 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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