27958 Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Rules and Regulations 

1At proposal, this item was identified as 

‘‘biodegradable films.’’ Based on comments 

received, and as explained in this preamble, USDA 

has renamed this item as ‘‘films’’ and combined it 

with the proposed item ‘‘durable films’’ that was 

included in the October 11, 2006 Round 4 proposal 

(71 FR 59862). 

2At proposal, this item was identified as 

‘‘biodegradable cutlery.’’ Based on comments 

received, and as explained in this preamble, USDA 

has renamed this item as ‘‘disposable cutlery.’’ 

DEPARTMENT OF AGRICULTURE 

Office of Energy Policy and New Uses 

7 CFR Part 2902 

RIN 0503–AA31 

Designation of Biobased Items for 

Federal Procurement 

AGENCY: Office of Energy Policy and 

New Uses, USDA. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of 

Agriculture (USDA) is amending the 

guidelines for designating biobased 

products for Federal procurement, to 

add ten sections to designate items, 

including subcategories, within which 

biobased products will be afforded 

Federal procurement preference, as 

provided for under section 9002 of the 

Farm Security and Rural Investment Act 

of 2002. USDA also is establishing a 

minimum biobased content for each of 

these items and subcategories. 

DATES: This rule is effective June 13, 

2008. 

FOR FURTHER INFORMATION CONTACT: 

Marvin Duncan, USDA, Office of the 

Chief Economist, Office of Energy Policy 

and New Uses, Room 4059, South 

Building, 1400 Independence Avenue 

SW., MS–3815 Washington, DC 20250– 

3815; e-mail: mduncan@oce.usda.gov; 

phone (202) 401–0461. Information 

regarding the Federal Procurement of 

Biobased Products (one part of the 

BioPreferred Program) is available on 

the Internet at http:// 

www.biopreferred.gov. 

SUPPLEMENTARY INFORMATION: The 

information presented in this preamble 

is organized as follows: 

I. Authority 

II. Background 

III. Summary of Changes 

IV. Discussion of Comments 

V. Regulatory Information 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Regulatory Flexibility Act (RFA) 

C. Executive Order 12630: Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

D. Executive Order 12988: Civil Justice 

Reform 

E. Executive Order 13132: Federalism 

F. Unfunded Mandates Reform Act of 1995 

G. Executive Order 12372: 

Intergovernmental Review of Federal 

Programs 

H. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

I. Paperwork Reduction Act 

J. Government Paperwork Elimination Act 

Compliance 

I. Authority 

These items, including their 

subcategories, are designated under the 

authority of section 9002 of the Farm 

Security and Rural Investment Act of 

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

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

II. Background 

As part of the Federal Procurement of 

Biobased Products, USDA published on 

August 17, 2006, a proposed rule in the 

Federal Register (FR) for the purpose of 

designating a total of 10 items for the 

preferred procurement of biobased 

products by Federal agencies (referred 

hereafter in this FR notice as the 

‘‘preferred procurement program’’). This 

proposed rule can be found at 71 FR 

47590. This rulemaking is referred to in 

this preamble as Round 3 (RIN 0503– 

AA31). 

The Round 3 proposed rule proposed 

designating the following items, 

including their subcategories, for the 

preferred procurement program: 2-cycle 

engine oils; lip care products; nondurable films; 1 stationary equipment 

hydraulic fluids; disposable cutlery; 2

glass cleaners; greases, including food 

grade greases, multipurpose greases, rail 

track greases, truck greases, and greases 

not elsewhere specified as 

subcategories; dust suppressants; 

carpets; and carpet and upholstery 

cleaners. 

Today’s final rule designates the 

following 10 items, including 

subcategories, within which biobased 

products will be afforded Federal 

procurement preference: 2-cycle engine 

oils; lip care products; films, including 

semi-durable films and non-durable 

films as subcategories; stationary 

equipment hydraulic fluids; disposable 

cutlery; glass cleaners; greases, 

including food grade greases, 

multipurpose greases, rail track greases, 

truck greases, and greases not elsewhere 

specified as its subcategories; dust 

suppressants; carpets; and carpet and 

upholstery cleaners, including spot 

removers and general purpose cleaners 

as subcategories. USDA has determined 

that each of the items, including the 

subcategories within them, being 

designated under today’s rulemaking 

meets the necessary statutory 

requirements; that they are being 

produced with biobased products; and 

that their procurement will carry out the 

following objectives of section 9002: To 

improve demand for biobased products; 

to spur development of the industrial 

base through value-added agricultural 

processing and manufacturing in rural 

communities; and to enhance the 

Nation’s energy security by substituting 

biobased products for products derived 

from imported oil and natural gas. 

When USDA designates by 

rulemaking an item (a generic grouping 

of products) for preferred procurement 

under the BioPreferred Program, 

manufacturers of all products under the 

umbrella of that item that meet the 

requirements to qualify for preferred 

procurement can claim that status for 

their products. To qualify for preferred 

procurement, a product must be within 

a designated item and must contain at 

least the minimum biobased content 

established for the designated item. 

When the designation of specific items 

is finalized, USDA will invite the 

manufacturers of these qualifying 

products to post information on the 

product, contacts, and performance 

testing on its BioPreferred Web site, 

http://www.biopreferred.gov. Procuring 

agencies will be able to utilize this Web 

site as one tool to determine the 

availability of qualifying biobased 

products under a designated item. Once 

USDA designates an item, procuring 

agencies are required generally to 

purchase biobased products within 

these designated items, including their 

subcategories, where the purchase price 

of the procurement item exceeds 

$10,000 or where the quantity of such 

items or of functionally equivalent items 

purchased over the preceding fiscal year 

equaled $10,000 or more. 

Subcategorization. Most of the items 

USDA is considering for designation for 

preferred procurement cover a wide 

range of products. For some items, there 

are groups of products within the item 

that meet different markets and uses 

and/or different performance 

specifications. For example, within the 

designated item ‘‘hand cleaners and 

sanitizers,’’ some products are required 

to meet performance specifications for 

sanitizing, while other products do not 

need to meet these specifications. 

Where such subgroups, or subcategories, 

exist, USDA intends to create 

subcategories. Thus, for example, for the 

designated item ‘‘hand cleaners and 

sanitizers,’’ USDA determined that it 

was reasonable to create a ‘‘hand 

cleaner’’ subcategory and a ‘‘hand 

sanitizer’’ subcategory. Sanitizing 

specifications would be applicable to 

the later subcategory, but not the former. 


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In sum, USDA looks at the products 

within each item to evaluate whether 

there are groups of products within the 

item that meet different performance 

specifications and, where USDA finds 

this type of difference, it intends to 

create subcategories. 

For some items, however, USDA may 

not have sufficient information at the 

time of proposal to create subcategories 

within an item. For example, USDA 

may know that there are different 

performance specifications that de-icing 

products are required to meet, but it has 

only information on one type of de-icing 

product. In such instances, USDA may 

either designate the item without 

creating subcategories (i.e., defer the 

creation of subcategories) or designate 

one subcategory and defer designation 

of other subcategories within the item 

until additional information is obtained 

on products within these other 

subcategories. 

Within today’s rulemaking, USDA has 

created subcategories within three 

items—films, greases, and carpet and 

upholstery cleaners. For films, the 

subcategories are semi-durable films 

and non-durable films. For greases, the 

subcategories are: Food grade greases, 

multipurpose greases, rail track greases, 

truck greases, and greases not elsewhere 

specified. For carpet and upholstery 

cleaners, the subcategories are spot 

removers and general purpose cleaners. 

Minimum Biobased Contents. The 

minimum biobased contents being 

established with today’s rulemaking are 

based on products for which USDA has 

biobased content test data. In addition 

to considering the biobased content test 

data for each item, USDA also considers 

other factors when establishing the 

minimum biobased content. These other 

factors include: Public comments 

received on the proposed minimum 

biobased contents; product performance 

information to justify the inclusion of 

products at lower levels of biobased 

content; and the range, groupings, and 

breaks in the biobased content test data 

array. Consideration of this information 

allows USDA to establish minimum 

biobased contents on a broad set of 

factors to assist the Federal procurement 

community in its decision to purchase 

biobased products. 

USDA makes every effort to obtain 

biobased content test data on multiple 

products within each item. For most 

designated items, USDA has biobased 

content test data on more than one 

product within a designated item. 

However, USDA must rely on biobased 

product manufacturers to voluntarily 

submit product information and, in 

some cases, USDA has been able to 

obtain biobased content data for only a 

single product within a designated item. 

As USDA obtains additional data on the 

biobased contents for products within 

these ten designated items and their 

subcategories, USDA will evaluate 

whether the minimum biobased content 

for a designated item or subcategory will 

be revised. 

USDA anticipates that the minimum 

biobased content of an item or 

subcategory that is based on a single 

product is more likely to change as 

additional products in those items and 

subcategories are identified and tested. 

In today’s rulemaking, none of the 

minimum biobased contents are based 

on a single tested product. 

For all items and subcategories where 

additional information indicates that it 

is appropriate to revise a minimum 

biobased content established under 

today’s rulemaking, USDA will propose 

the change in a notice in the Federal 

Register to allow public comment on 

the proposed revised minimum 

biobased content. USDA will then 

consider the public comments and issue 

a final rulemaking on the minimum 

biobased content. 

Overlap with EPA’s Comprehensive 

Procurement Guideline program for 

recovered content products. Some of the 

products that are biobased items 

designated for preferred procurement 

may also be items the Environmental 

Protection Agency (EPA) has designated 

under the EPA’s Comprehensive 

Procurement Guideline (CPG) for 

Products Containing Recovered 

Materials. Where that occurs, an EPAdesignated recovered content product 

(also known as ‘‘recycled content 

products’’ or ‘‘EPA-designated 

products’’) has priority in Federal 

procurement over the qualifying 

biobased product as identified in 7 CFR 

2902.2. In situations where it believes 

there may be an overlap, USDA is 

asking manufacturers of qualifying 

biobased products to provide additional 

product and performance information to 

Federal agencies to assist them in 

determining whether the biobased 

products in question are, or are not, the 

same products for the same uses as the 

recovered content products. As this 

information becomes available, USDA 

will place it on the BioPreferred Web 

site with its catalog of qualifying 

biobased products. 

In cases where USDA believes an 

overlap with EPA-designated recovered 

content products may occur, 

manufacturers are being asked to 

indicate the various suggested uses of 

their product and the performance 

standards against which a particular 

product has been tested. In addition, 

depending on the type of biobased 

product, manufacturers are being asked 

to provide other types of information, 

such as whether the product contains 

petroleum-based components and 

whether the product contains recovered 

materials. Federal agencies may also ask 

manufacturers for information on a 

product’s biobased content and its 

profile against environmental and 

health measures and life-cycle costs (the 

Building for Environmental and 

Economic Sustainability (BEES) analysis 

or ASTM Standard D7075 for evaluating 

and reporting on environmental 

performance of biobased products). 

Such information will permit agencies 

to determine whether or not an overlap 

occurs. 

Section 6002 of RCRA requires a 

procuring agency procuring an item 

designated by EPA generally to procure 

such items composed of the highest 

percentage of recovered materials 

content practicable. However, a 

procuring agency may decide not to 

procure such an item based on a 

determination that the item fails to meet 

the reasonable performance standards or 

specifications of the procuring agency. 

An item with recovered materials 

content may not meet reasonable 

performance standards or specifications, 

for example, if the use of the item with 

recovered materials content would 

jeopardize the intended end use of the 

item. 

Where a biobased item is used for the 

same purposes and to meet the same 

Federal agency performance 

requirements as an EPA-designated 

recovered content product, the Federal 

agency must purchase the recovered 

content product. For example, if a 

biobased hydraulic fluid is to be used as 

a fluid in hydraulic systems and 

because ‘‘lubricating oils containing rerefined oil’’ has already been designated 

by EPA for that purpose, then the 

Federal agency must purchase the EPAdesignated recovered content product, 

‘‘lubricating oils containing re-refined 

oil.’’ If, on the other hand, that biobased 

hydraulic fluid is to be used to address 

a Federal agency’s certain 

environmental or health performance 

requirements that the EPA-designated 

recovered content product would not 

meet, then the biobased product should 

be given preference, subject to cost, 

availability, and performance. 

This final rule designates three items 

for preferred procurement for which 

there may be overlap with EPAdesignated recovered content products. 

These items are: (1) Films in the semidurable films subcategory, (2) stationary 

equipment hydraulic fluids and (3) 

carpets. Depending on how they are to 

be used, qualifying products under 


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these three items may overlap, 

respectively, with the EPA-designated 

recovered content products ‘‘plastic 

trash bags,’’ ‘‘re-refined lubricating oil,’’

and ‘‘carpets (polyester).’’ EPA provides 

recovered materials content 

recommendations for these three 

recovered content products in a 

Recovered Materials Advisory Notice 

(RMAN I). The RMAN 

recommendations for each of these CPG 

products can be found by accessing 

EPA’s Web site http://www.epa.gov/ 

epaoswer/non-hw/procure/ 

products.htm and then clicking on the 

appropriate product name. 

EPA is proposing to designate nylon 

carpets as a recovered content product. 

If and when EPA finalizes designation 

of nylon carpets as a recovered content 

product, then carpets would have the 

potential to overlap with these types of 

carpets as well as the currently EPAdesignated recovered content polyester 

carpets. 

Future Designations. In making future 

designations, USDA will continue to 

conduct market searches to identify 

manufacturers of biobased products 

within items. USDA will then contact 

the identified manufacturers to solicit 

samples of their products for voluntary 

submission for biobased content testing 

and for the BEES analytical tool. Based 

on these results, USDA will then 

propose new items for designation for 

preferred procurement. 

As stated in the preamble to the first 

six items designated for preferred 

procurement (71 FR 13686, March 16, 

2006), USDA plans to identify 

approximately 10 items in each future 

rulemaking. USDA has developed a 

preliminary list of items for future 

designation. This list is available on the 

BioPreferred Web site. While this list 

presents an initial prioritization of items 

for designation, USDA cannot identify 

with any certainty which items will be 

presented in each of the future 

rulemakings. Items may be added or 

dropped and the information necessary 

to designate an item may take more time 

to obtain than an item lower on the 

prioritization list. 

III. Summary of Changes 

As the result of comments received on 

the proposed rule (see Section IV), 

USDA made changes to the rule, which 

are summarized below. 

Item names. The names for two of the 

10 items were revised. ‘‘Biodegradable 

Films’’ is now ‘‘Films.’’ ‘‘Biodegradable 

Cutlery’’ is now ‘‘Disposable Cutlery.’’

Item Definitions. The definitions of 

six of the 10 items were revised to 

varying degrees. These six items are: 2- 

cycle engine oils; films; stationary 

equipment hydraulic fluids; disposable 

cutlery; greases; and carpets. 

Subcategories. In addition to 

finalizing the proposed subcategories 

under the ‘‘greases’’ item, subcategories 

were created for two items. The item 

that was proposed as ‘‘biodegradable 

films’’ and the proposed item ‘‘durable 

films’’ that was included in the October 

11, 2006, Round 4 proposal (71 FR 

59862) were combined as two 

subcategories (semi-durable films and 

non-durable films) under an item named 

‘‘films.’’ The carpet and upholstery 

cleaners item was subcategorized into 

(1) spot removers and (2) general 

purpose cleaners. 

Minimum biobased content. Several 

of the proposed minimum biobased 

contents for the designated items have 

changed for the final rule in response to 

public comments and in consideration 

of available product performance 

information. As a result of the 

comments received regarding the 

proposed minimum biobased contents 

and the availability of additional 

biobased content tests for several items, 

USDA re-evaluated the proposed 

minimum biobased contents of all of the 

items. 

Items for which the minimum 

biobased content was changed from the 

proposed level are presented here and 

the rationale for the changes is 

discussed in the section of this 

preamble presenting the item-specific 

comments and responses. 

For 2-cycle engine oils, the proposed 

minimum biobased content of 7 percent 

was changed to 34 percent. 

For the films item (proposed as 

‘‘biodegradable films’’), the proposed 

minimum biobased content of 22 

percent was changed to 45 percent for 

the semi-durable films subcategory and 

85 percent for the non-durable films 

subcategory. 

For the stationary equipment 

hydraulic fluids, the proposed 

minimum biobased content of 46 

percent was changed to 44 percent. 

For the disposable cutlery item 

(proposed as ‘‘biodegradable cutlery’’), 

the proposed minimum biobased 

content of 33 percent was changed to 48 

percent. 

For glass cleaners, the proposed 

minimum biobased content of 23 

percent was changed to 49 percent. 

For the greases item, the proposed 73 

percent minimum biobased content for 

the multipurpose greases subcategory 

was changed to 72 percent and the 

proposed 72 percent minimum biobased 

content for the truck greases subcategory 

was changed to 71 percent. 

For dust suppressants, the proposed 

minimum biobased content of 66 

percent was changed to 85 percent. 

For the proposed carpet and 

upholstery cleaners item the proposed 

minimum biobased content of 34 

percent was changed to 54 percent for 

the general purpose cleaners 

subcategory and the minimum biobased 

content for the spot removers 

subcategory was set at 7 percent. 

Overlap with EPA CPG products. For 

the items stationary equipment 

hydraulic fluids and carpets, potential 

overlap with EPA CPG products was 

added to the final rule. Then, for both 

items that may overlap with EPA CPG 

products (re-refined lubricating oils and 

polyester carpets), a note was added to 

facilitate finding information on the two 

EPA CPG products. 

IV. Discussion of Comments 

USDA solicited comments on the 

proposed rule for 60 days ending on 

October 16, 2006. USDA received 

comments from 31 commenters by that 

date. The comments were from private 

citizens, individual companies, industry 

organizations, one foreign government, 

and various Federal agencies. 

The comments contained in this 

Federal Register (FR) notice address 

general and specific comments related 

to Round 3 items. In addition to the 

information provided in the responses 

to public comments presented in this 

preamble, USDA has prepared a 

technical support document titled 

‘‘Technical Support for Final Rule—

Round 3 Designated Items,’’ which 

contains documentation of USDA’s 

efforts to research and respond to public 

comments. The technical support 

document is available on the 

BioPreferred Web site. The technical 

support document can be located by 

clicking on the Proposed and Final 

Regulations link on the left side of the 

BioPreferred Web site’s home page 

(http://www.biopreferred.gov). Click on 

Supporting Documentation under 

Round 3 Designation under Final Rules. 

This will bring you to the link to the 

technical support document. 

The technical support document 

includes, but is not limited to: (1) 

Information on whether the standards 

presented in the preamble to the 

proposed rule are test methods, 

performance standards, or ‘‘other’’ (e.g., 

a certification by a trade association or 

council, a classification system) 

(Chapter 1.0), (2) BEES impact values 

for each item (Appendix B), and (3) a 

tabular and graphical presentation of the 

BEES environmental performance scores 

for each item (Appendix C). This 

information is being presented in the 


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technical support document as the 

result of general comments received on 

both Rounds 2 and 3. The technical 

support document for Round 3 includes 

additional information as identified in 

the remainder of this preamble. 

General Comments 

Minimum Biobased Content 

Several commenters felt that USDA 

was proposing minimum biobased 

contents that were too low for many of 

the products. These, and other, 

commenters also provided specific 

comments on the proposed minimum 

biobased contents for specific items. 

Those specific comments are addressed 

later in the preamble under Item 

Specific Comments. Here, USDA is 

responding to the comments that more 

generally address the procedure USDA 

uses in proposing minimum biobased 

contents. 

Comment: Several commenters were 

concerned about the approach USDA 

used to determine minimum biobased 

contents. One commenter recommended 

that, rather than setting the threshold 

level below the lowest percentage 

observed in the lowest end product in 

the survey, USDA reward the top half or 

top two thirds of the respondents, at 

least where the spread is more than 20 

percentage points. Two other 

commenters recommended that USDA 

consider a minimum threshold of 50 

percent biobased content given that 

products with biobased contents above 

50 percent are available in all categories. 

Response: In response to these public 

comments and ongoing discussions with 

other Federal agencies, and because 

several additional biobased content test 

results were obtained after proposal, 

USDA re-evaluated the proposed 

minimum biobased contents for each of 

the proposed items. In re-evaluating the 

minimum biobased contents, USDA 

considered factors including the number 

of, and the distribution of, the test data 

points as well as the product 

manufacturer’s claims related to 

performance, biodegradability, and 

range of applicability. 

In those cases where all of the 

products’ biobased contents were within 

a narrow range and no data were 

available to distinguish significant 

performance differences among the 

products, USDA set the minimum 

biobased content at the level that would 

allow preferred procurement for all of 

the products for which data were 

available. 

For items where the products’

biobased contents showed a wider range 

and included one or more significant 

breaks in the range, USDA reviewed the 

product information to determine if 

there were performance or applicability 

differences among the products that 

could be used for creating subcategories 

based on the groups of products that 

have similar biobased contents. For 

example, if the biobased contents of half 

of the products within an item were in 

the 30 to 50 percent range and the other 

half were in the 80 to 95 percent range, 

USDA considered whether the product 

information supported the creation of 

two subcategories. Information that was 

considered to be supportive of 

subcategorization were claims of 

product features such as ‘‘special 

applications,’’ ‘‘high temperature 

applications,’’ or ‘‘single-use versus 

multiple-use.’’ In those cases where the 

biobased content and other product 

information supported 

subcategorization, USDA has created 

subcategories in this final rule. 

In other cases, USDA has considered 

subcategorization for an item based 

upon initial performance information, 

but USDA does not currently have 

sufficient data to justify creating 

subcategories. Where that is the case, 

USDA has generally set the minimum 

biobased content based on the group of 

products with the higher biobased 

contents. For these items, USDA will 

continue to gather data on products 

within the item and will create 

subcategories in a future rulemaking if 

sufficient data are obtained. 

For some items, there was a 

significant range in the reported 

biobased contents but the data points 

were evenly spread over the entire 

range. In those cases, if there were no 

data to distinguish the features of any 

grouping or subset of the products, 

USDA has generally set the minimum 

biobased content based on the product 

with the lowest biobased content in 

order to allow procuring agencies the 

widest selection of products from which 

to select those that best meet their 

needs. As additional product 

performance information becomes 

available and as additional products 

within these items become available 

with higher biobased contents, USDA 

will consider increasing the minimum 

biobased content or creating 

subcategories where performance 

characteristics or application use justify 

subcategorizing. 

As a result of the re-evaluation, many 

of the proposed minimum biobased 

contents have been revised for the final 

rule. These revisions will be presented 

and discussed in the item specific 

sections later in this preamble. For two 

items, USDA reviewed the biobased 

content data but did not find sufficient 

justification for revising the proposed 

minimum biobased content level. For 

lip care products, 8 biobased content 

test results were available (85, 86, 88, 

88, 92, 93, 98, and 100 percent). Because 

this is a narrow range of data points, 

USDA proposed setting the minimum 

biobased content based on the product 

with a biobased content of 85 percent. 

Subtracting the three percentage points 

to allow for testing variability results in 

a minimum biobased content of 82 

percent for this item. No public 

comments or additional data were 

received to support changing the 

proposed level. As a result, the 

proposed minimum biobased content of 

82 percent was retained for the final 

rule. 

For the carpets designated item, 

USDA reviewed the biobased content 

data (10, 10, 23, 24, 31, 35, and 37 

percent) and found that the biobased 

content of the products that have been 

tested increases as the ‘‘weight’’ of the 

carpet increases. In most of these 

products the biobased material is used 

as the carpet backing and the thicker the 

backing, the higher the biobased 

content. The product with 37 percent 

biobased content also has a small 

amount of biobased material 

incorporated into the carpet face. USDA 

considered the possibility of creating 

subcategories within this item based on 

performance features (such as 

durability) but does not have sufficient 

data to justify subcategorization at this 

time. Because there are no significant 

breaks in the range of data points and 

the overall range is small, USDA has 

retained the proposed 7 percent 

minimum biobased content for this 

item. USDA will continue to gather 

information on this item and will 

consider creating subcategories in a 

future rulemaking. 

Biobased Content Testing 

Comment: One commenter 

recommended that the ASTM active 

standard D6866–06 (standard test 

methods for determining the biobased 

content of natural range materials using 

radiocarbon and isotope ratio mass 

spectrometry analysis) replace the 

historical D6866–04. 

Response: USDA agrees that the most 

recent and active ASTM standard needs 

to be used. In order to minimize the 

need to update the regulation, USDA 

has decided to simply refer to the base 

ASTM designation (in this case, ASTM 

6866) and drop the year designation (in 

this case, the –04) and instead specify 

in the final rule that ‘‘the current 

version’’ of ASTM D6866 be used for 

determining biobased content. 


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Information on Designated Items 

Comment: One commenter, noting 

that USDA stated that its attempts to 

gather data were ‘‘largely unsuccessful,’’

urged USDA to re-examine and improve 

upon its prior efforts to gather complete, 

technically sound information on 

products within designated items and to 

use that information to further refine the 

program in the future. 

Response: USDA uses the phrase 

‘‘largely unsuccessful’’ in the context of 

its efforts to obtain information on the 

amount of products within designated 

items that Federal agencies are using 

(for example, see Section IV.A, 

Executive Order 12866 in this preamble) 

and not on the information associated 

with the products within each item. 

Information on the usage of products 

would assist USDA to make estimates of 

the potential economic impact of the 

rule. 

USDA has in place a procedure to 

gather technical information on 

products within each item it proposed 

for designation. As USDA proposes 

additional items for designation, it seeks 

to improve this process with each 

successive rulemaking to ensure the 

information it has is technically sound. 

One area in which USDA is using the 

improved information is in the 

development of subcategories within 

items. There will always be some 

uncertainty in the data obtained, but 

USDA will continue to propose items 

for designation for preferred 

procurement with the data it has in 

hand. USDA encourages the provision 

of additional information on products 

within items prior to their being 

designated for preferred procurement. 

The items being considered for 

preferred procurement can be found on 

the BioPreferred Web site. 

Comment: One commenter suggested 

that the data that form the basis for 

USDA’s decisions and their source be 

available to the public. The commenter 

noted, as one example, that USDA 

intends to post public comments on the 

‘‘positive environmental and human 

health attributes’’ of products on its 

Web site, and make the comments 

available to Federal procurement 

agencies to ‘‘* * * assist them in 

making ‘best value’ purchasing 

decisions.’’

Response: Since the first round of six 

items were designated for preferred 

procurement, USDA has provided 

significantly more data on each item 

being proposed for preferred 

procurement on the BioPreferred Web 

site. At the BioPreferred Web site, 

technical information is provided on 

products within the items. The 

BioPreferred Web site can be accessed 

by the public at http:// 

www.biopreferred.gov. 

USDA is concerned that the 

commenter might believe that USDA is 

using comments received on the 

‘‘positive’’ attributes of biobased 

products as a basis for designating an 

item for preferred procurement, while 

ignoring potential ‘‘negative’’ attributes. 

This is not the case. The availability of 

information on the environmental and 

health attributes and life costs of items 

is part of the basis for proposing an item 

for preferred procurement. USDA is 

using the BEES analysis, which is 

‘‘neutral’’ in regards to whether an 

environmental impact of a biobased 

product is ‘‘positive’’ or ‘‘negative,’’ to 

provide some of this information. 

Finally, the statute authorizing the 

preferred procurement program for 

biobased products requires USDA to, in 

part, provide information on 

‘‘environmental and health benefits’’ of 

such materials and items. Thus, USDA 

has a statutory obligation to make such 

information on the positive 

environmental and human health 

attributes available. 

One way USDA is implementing this 

requirement is by posting public 

comments on the positive 

environmental and human health 

attributes of products on the 

BioPreferred Web site. Given the 

infancy of most biobased product 

markets, this type of information is 

often not generally known and 

providing access to such information, 

provided it is documented, is important 

to the success of the BioPreferred 

Program. If such information is 

anecdotal, it will be so indicated. 

Comment: One commenter suggested 

that USDA take reasonable steps to 

ensure that the information that is 

offered to government agencies and that 

is provided on the government’s Web 

site be objective and accurate. The 

commenter states that, while USDA’s 

preference for using data and 

certifications that come from consensus 

standards organizations is 

commendable, it does not alleviate this 

concern. According to the commenter, 

there appears to be no current 

mechanism to verify accuracy and that 

USDA’s request ‘‘When possible, please 

provide appropriate documentation to 

support the environmental and human 

health attributes you describe’’ alone 

appears to be insufficient to ensure 

fairness. 

Response: USDA agrees with the 

commenter that the information made 

available to government agencies 

concerning biobased products needs to 

be objective and accurate. To address 

this situation, USDA is requiring 

manufacturers to provide 

documentation for information that will 

be posted directly on the BioPreferred 

Web site. If, in the opinion of USDA, 

such claims cannot be sufficiently 

supported, they will not be posted on 

the BioPreferred Web site. A 

manufacturer is still allowed to post 

such ‘‘undocumented’’ claims on their 

own Web sites, as any other 

manufacturer of any other product can 

do. USDA is not responsible for the 

information posted on a manufacturer’s 

Web site. Thus, information obtained 

from the manufacturer’s Web site needs 

to be considered in this context. 

Because USDA makes this distinction in 

the information it allows to be posted on 

the BioPreferred Web site, USDA 

disagrees with the commenter that this 

mechanism results in ‘‘unfair’’ results. 

The second step that USDA plans to 

implement to help ensure the accuracy 

of the information posted on the 

BioPreferred Web site is an audit 

program. Under this audit program, 

USDA will randomly select products for 

sampling to ensure the accuracy of the 

information on selected products. The 

size of the BioPreferred Program, 

however, makes it difficult for USDA to 

reasonably verify every claim on every 

product. Thus, USDA must rely on an 

audit program. 

Lastly, USDA notes that, by requiring 

the biobased content on products to be 

determined in an ISO-compliant facility, 

USDA is reasonably ensuring the 

accuracy of the reported biobased 

content. In conclusion, USDA believes 

the above steps meet the commenter’s 

concerns. 

Biobased Polymers 

Comment: One commenter requested 

that USDA evaluate and address the 

effect that biobased polymers will have 

on current recycling streams and 

markets. According to the commenter, 

to the best of their knowledge, no 

technology exists to screen out biobased 

products during the recycling process 

and the presence of a small fraction of 

biobased polymers in the recycling 

stream may result in unintended 

consequences to the recycling 

infrastructure. 

Response: The purpose of the 

BioPreferred Program is to encourage 

the purchase of biobased products, 

including products that are commonly 

recycled. However, like the commenter, 

USDA is concerned that such products 

are disposed of in an environmentally 

responsible manner. USDA has 

consulted with EPA and with 

representatives of the Association of 

Post-Consumer Plastic Recyclers 


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(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. 

Purchase of Biobased Products 

Comment: One commenter urged 

USDA to clarify in the final rule that it 

is not requiring procuring agencies to 

limit their choices to biobased products 

that fall under the items for designation 

in this proposed rule in order to avoid 

the unintended consequence of severely 

limiting product selection and material 

selection options. The commenter 

pointed out that a product should be 

reasonably available, meet USDA’s 

requirements for performance for the 

application intended, and be available 

at a reasonable price. 

Response: USDA agrees with the 

commenter that Federal agencies are not 

limited to considering biobased 

products when making purchasing 

decisions under the preferred 

procurement program for biobased 

products. Even though biobased 

products are given preferred 

procurement, purchasing agencies can 

buy other competing products when 

biobased products are not readily 

available, are not available at a 

reasonable cost, or do not meet Agency 

performance standards. USDA believes 

that this is clearly stated for the current 

rulemaking and will continue to make it 

clear in future rulemakings as well. 

Item Specific Comments 

2-Cycle Engine Oils 

Comment: One commenter stated that 

the definition of 2-cycle engine oil 

needed to be modified to make it clearer 

as to what products are within the item 

designation. 

Response: USDA appreciates the need 

expressed by the commenter to have 

clearly defined items to identify which 

products are included in the item. 

USDA has modified the definition 

slightly to be clearer that products in 

this item are ‘‘designed for use in 2- 

cycle engines’’ and that such products 

provide lubrication and/or other 

properties beneficial to 2-cycle engines. 

Comment: Two commenters stated 

that the list of performance standards 

shown for 2-cycle engine oils were not 

the applicable performance standards. 

The commenters referred to the 

standards set by four standard-setting 

organizations—the National Marine 

Manufacturers Association (NMMA), 

American Petroleum Institute (API), 

Japanese Automobile Standards 

Organization (JASO), and International 

Standards Organization (ISO). The 

commenters pointed out that the only 

relevant standard for outboard motors is 

the one set by the NMMA. The 

commenters felt that to continue to 

include 2-cycle engine oils that do not 

meet or exceed standards set by these 

four organizations would result in 

engine failure and a bad reputation for 

products within this item designation. 

The commenters, therefore, 

recommended that only those 2-cycle 

engine oils that meet one or more of the 

standards set by those four 

organizations be included in the 

preferred procurement program. 

One of the commenters further 

recommended that the level of criteria 

be included so that purchasers can buy 

products according to the level of 

performance needed. 

Response: USDA thanks the 

commenters for the information 

concerning the standards being set by 

the four organizations identified by the 

commenters. USDA agrees that 

purchasers of 2-cycle engine oils need to 

be aware of these standards when 

purchasing any 2-cycle engine oil, 

including biobased 2-cycle engine oils. 

USDA believes the best way to provide 

this information is to make it available 

on the BioPreferred Web site. USDA 

disagrees that such standards need to be 

incorporated into the rule for these 

products because to do so, in part, 

would place restrictions on the 

manufacturers of biobased 2-cycle 

engine oils that do not exist for 

manufacturers of non-biobased 2-cycle 

engine oils. Although USDA believes 

that it would be beneficial to the 

manufacturer of any product to be able 

to demonstrate that their products meet 

or exceed applicable performance 

standards, USDA does not believe that 

it should force biobased product 

manufacturers, by regulation, to test 

against all applicable performance 

standards prior to marketing their 

products. USDA believes this is 

unnecessary because purchasing 

agencies should not buy biobased 2- 

cycle engine oils or, for that matter, 

petroleum-based 2-cycle engine oils if 


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they do not meet the agency’s 

specifications or performance standards. 

Comment: Three commenters stated 

that the proposed minimum biobased 

content of 7 percent for 2-cycle engine 

oils was too low. One of the commenters 

recommended a minimum biobased 

content of 30 percent. According to this 

commenter, there are a variety of 2-cycle 

engine oils with renewable contents in 

the 30 to 50 percent range that meet the 

applicable performance standards and 

that are commercially available from 

different manufacturers. 

The second commenter recommended 

that the minimum biobased content for 

2-cycle engine oils be at least 50 

percent. This commenter expressed 

concerned that at this low biobased 

content, 2-cycle engine oils would not 

even pass the ASTM–D5864 

Biodegradable Classification and that 

European Union 2-cycle engine oils are 

at least biodegradable. 

The third commenter suggested that, 

based on the data in the background 

information, USDA recommend 

multiple content levels reflecting 

differences in product use. 

All three commenters expressed 

concern that petroleum companies 

would add just enough biobased oils to 

their products to qualify for preferred 

procurement. One of the commenters 

stated that this would ruin biobased 

manufacturers in this particular market 

and another stated that this would be 

contrary to the objectives of the Farm 

Security and Rural Investment Act. 

Response: As discussed earlier in this 

preamble, USDA re-evaluated the 

proposed minimum biobased content 

for all of the proposed items. Based on 

the re-evaluation of the biobased 

content data, the minimum biobased 

content for 2-cycle engine oils has been 

set at 34 percent. The biobased content 

for products that have been tested are: 

37, 39, 60, 77, and 78 percent. At 

proposal, the minimum biobased 

content of 7 percent was based on a 

product that was described as being 

formulated to meet specific Japanese 

performance standards for small 

engines. Since proposal, this product 

has been withdrawn by its manufacturer 

and is no longer available. 

Because there is a significant break in 

the data between the 39 percent product 

and the 60 percent product, USDA 

considered the possibility of 

establishing subcategories within this 

item. The two products with 37 and 39 

percent biobased content have shown 

that they meet certain small engine 

performance specifications and 

biodegradability standards, while such 

information is not available for the 

products with the higher biobased 

contents. At this time, however, USDA 

has not received sufficient information 

related to small engine performance 

specifications to justify subcategorizing 

this item. USDA will continue to collect 

performance information and will 

consider subcategorizing this item 

through future rulemakings as 

additional information is made 

available. 

Based on the presently available 

information, USDA believes that setting 

a minimum biobased content to allow 

procuring agencies to select products at 

this lower biobased content level is 

desirable. USDA will continue to gather 

additional information on the 

performance of other products within 

this item. If verification is obtained that 

products with significantly higher 

biobased contents can meet the 

performance and biodegradability 

standards offered by the products with 

lower biobased contents, USDA will 

also consider raising the minimum 

biobased content for this item in a 

future rulemaking. As additional 

information becomes available, USDA 

will also consider creating subcategories 

within this item at a later date based on 

features such as biodegradability. 

Because biodegradability can be an 

important attribute for 2-cycle engine 

oils used in marine environments, 

USDA continues to encourage all 

manufacturers of 2-cycle engine oils, 

and other biobased products, to provide 

as much information as possible 

concerning biodegradability and other 

beneficial characteristics of their 

products. The ASTM method mentioned 

by the one commenter (ASTM–5864) is 

a test method that can be used to 

determine the level of biodegradability. 

The availability of such information will 

assist procuring agencies in selecting 

biobased products that meet particular 

needs, such as biodegradability. 

Lip Care Products 

Comment: One commenter pointed 

out that there is no standard for lip care 

balm. 

Response: USDA appreciates the 

commenter’s review of, and comment 

on, the proposed designated item. 

USDA agrees with the commenter that 

no performance standards for lip balm 

have been identified. USDA points out, 

however, that the lack of identified 

performance standards is not relevant to 

the designation of an item for preferred 

procurement. In order to designate items 

for preferred procurement, section 9002 

of FSRIA requires USDA to consider: (1) 

The availability of items; and (2) the 

economic and technological feasibility 

of using the items, including the life 

cycle costs of the items. If and when 

performance standards and other 

relevant measures of performance are 

identified for this item, USDA will 

provide such information on the 

BioPreferred Web site. 

Films (Formerly Biodegradable Films) 

Comment: One commenter stated that 

the definition for biodegradable films 

was vague and needed clarification. The 

commenter assumed that, based on the 

proposed definition, the designated item 

includes non-durable films intended to 

be used once before being discarded. 

The commenter then asked: How will 

the ‘‘durable films’’ item to be proposed 

at a later date be differentiated from this 

item? The commenter recommended 

that this item be retitled ‘‘disposable 

bags, wrappings and liners.’’

Response: USDA agrees with the 

commenter that the name for this item 

should not refer to ‘‘biodegradable’’

films. USDA has renamed this item as 

‘‘films’’ and has an included a nondurable films subcategory for the 

products that were in the 

‘‘biodegradable films’’ item at proposal. 

USDA also proposed, under a separate 

rulemaking, designating an item named 

‘‘durable films’’ and has now included 

under the new ‘‘films’’ item a 

subcategory for the products that were 

in that proposed item. USDA has 

revised the definitions in the final rule 

for the ‘‘semi-durable films’’

subcategory to make it clearer as to the 

types of products it covers as opposed 

to those films that would be covered by 

the ‘‘non-durable films’’ subcategory. 

For example, USDA has revised the 

definition to clearly state that nondurable films are intended for single use 

before being discarded, as suggested by 

the commenter. 

Comment: One commenter 

recommended that, based on the data in 

the background information, the 

minimum biobased content for this item 

be set based on the products with tested 

biobased contents of either 52 or 62 

percent, rather than on the product with 

a tested biobased content of 25 percent, 

which resulted in the proposed 

minimum biobased content of 22 

percent. The commenter then stated that 

USDA should obtain information to 

justify the claim made in the preamble 

that Federal agencies need products 

with a longer shelf-life, thereby 

supporting the 22 percent content 

recommendation. 

Response: As discussed above, USDA 

has established two subcategories for 

this item, one for semi-durable films 

and one for non-durable films. For the 

semi-durable films subcategory, USDA 

has biobased content data for 11 

products (25, 48, 49, 52, 62, 62, 62, 62, 


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62, 62, and 64 percent biobased). 

Because there is a significant break in 

the data between the 25 percent product 

and the 48 percent product, USDA 

investigated the product information 

available for the 25 percent product to 

determine if it offered characteristics 

not offered by the other products. USDA 

found that there were no performance 

claims for this product that 

distinguished it from the products with 

a higher biobased content. The biobased 

content for the remaining products were 

within a narrow range and no 

performance or applicability 

information was available to further 

divide the products within the 

subcategory. Therefore, the minimum 

biobased content has been set at 45 

percent for this subcategory, based on 

the product with the tested biobased 

content of 48 percent. 

For the non-durable films 

subcategory, the tested biobased 

contents are: 88, 89, 90, 94, and 96 

percent. The data points are within a 

narrow range and no information was 

available to further divide the products 

within the subcategory. USDA is, 

therefore setting the minimum biobased 

content for non-durable films at 85 

percent, based on the product with a 

biobased content of 88 percent. 

Stationary Equipment Hydraulic Fluids 

Comment: One commenter requested 

that USDA designate as a subcategory 

hydraulic oil used in mobile equipment 

for preferred procurement. 

Response: USDA has already 

designated mobile hydraulic fluids 

under the first group of products 

designated for preferred procurement. 

The commenter is referred to the March 

16, 2006, Federal Register notice (71 FR 

13686). To help avoid such confusion, 

USDA will try in future proposals to 

group similar items together within a 

rulemaking. 

Comment: Two commenters stated 

that the definition of stationary 

equipment hydraulic fluids was 

somewhat unclear and needed to be 

modified. One of the commenters 

suggested the following definition: 

Fluids used in stationary hydraulic 

equipment systems that have various 

mechanical parts, such as cylinders, 

pumps, valves, pistons, and gears, that 

are used for the transmission of power 

(and also for lubrication and/or wear, 

rust, or oxidation protection). 

Response: USDA appreciates the 

commenters’ suggested revisions to the 

proposed definition of this designated 

item and has incorporated the 

suggestions into the definition in the 

final rule. 

Comment: Two commenters 

addressed the proposed minimum 

biobased content for stationary 

equipment hydraulic fluids. One 

commenter agreed with the proposed 

minimum biobased content of 46 

percent. The other commenter felt that, 

based on the data in the background 

information, the proposed content was 

too low and should be based on the 

product with a tested biobased content 

of 64 percent. This commenter also 

stated that, if the lower content levels 

reflect products used for different 

applications than those with higher 

content levels, then USDA should 

provide separate content 

recommendations. 

Response: The 48 biobased content 

data points in this data set range from 

47 percent to 100 percent. USDA’s reevaluation of the biobased content data 

for this item did not identify any 

significant breaks in the range nor was 

there data available to support 

subcategorization. Because of the very 

wide range of applications in which 

these products are used, USDA was 

unable to identify discreet subcategories 

without significant overlaps in the 

biobased contents among the 

subcategories. USDA is setting the 

minimum biobased content for this item 

at 44 percent, based on the product with 

a tested biobased content of 47 percent, 

because the products at this end of the 

range are believed to offer performance 

characteristics, such as the ability to be 

used in low temperature applications, 

not offered by some of the products with 

a higher biobased content. USDA will 

continue to gather additional 

information for this item and will 

consider creating subcategories based on 

product performance and/or 

applicability if sufficient supporting 

documentation can be obtained. 

Comment: One commenter stated that, 

as a practical matter, the overlap with 

biobased hydraulic fluids and EPAdesignated recovered content 

lubricating oils is likely to be limited 

because most re-refined oil is being used 

for motor/engine oil, not hydraulic 

fluids. The commenter stated that DLA’s 

re-refined oil program is focused on 

motor/engine oil and not hydraulic 

fluids and that a check of the DLA Web 

site does not indicate any standards for, 

or purchase contract for, re-refined 

hydraulic fluid. Further, according to 

the commenter, most of the re-refined 

oil vendors listed in EPA’s CPG supplier 

database are selling re-refined motor/ 

engine oil, with only one or two 

companies on the list appearing to sell 

re-refined hydraulic fluids. The 

commenter believes that market factors 

are directing the current supply of rerefined base oil stock into the engine oil 

segment, which probably makes sense 

given the size of that market. 

Based on these factors, the commenter 

believes that it is entirely possible that 

Federal buyers may have a difficult time 

finding and, with very limited choices, 

buying re-refined hydraulic fluids. The 

commenter believes that buyers wanting 

to replace petroleum-based hydraulic 

fluid products may find biobased 

hydraulic fluids more available in the 

marketplace than re-refined hydraulics. 

The commenter noted that, in situations 

where there are concerns for spills, 

readily biodegradable biobased 

hydraulic oil would be a better choice 

based on performance. 

Finally, the commenter stated that if 

more re-refined base stock oil becomes 

available in the market place, it is 

possible that manufacturers of hydraulic 

fluids could use a combination of 

vegetable oils and re-refined oil base 

stock to meet both biobased content and 

CPG Guidelines. 

Response: USDA believes that the 

commenter makes some very good and 

valid observations concerning the 

potential for, or lack of, overlap between 

biobased hydraulic fluids for stationary 

equipment and EPA-designated 

recovered content re-refined lubricating 

oil. However, USDA continues to 

believe there is a potential for overlap 

and that to identify such potential is 

still worthwhile. Furthermore, USDA 

appreciates the point raised by the 

commenter concerning the potential 

preference to be shown to biobased 

hydraulic fluids over EPA-designated 

recovered content products where 

biodegradability may be an issue in the 

use of the fluid. In such instances, the 

biobased fluid may be able to meet the 

need to be biodegradable while the nonbiobased fluid cannot. 

Disposable Cutlery (Formerly 

Biodegradable Cutlery) 

Comment: One commenter asked why 

this biobased item was also 

‘‘biodegradable.’’ Another commenter 

pointed out that the other 

‘‘biodegradable’’ items referenced 

ASTM D6400 in their definitions and 

asked whether cutlery should also 

reference ASTM D6400 instead of 

ASTM D5338. 

Response: The products covered by 

this item were intended to be disposable 

cutlery, with preferred procurement to 

be given to biobased disposable cutlery. 

Further, it was USDA’s intent that 

preferred procurement is given to 

biobased disposable cutlery that is also 

biodegradable. As discussed earlier in 

this preamble, where disposability 

considerations are equally important as 


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performance characteristics, USDA 

plans on requiring biodegradability for 

products within the designated item if 

there are established biodegradability 

standards. Some of the manufacturers of 

products within this item claim 

biodegradability as a feature of their 

products. However, USDA has not been 

successful in obtaining sufficient 

evidence that these products provide 

acceptable levels of performance. Thus, 

USDA does not believe that, at this time, 

biodegradability should be a 

requirement that products in this item 

must meet to qualify for preferred 

procurement. However, USDA will 

continue to investigate the performance 

of biodegradable disposable cutlery and, 

if sufficient evidence of acceptable 

performance is obtained, USDA will 

amend the designation of disposable 

cutlery to add biodegradability as a 

requirement for this item. USDA also 

continues to urge procuring agencies to 

consider biodegradability as a desirable 

feature of products within this item and 

to purchase biodegradable biobased 

disposable cutlery to the extent that 

these products meet their performance 

needs. 

USDA agrees with the commenter that 

ASTM D6400 should be the primary test 

method for demonstrating the 

biodegradability of biobased cutlery. 

However, there may be other biobased 

formulations for which ASTM D6400 

would not be the appropriate test 

method for demonstrating 

biodegradability. For example, if the 

cutlery is to be disposed of in a marine 

environment, the appropriate test 

method would be ASTM D7081. Thus, 

while biodegradability is not a 

requirement for products within this 

item, manufacturers wishing to 

demonstrate biodegradability are 

encouraged to use the most appropriate 

ASTM test methods. 

Lastly, USDA notes that disposable 

cutlery needs to be composted rather 

than landfilled in order for the cutlery 

to biodegrade and that they need to be 

composted in commercial composting 

facilities in order to be exposed to the 

proper temperature and moisture 

requirements for composting. 

Composting these products in a 

‘‘backyard’’ compost pile will not 

necessarily result in the complete 

biodegradation of the product. 

Comment: One commenter stated that 

the information provided in the 

Performance Standards document does 

not indicate whether biodegradable 

cutlery will perform when used for 

eating. A second commenter noted that 

biobased cutlery, if purchased, may not 

initially replace the combat-tested 

utensil, heavy duty, long handled spoon 

in the Meal, Ready-To-Eat without 

extensive DoD review, testing, field test 

and approval from U.S. Army Natick, 

ACES, Surgeon General and the Military 

Services. The second commenter also 

noted that applying the procurement 

preference rule to this combat-related 

product would not result in the 

multiplied effect across the economy 

that they would expect in the cutlery 

similar to that used in restaurants across 

the nation. 

Response: USDA agrees with the 

points made by the commenters. USDA 

was unable to identify any performance 

standards relevant to disposable cutlery 

and encourages the development of 

such to assist in the evaluation of such 

products. Without such standards as a 

guide, the performance of biobased 

cutlery may be unknown in any one 

situation. USDA does know through 

real-world experience that the 

performance of biobased cutlery will 

vary depending on its formulation and 

on the particular environment in which 

it is used. 

With regard to the second commenter, 

USDA notes that, for the reasons 

provided earlier in this preamble, the 

final rule does not require preferred 

procurement for disposable cutlery 

purchased for use in combat or combatrelated missions. If and when biobased 

cutlery is demonstrated to meet all of 

the performance requirements of DoD in 

tactical situations, USDA reserves the 

right to withdraw such exemptions for 

disposable cutlery. Should that situation 

occur, USDA appreciates the fact that 

purchase of biobased cutlery may be 

more limited for combat-related 

purchases than for general restaurant 

purchases, but the statute for this 

program is aimed at Federal agency 

purchases and not for private enterprise 

purchases. 

Comment: Two commenters 

recommended that USDA set the 

minimum biobased content near 100 

percent given the availability of 

products in this item containing 100 

percent biobased content. One of the 

commenters stated that 33 percent is too 

low. A third commenter expressed 

concern with the direction of the 

biobased content for cutlery based on 

their experience. The commenter stated 

that they are likely to start procuring 50 

percent biobased cutlery even though a 

superior 100 percent biobased utensil 

already exists. This commenter asked 

‘‘What are practical ways the Federal 

Government can find and place 

incentives in its policies for contractors 

to develop biobased products with the 

greatest degree (high percent) of 

biobased content, and measure its 

success in this regard?’’

Response: USDA appreciates the fact 

that some biobased cutlery can be made 

with nearly 100 percent biobased 

content, such as in the production of 

spoons based on PLA. However, the 

performance variability of currently 

available biobased cutlery under 

different food environments (for 

example, hot soups and drinks) is well 

known and this variability is associated 

directly with biobased content. 

Purchasers of biobased cutlery need to 

take into account such performance 

aspects, even if they occur in a trial-anderror mode as there are no performance 

standards established for this item. To 

account for these different applications, 

a wider range of biobased content 

cutlery should be made available. USDA 

currently has biobased content test data 

on six samples of products within this 

item (36, 49, 51, 73, 97, and 100 

percent). As discussed earlier, USDA 

has re-evaluated the biobased content 

data and the proposed minimum 

biobased contents for all of the proposed 

items. In reviewing the data for this 

item, USDA found that the product with 

the 49 percent biobased content is 

currently being reformulated by its 

manufacturer and, thus, it will not be 

considered in setting the minimum 

biobased content. Within the remaining 

data, there are breaks in the data 

between the 36 and 51 percent products, 

the 51 and 73 percent products, and the 

73 and 97 percent products. USDA did 

not have sufficient data on the 

performance of products within these 

groups to justify creating subcategories. 

However, USDA is aware that there does 

appear to be a correlation between 

biobased content and performance with 

high temperature food and beverages. 

That is, the higher biobased content 

products do not generally perform as 

well in high temperature applications. 

As a result, USDA is setting the 

minimum biobased content for this item 

at 48 percent, based on the product with 

a tested biobased content of 51 percent. 

USDA believes that setting the 

minimum biobased content at this level 

will allow products with acceptable 

high temperature performance 

characteristics to receive the 

procurement preference. 

As more information is developed on 

the biobased content of products within 

this item and on the associated 

performance of those products, USDA 

will revisit this item to determine if the 

minimum biobased content needs to be 

revised or if it is appropriate to develop 

subcategories. USDA will also continue 

to investigate the performance of 

biodegradable disposable cutlery and, if 

sufficient evidence of acceptable 


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performance is obtained, USDA will 

amend the designation of disposable 

cutlery to add biodegradability as a 

requirement for this item. 

Glass Cleaners 

Comment: One commenter stated that 

they were concerned that USDA’s 

collection methods were deficient 

because so few products formed the 

basis of the proposed rule. The 

commenter referred to a California Air 

Resources Board (CARB) survey, which 

identified 127 aerosol glass cleaners 

sold in the state of California alone. The 

commenter, therefore, recommended 

that USDA conduct a very thorough 

evaluation of glass cleaners. The 

commenter also stated that the BEES 

and biobased contents obtained may not 

be representative of all products on the 

market, representing instead only a 

small subset of products. The 

commenter recommended that the 

rulemaking demonstrate that the 

products evaluated are representative of 

the market and appear to have been 

overlooked in USDA’s initial 

investigation. 

Response: USDA appreciates the 

information concerning the CARB 

study, which covered both biobased and 

non-biobased products. Because one of 

the purposes of the BioPreferred 

Program is to identify biobased products 

for potential preferred procurement, 

USDA’s product investigation efforts 

did not seek out non-biobased products. 

USDA identified, at proposal, 16 

manufacturers of biobased products 

within this item, with 19 biobased 

products being marketed. 

While USDA has in place a rigorous 

procedure for identifying products that 

are biobased, USDA recognizes that its 

procedure will not uncover all possible 

biobased products. Based on available 

data, USDA cannot determine if the 

samples that were voluntarily submitted 

by manufacturers are representative of 

all biobased products within this item. 

Regardless, USDA believes that it is 

reasonable to set minimum biobased 

contents based on the information it 

does have. If the commenter or others 

have additional information on the 

biobased content of other biobased 

products within this item, USDA 

encourages the commenter and others to 

submit that information to USDA. 

USDA will evaluate the additional 

information in relationship to the 

minimum biobased content for this 

designated item. 

For this and all other items, USDA 

welcomes assistance in identifying 

manufacturers and their biobased 

products for the BioPreferred Program. 

A list of such items can be found on the 

BioPreferred Web site. 

Comment: One commenter stated that 

some of the products investigated under 

glass cleaners do not seem to fit the 

proposed definition. For example, one 

product description states: ‘‘* * * 

(product) is for use on bathroom 

mirrors, goggles, or any lens surface 

where confined areas tend to mist or 

fog. Forms an invisible shield, or film, 

that keeps mirrors, car windows, glass, 

goggles, lenses and plastic, free from 

mist, steam, or fogging.’’ The 

commenter, therefore, recommended 

that the category be clearly defined and 

restricted to glass cleaners only. The 

commenter also recommended that the 

definition be refined based on their 

input. 

Response: USDA has re-examined the 

products identified under the glass 

cleaner item designation. The product 

identified by the commenter also 

performs a glass cleaning function. 

Thus, USDA believes that it is 

reasonable to retain this particular 

product as a product under this item. 

However, USDA agrees in principle 

with the commenter that the 

information provided on products under 

each item should be only for products 

that are within the definition of the item 

designated for preferred procurement. 

Therefore, USDA will review products 

within all items designated to make sure 

this occurs. Because the product 

questioned by the commenter still falls 

within the intended group of products 

defined by this item, USDA has 

determined that it is unnecessary to 

redefine the item in the final rule. 

Comment: One commenter 

recommended that the standard for 

performance should not be restricted to 

the U.S. Navy #NASEA 6840 and Green 

Seal (GS) GS–37 methods, but must 

include other methods such as the EPA 

Design for the Environment 

performance standards, or other sciencebased performance criteria. The 

commenter then stated that all test 

methods should be thoroughly 

researched and evaluated and, if 

relevant, included in the proposed rule. 

Response: USDA points out that the 

performance standards and test methods 

that are reported in the preamble are 

neither requirements nor the entire 

universe of relevant and applicable 

performance standards for glass 

cleaners. The reported performance 

standards and test methods are those 

that have been used and reported by 

manufacturers of biobased glass 

cleaners. While it is not necessary to 

identify all test methods and 

performance standards that are 

applicable to an item in order to 

designate that item for preferred 

procurement, USDA encourages the 

provision of additional information on 

other relevant and appropriate test 

methods and performance standards for 

glass cleaners and will post relevant 

information on the BioPreferred Web 

site. 

With regard to the comment on the 

Design for the Environment (DfE), the 

DfE Formulator program is not a 

standard per se, but an industry 

partnership program designed to help 

manufacturers design products with 

better environmental profiles. The DfE 

program provides recognition to 

participating companies and products 

that have ‘‘passed’’ the DfE criteria. The 

DfE review process focuses primarily on 

health and environmental criteria, and 

has reviewed both glass cleaners and 

carpet cleaners, two items within this 

rulemaking. The DfE program does 

include relevant performance standards, 

such as ASTM and CSMA standards, for 

cleaning products. Relevant industry 

standards for cleaners identified 

through DfE include: SSPA Method 

DCC09 for cleaning, streaking, and 

smearing for glass cleaners; ASTM D488 

for soil removal on relevant substrates 

for general purpose cleaners; CSMA 

DCC–03 and AATCC test method 171–

1995 for carpet cleaners; and ASTM 

D5345 for soil removing for washroom 

cleaners. For more information on the 

DfE program, visit http://epa.gov/dfe/ 

pubs/projects/formulat/formpart.htm. 

Appendix A of the document Technical 

Support for Final Rule—Round 3 

Designated Items, which can be 

accessed on the BioPreferred Web Site, 

contains a draft document of the DfE 

Formulator Program. 

Comment: One commenter stated that 

the minimum biobased content for glass 

cleaners, based on the data in the 

background information, should be 52 

percent, not the proposed 23 percent. 

The commenter also stated that if USDA 

decides to retain the 23 percent level, 

that this level appears to be erroneous 

and should be 26 percent because the 

data in the background information 

shows products with biobased contents 

ranging from 29 to 100 percent. 

Therefore, the content level should be 

26 percent, not 23 percent. 

Response: At proposal, USDA had 

biobased content test data on four glass 

cleaners. The biobased contents were 

29, 52, 67, and 100 percent. As pointed 

out by the commenter, the range of 

reported biobased contents for tested 

products is 29 to 100 percent and, using 

the rationale presented at proposal, the 

minimum biobased content should have 

been set at 26 percent. At one point 

during the evaluation of this item USDA 


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had information on a product with a 

tested biobased content of 26 percent. 

However, this product was withdrawn 

from consideration. USDA inadvertently 

failed to revise the minimum biobased 

content for this item when that product 

was withdrawn. 

USDA has reevaluated the proposed 

minimum biobased content based on the 

additional data and on public 

comments. At this time, USDA has 

biobased content data for 12 tested 

products (5, 16, 26, 27, 29, 52, 61, 67, 

76, 81, 98, and 100 percent biobased 

content) within this item. There is a 

significant break in the range of data 

points between the 29 percent and the 

52 percent products. USDA considered 

whether the products with biobased 

contents below this break and those 

above it could be included in two 

separate subcategories. USDA found 

that there was not sufficient information 

on product performance or applicability 

to justify creating subcategories. As a 

result the minimum biobased content 

for this item has been set at 49 percent 

based on the product with a tested 

biobased content of 52 percent. As more 

information is developed on the 

biobased content of products within this 

item and on the associated performance 

of those products, USDA will revisit this 

item to determine if the minimum 

biobased content needs to be revised or 

if it is appropriate to develop 

subcategories. 

Greases 

Comment: One commenter stated that 

the definitions of greases, multipurpose 

grease, rail track greases, and greases not 

elsewhere specified need to be modified 

to make them better understood. 

Another commenter pointed out that the 

definition of greases was ‘‘fine as far as 

it goes,’’ but pointed out that there are 

greases that are thickened with 

polymers and other forms of solids. The 

commenter pointed to a class of grease 

thickened with Polyurea (this type of 

grease is found in the drive axles on 

front wheel drive cars) and noted that 

this was a very large market. 

Response: USDA agrees that the 

various other compounds cited by the 

one commenter can be constituents in 

the formulation of a biobased grease. 

While the definition proposed for 

‘‘greases’’ did not preclude these other 

substances, USDA has modified the 

definition slightly to accommodate the 

commenter’s suggestion. 

With regard to the definitions of 

multipurpose grease and rail track 

grease, USDA continues to believe that 

the proposed definitions are sufficient 

to define the types of greases that are 

covered by the two items. Therefore, 

USDA did not make any changes to 

these two definitions. 

With regard to greases not elsewhere 

specified, USDA has also not changed 

the definition from what was proposed. 

Products that fall within this category 

are greases that cannot be classified 

under any of the other four subcategory 

definitions. USDA believes that the 

proposed definition is clear on this. As 

additional information becomes 

available on other types of greases, 

USDA will consider additional 

subcategories, thereby reducing the 

number of grease products that would 

fall into the ‘‘greases not elsewhere 

specified’’ subcategory by default (see 

the following comment and response). 

Comment: One commenter 

recommended that USDA add 

additional subcategories for: (1) Heavy 

duty grease with EP (Extreme 

performance) additives for the very 

heavy loaded joints often found in 

heavy duty earthmoving equipment, (2) 

water resistant grease, and (3) greases 

for very high and very low 

temperatures. The commenter 

recognized that these subcategories 

would need to be investigated before 

minimum biobased contents could be 

established, but encouraged USDA to 

establish the subcategories because the 

need for these types of greases exist. 

Response: USDA appreciates the 

commenter’s suggestion for additional 

grease subcategories and will seek to 

collect information on these suggested 

subcategories for potential future 

designation. In the meantime, USDA 

notes that such greases would qualify 

for preferred procurement under the 

‘‘Greases not elsewhere specified’’

subcategory if they meet the minimum 

biobased content of 75 percent set for 

the ‘‘greases not elsewhere specified’’

subcategory. 

Comment: Two commenters 

submitted comments on the proposed 

minimum biobased content for greases. 

One commenter supported the provision 

of multiple biobased contents 

depending on the use of a grease 

product, but felt that, based on the 

information in the background 

document, it is not possible to 

determine whether some of the 

recommended content levels should be 

higher. Therefore, the commenter 

requested that USDA re-characterize the 

background data by use (e.g., food grade, 

multipurpose, rail track, etc.). 

In addition, the commenter requested 

that for greases that will be exposed 

directly to the environment, such as rail 

track greases, USDA conduct further 

research and determine whether a 

higher biobased content level and a 

biodegradability requirement are 

appropriate in order to minimize 

adverse impacts on the environment. 

The second commenter felt that most 

of the proposed minimum biobased 

contents were too high and that one was 

too low. The commenter recommended 

the following minimum biobased 

contents: 

Food grade grease: 40 percent (vs. 

proposed 42 percent); 

Multipurpose grease: 40 percent (vs. 

proposed 73 percent); 

Rail track grease: 50 percent at least 

(vs. proposed 30 percent); 

Truck grease: 50 percent (vs. proposed 

72 percent); and 

Greases not elsewhere specified: 50 

percent (vs. proposed 75 percent). 

This commenter also stated that, for 

four of the greases (i.e., multipurpose, 

food grade, truck, and greases not 

elsewhere specified), they would not be 

able to get the proper additives to make 

a high performance multipurpose or 

food grade grease or certain of their 

other greases because the required 

additives and thickeners are not 

biobased at this time. 

Response: USDA agrees that the 

information in the background 

documentation could have made clearer 

which grease products were included in 

which grease subcategory. USDA has 

reorganized the background information 

to make this clear. Additional details on 

the subcategorization and the biobased 

contents for products within this item 

can be found in Chapter 2.0 of the 

document ‘‘Technical Support for Final 

Rule—Round 3 Designated Items,’’

which is available on the BioPreferred 

Web site. 

USDA has re-evaluated the minimum 

biobased contents for each of the 

subcategories in this item. For the food 

grade greases subcategory only three 

data points are available (45, 62, and 95) 

and no further subcategorization can be 

supported by the data. Thus, the 

minimum biobased content remains at 

42 percent, as proposed. For the multipurpose greases subcategory, the tested 

biobased contents are all within a 

narrow range (75, 76, 76, and 76 

percent). The minimum biobased 

content is set at 72 percent based on the 

product with the 75 percent biobased 

content, which is a new test data point 

received after proposal. For the truck 

greases subcategory, the tested biobased 

contents are also within a narrow range 

(74, 75, 77, and 77 percent). The 

minimum biobased content is set at 71 

percent based on the product with the 

74 percent biobased content, which is a 

new test data point received after 

proposal. For the greases not elsewhere 

specified subcategory, the tested 

biobased contents are somewhat more 


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widely spread than the previous 

subcategories but are still within a 

reasonably close range (78, 87, 95, and 

96 percent). USDA found no 

justification in the data to support 

further subdividing this subcategory and 

the minimum biobased content remains 

at the proposed level of 75 percent. 

For rail track greases, the tested 

biobased contents are 33, 33, 39, 51, 66, 

and 66 percent and USDA has identified 

only two manufacturers of rail track 

greases. One manufacturer produces two 

rail track greases for use in cold 

temperature (both at 33 percent 

biobased content), two multi-season/all 

season rail track greases (39 percent and 

51 percent biobased content), and one 

summer rail track grease (66 percent 

biobased content). The other 

manufacturer produces a rail track 

grease that can be used under a wide 

range of temperatures. 

USDA believes that with sufficient 

information it would make sense to 

subdivide rail track greases. Based on 

the current information, USDA could 

subdivide rail track greases into three 

subcategories—winter/arctic greases, all 

season greases, and summer greases. If 

this were done, the minimum biobased 

contents would be, respectively, 30, 36, 

and 63 percent. Because only one 

manufacturer has been identified to date 

for two of these three potential 

subcategories, USDA would defer the 

effective preferred procurement dates 

for two of the three subcategories (i.e., 

for winter rail track greases and summer 

rail track greases). 

USDA does not believe that the above 

option is in the best interest of the 

BioPreferred Program at this time. 

Instead, USDA believes that the 

preferred procurement program under 

the BioPreferred Program is better 

served at this time by not 

subcategorizing rail track greases. By 

establishing a minimum biobased 

content at 30 percent (as proposed), all 

rail track greases would be available for 

preferred procurement (i.e., there would 

be no deferred effective dates for 

preferred procurement). This option 

allows the purchasing agency at least 

two manufacturers from which to select 

their product to meet their needs. If a 

purchasing agency needs a ‘‘summer’’

rail track grease, the purchasing agency 

would not select a winter or arctic rail 

track grease, but instead would have the 

option of selecting one of the ‘‘all 

season’’ rail track greases or a summer 

grease. Similarly, if a purchasing agency 

needs a ‘‘winter’’ rail track grease, it 

would have the option of selecting one 

of the winter rail track greases or one of 

the ‘‘all season’’ rail track greases. Thus, 

USDA is setting the minimum biobased 

content for rail track greases at 30 

percent, as was proposed. As additional 

information is obtained on more 

biobased rail track grease products, 

USDA will re-evaluate this subcategory 

with regard to further subcategorization 

and the minimum biobased content. 

Lastly, one of the commenters 

requested that USDA consider whether 

biodegradability should be included as 

a requirement for greases, in particularly 

for rail track greases. USDA agrees with 

the commenter that the level of 

biodegradability should be considered 

when purchasing greases or other 

products that may be released into the 

environment during their use or 

disposal. As discussed earlier in this 

preamble, USDA is requiring 

biodegradability as a prerequisite for 

some designated items when concern 

about the disposal of the items is a key 

criterion. USDA believes, however, that 

performance is the key factor in a 

purchaser’s decision as to which 

product within this designated item to 

purchase. In the case of items where 

USDA judges performance to be the key 

decision-making factor for purchasers, 

USDA will not require biodegradability 

as a prerequisite for participation in the 

preferred procurement program. 

Therefore, USDA is not requiring 

biodegradability as a requirement for 

greases. 

Dust Suppressants 

Comment: One commenter stated that 

the OSHA Hazard Communication 

Standard for dust suppressants does not 

convey whether the product does, in 

fact, suppress dust. 

Response: USDA agrees with the 

commenter. This OSHA standard, 

which was cited in the background 

document for one of the manufacturer’s 

products, is designed to ensure that 

information about health and physical 

hazards of chemicals and associated 

protective measures is disseminated to 

people in the workplace, and does not 

address performance standards for these 

products. Therefore, when evaluating 

the performance of dust suppressants, 

this particular standard is not relevant. 

Although USDA received no public 

comments related to the proposed 

minimum biobased content for dust 

suppressants, the proposed value was 

re-evaluated as part of USDA’s review of 

all biobased content data. For this item, 

five biobased content tests were 

available (69, 88, 89, 98, and 100 

percent). Because there is a significant 

break in the data between the 69 percent 

product and the 88 percent product, 

USDA reviewed the product 

performance information to determine if 

there was sufficient justification for 

creating subcategories or for setting the 

minimum biobased content based on the 

one product with a biobased content 

below 88 percent. No unique 

performance characteristics or 

applications were identified that would 

justify either subcategorization or 

setting the minimum biobased content 

based on the 69 percent product. 

Therefore, the minimum biobased 

content for this item is set at 85 percent, 

based on the product with the 88 

percent tested biobased content. 

Carpets 

Comment: One commenter proposed 

the following definition for carpet to 

better reflect the various ways carpets 

are made: Floor coverings composed of 

woven, tufted, or knitted fiber and a 

backing system. 

Response: USDA agrees with the 

commenter and has revised the 

definition accordingly in the final rule. 

Comment: One commenter asked if 

any of the tested carpet samples had 

biobased content in the face. The 

commenter pointed out that a carpet 

manufactured by Interface had 15 

percent biobased content in its face. 

Response: One of the carpet samples 

evaluated by USDA did have biobased 

material in the carpet face. The biobased 

content of this sample was 37 percent. 

Comment: Four commenters 

suggested that USDA set minimum 

biobased content requirements 

separately for backing and face used in 

carpets. A fifth commenter suggested 

that for now USDA proceed as 

proposed, but that USDA continue to 

collect additional biobased content data 

on carpet backing and carpet face fiber 

as these products become available, 

because carpet fiber and carpet backing 

can come from very different biobased 

material sources and it may make sense 

in the future to treat them separately. 

One commenter suggested setting 

separate minimum biobased content 

requirements for backing and face 

because the technology to produce 

biobased backings is considerably 

advanced over that of face fiber. In 

situations where a Federal buyer may be 

able to use a natural fiber faced carpet 

product, the commenter recommended 

that this be encouraged separately. 

One of the other commenters 

suggested that USDA create three 

subcategories as follows: 

Fiber face (broadloom)—materials that 

are used to make the face of carpet 

produced in widths generally wider 

than six feet. 

Fiber face (modular)—materials that 

are used to make the face of carpet 

produced in squares generally varying 


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in measurements from 18 inches to 36 

inches. 

Backing Systems—includes primary, 

secondary and attached cushion. 

According to this commenter, such an 

approach would be compatible with the 

way Federal agencies make carpet 

purchasing decisions; that is, in 

selecting carpets, agencies have to 

decide if they want broadloom or carpet 

tile, and then what type of face fiber 

(e.g., polyester, nylon, wool), type of 

pile (e.g., cut, loop), the weight of the 

face, the color and pattern, and the 

backing systems. All of these aspects of 

a carpet have to fit together to achieve 

the performance that the purchaser 

needs. Further, because buyers assemble 

a set of specifications when they 

purchase carpet, having subcategories of 

designated biobased item for carpet 

would better inform potential buyers 

about the availability of biobased 

content in various parts of the carpet 

construction and in various carpet types 

(e.g., broadloom and tiles). 

Response: USDA has not changed the 

definition of the designated item for the 

final rule. USDA acknowledges that the 

commenters have provided valid 

reasons why subcategorization of this 

designated item may be appropriate at 

some point. However, given the current 

state of development of biobased 

products within this designated item, 

USDA does not believe that sufficient 

data are available to support such a 

subcategorization. USDA will continue 

to gather and review information that 

could be used to support 

subcategorization of this designated 

item and the establishment of different 

minimum biobased content 

requirements in the future. 

Comment: One commenter felt that 

the proposed minimum biobased 

content (7 percent) was reasonable at 

this time, while two commenters 

recommend that the minimum biobased 

content for carpets be raised. One 

commenter stated that setting the initial 

minimum biobased content based on the 

lower end of the samples tested to date 

will provide more potential products 

and will encourage more widespread 

use of biobased products. The 

commenter pointed out that carpet 

containing biobased material is still very 

much in a development stage and the 

proposed level should help stimulate 

more development of biobased carpets. 

The two other commenters 

recommended raising the minimum 

biobased content to a minimum of 50 

percent. These commenters felt that 

such a minimum level was necessary for 

many of the proposed items in order to 

further the goal of the program. 

Response: USDA reviewed the 

biobased content data for carpets (10, 

10, 23, 24, 31, 35, and 37 percent) and 

found that the biobased content of the 

products that have been tested increases 

as the ‘‘weight’’ of the carpet increases. 

In most of these products the biobased 

material is used as the carpet backing 

and the thicker the backing, the higher 

the biobased content. The product with 

37 percent biobased content also has a 

small amount of biobased material 

incorporated into the carpet face. USDA 

considered the possibility of creating 

subcategories within this item based on 

performance features (such as 

durability) but does not have sufficient 

data to justify subcategorization at this 

time. Because there are no significant 

breaks in the range of data points and 

the overall range is small, USDA has 

retained the proposed 7 percent 

minimum biobased content for this 

item. USDA will continue to gather 

information on this item and will 

consider creating subcategories in a 

future rulemaking. 

Comment: One commenter stated that 

the Standard Title column in the 

Performance Standards document for 

carpeting does not address how well the 

carpet will wear. Another commenter 

stated that NSF International’s 

Sustainable Carpet Assessment Draft 

Standard (Draft Standard NSF 140–

2005) should be mentioned. The 

commenter pointed out that this has 

been published as a draft ANSI 

standard, and products can be certified 

to the draft standard. The commenter 

also pointed out that the state of 

California has adopted the gold and 

platinum levels of certification under 

this standard as their state purchasing 

specification. 

Response: USDA has not identified 

applicable performance standards for 

carpet wear. However, ASTM D3181 has 

been identified as a test method that can 

be used to measure carpet wear. While 

this method does not specify an 

‘‘acceptable’’ level of performance, it 

does define a standardized test 

procedure that can be used to develop 

carpet wear data that can then be used 

to compare expected wear between 

different carpet samples. USDA will add 

information on both the ASTM D3181 

test method and the NSF International’s 

Sustainable Carpet Assessment Draft 

Standard (Draft Standard NSF 140–

2005) to the information available on 

the BioPreferred Web site for this 

designated item. 

Comment: Three commenters urged 

USDA to have biobased procurement 

preference take priority over recycled 

content preference for carpets where 

carpet backing is made from recycled 

polyvinyl chloride (PVC). One of the 

commenters made this request because, 

according to the commenter, PVC has 

serious health impacts throughout its 

life cycle—notably the production of 

dioxin in manufacture and disposal and 

release of phthalates. This commenter 

pointed out that (1) dioxin reduction is 

a goal that the U.S. government has 

committed to through its signing of the 

Stockholm Treaty on Persistent Organic 

Pollutants and (2) neither issue is 

captured and compared by BEES 

analyses. 

The other two commenters similarly 

stated that the production of PVC has 

serious environmental health impacts 

that are not captured in the BEES 

analysis (such as dioxin production, 

reproductive toxicity, and 

neurotoxicity). The commenters stated 

that this is one clear case where 

biobased materials are preferable to 

recycled content. 

A fourth commenter noted that the 

CPG Guidelines for carpet currently 

apply only to: (1) Carpet with a 

polyester face, and (2) separate detached 

‘‘cushion’’ placed under the carpet 

during installation. Therefore, according 

to the commenter, there currently would 

not be an overlap between CPG 

guidelines for polyester face and 

detached cushion and biobased content 

in carpet backing systems (including 

attached cushion). The commenter also 

made numerous other points, presented 

in the remainder of this paragraph, 

concerning the relationship between the 

CPG program and the preferred 

procurement program under the 

BioPreferred Program. The commenter 

stated that EPA’s proposed CPG 

guidelines for nylon carpet face and 

backing with a recovered vinyl material 

content would not overlap or conflict 

with biobased content in a carpet’s 

polyurethane backing system (including 

attached cushion). Furthermore, EPA 

Guidelines would not require a buyer to 

purchase a carpet with a vinyl backing 

just because it is a CPG item. EPA has 

stated that a CPG recommendation does 

not preclude a procuring agency from 

purchasing carpet made of other 

materials (e.g., polyurethane backing 

system versus vinyl backing). For 

performance reasons, a Federal buyer 

may specify a polyurethane backing 

system because it has a number of 

performance advantages. For 

polyurethane laminate, these include 

preventing delamination and increasing 

product life, lower VOC levels, being 

compatible with low VOC adhesives 

used in installation, and creating a 

function liquid barrier for ease of 

cleaning (including the possibility of 

wick-back staining and adverse 


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moisture effects). Attached 

polyurethane cushion offers the 

additional benefits of lessening standing 

and walking fatigue by reducing heel 

strike and leg muscle response, reducing 

excess workplace sounds, resisting 

crushing and extending carpet life, and 

increasing thermal insulation. 

Furthermore, there are polyurethane 

backing systems commercially available 

that contain both biobased and 

recycled/recovered material. In 

addition, it would be possible to make 

a carpet that had a face with recycled/ 

recovered fiber content and a backing 

system with biobased content. 

Finally, a fifth commenter stated that 

EPA proposed a designation for nylon 

carpet, is working on finalizing that 

designation, and requested that USDA 

check on the status of EPA’s final rule 

for nylon carpet and adjust the above 

preamble and regulation language for 

the final rule accordingly. 

Response: USDA does not have the 

statutory authority to require that a 

preference be given to a biobased 

product over a competing recycled 

content product. However, USDA agrees 

that there are cases where the 

manufacture, use, and disposal of 

biobased products results in an overall 

benefit to the environment when 

compared to recycled content products. 

In the information that USDA has 

provided in the preamble to the 

proposed rule (71 FR 47591), we point 

out that Federal agencies may ask 

manufacturers for information on a 

product’s environmental and human 

health measures as determined by the 

BEES analysis. They can then use this 

information to make a more informed 

decision on which product meets their 

goals and needs. In sum, USDA 

encourages Federal agencies to consider 

the overall environmental and human 

health impacts when evaluating the 

performance of recycled content 

products and biobased products. 

USDA also points out that there may 

be cases where the specific features of 

the two products eliminates the 

‘‘appearance’’ of an overlap between 

biobased and recycled content products. 

As one commenter notes, the CPG 

guidelines for recycled content carpet 

apply to carpet with a polyester face and 

a separate detached cushion. The 

biobased carpets upon which USDA 

designation of the item is based 

primarily used the biobased material in 

the carpet backing. Also, as the 

commenter points out, there may be 

important performance considerations 

in choosing a carpet ‘‘system.’’ Thus, 

even though there may be the 

appearance of an overlap between the 

two preference programs, Federal 

agencies may not find a conflict once all 

of their performance criteria have been 

considered. 

Prior to publishing this notice, USDA 

checked the status of the EPA’s 

proposed designation of nylon carpet for 

the CPG program. As of the date of 

publication of this notice, EPA had not 

finalized the designation of nylon 

carpet. 

Carpet and Upholstery Cleaners 

Comment: One commenter stated that 

the proposed minimum biobased 

content of 34 percent for carpet 

upholstery cleaners is low and 

suggested that the word ‘‘biobased’’

implies a minimum biobased content of 

51 percent. 

Response: Where there is no other 

information available, USDA believes 

that it is not unreasonable to consider 

products as ‘‘biobased’’ if they are 

composed predominantly of biobased 

materials; that is, at least 50 percent of 

the product is biobased. However, for 

some products a 50 or 51 percent 

minimum biobased content may result 

in a product that is not viable. 

Furthermore, a 50 or 51 percent 

minimum biobased content could 

discourage the development of new 

biobased products or the continued 

development of existing biobased 

products. 

During the investigation of potential 

items for designation, USDA has 

identified many items where biobased 

product development has not reached 

the point where these products can be 

manufactured successfully with a 

biobased content of greater than 50 

percent. USDA believes that the 

designation of items where biobased 

products exist, even at the lower levels 

such as in the carpet and upholstery 

cleaners item, will not only create a 

demand for the existing products but 

will encourage the development of 

additional products with higher 

biobased contents. 

USDA has re-evaluated the products 

within this item and has decided that 

the creation of two subcategories within 

this item is justified. Three of the 12 

products for which USDA has 

information are described and marketed 

as ‘‘spot’’ or ‘‘stain’’ removers and the 

other nine products are marketed 

simply as carpet and upholstery 

cleaners, or general purpose cleaners. 

The tested biobased contents of the spot 

removers are 10, 15, and 19 percent. 

USDA has set the minimum biobased 

content for the spot removers 

subcategory at 7 percent, based on the 

product with a tested biobased content 

of 10 percent, because the range of the 

data points is so narrow. 

For the general purpose cleaners 

subcategory, the tested biobased 

contents are 37, 54, 57, 66, 67, 79, 80, 

82, and 98 percent. USDA reviewed the 

product information to determine 

whether specific performance or 

applicability features were claimed by 

any of the products. The two products 

with 57 and 66 percent biobased content 

were found to be formulated without 

any volatile organic compounds (VOC), 

while many of the other products were 

not. Because the absence of VOC is 

considered to be a desirable feature, and 

because no other significant 

performance features were found, USDA 

decided to set the minimum biobased 

content at a level that these two 

products would meet. Therefore, USDA 

has set the minimum biobased content 

at 54 percent based on the product with 

a tested biobased content of 57 percent. 

As new products are developed and as 

existing products are reformulated with 

higher biobased contents, USDA will 

continue to gather and review data and 

assess the possibility of raising the 

minimum biobased content for these 

subcategories. 

Comment: One commenter noted that 

the Green Seal standard for industrial 

and institutional cleaners (GS 37) 

includes carpet cleaners and should be 

mentioned. 

Response: USDA appreciates the 

information provided by the commenter 

and will add the information on GS 37 

to the list of applicable test methods and 

performance standards found on the 

BioPreferred Web site for this item. 

Comment: One commenter provided 

information on health and 

environmental aspects of carpet 

cleaning in response to USDA’s request 

for such information on any of the 

proposed designated items. Most of the 

information provided by the commenter 

dealt with water versus dry cleaning 

methods. 

Response: USDA appreciates the 

information provided by the commenter 

and will review it for potential addition 

to the technical information on carpet 

and upholstery cleaners on the 

BioPreferred Web site. 

V. Regulatory Information 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action has been determined 

significant for purposes of Executive 

Order 12866 and, therefore, has been 

reviewed by the Office of Management 

and Budget. We are not able to quantify 

the annual economic effect associated 

with this final rule. As discussed in the 

proposed rule, USDA made extensive 

efforts to obtain information on the 


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Federal agencies’ usage within the ten 

designated items, including their 

subcategories. These efforts were largely 

unsuccessful. Therefore attempts to 

quantify the economic impact of this 

rule would require estimation of the 

anticipated market penetration of 

biobased products based upon many 

assumptions. In addition, because 

agencies have the option of not 

purchasing designated items if costs are 

‘‘unreasonable,’’ the product is not 

readily available, or the product does 

not demonstrate necessary performance 

characteristics, certain assumptions may 

not be valid. While facing these 

quantitative challenges, USDA relied 

upon a qualitative assessment to 

determine the impacts of this 

rulemaking. This assessment was based 

primarily on the offsetting nature of the 

program (an increase in biobased 

products purchased with a 

corresponding decrease in petroleum 

products purchased). Consideration was 

also given to the fact that agencies may 

choose not to procure designated items 

due to unreasonable costs. 

1. Summary of Impacts 

This rulemaking is expected to have 

both positive and negative impacts to 

individual businesses, including small 

businesses. USDA anticipates that the 

biobased preferred procurement 

program will provide additional 

opportunities for businesses and 

manufacturers to begin supplying 

products under the designated biobased 

items to Federal agencies and their 

contractors. However, other businesses 

and manufacturers that supply only 

non-qualifying products and do not 

offer biobased alternatives may 

experience a decrease in demand from 

Federal agencies and their contractors. 

USDA is unable to determine the 

number of businesses, including small 

businesses, that may be adversely 

affected by this rule. The rule, however, 

will not affect existing purchase orders, 

nor will it preclude businesses from 

modifying their product lines to meet 

new requirements for designated 

biobased products. Because the extent to 

which procuring agencies will find the 

performance and costs of biobased 

products acceptable is unknown, it is 

impossible to quantify the actual 

economic effect of the rule. 

2. Benefits of the Rule 

The designation of these ten items, 

including their subcategories, provides 

the benefits outlined in the objectives of 

section 9002: To increase domestic 

demand for many agricultural 

commodities that can serve as 

feedstocks for production of biobased 

products; to spur development of the 

industrial base through value-added 

agricultural processing and 

manufacturing in rural communities; to 

enhance the Nation’s energy security by 

substituting biobased products for 

products derived from imported oil and 

natural gas; and to substitute products 

with a possibly more benign or 

beneficial environmental impact, as 

compared to the use of fossil 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 

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 


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increased industry competitiveness 

worldwide, thereby, creating 

opportunities for small entities. 

C. Executive Order 12630: 

Governmental Actions and Interference 

With Constitutionally Protected Property 

Rights 

This rule has been reviewed in 

accordance with Executive Order 12630, 

Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights, and does not contain policies 

that would have implications for these 

rights. 

D. Executive Order 12988: Civil Justice 

Reform 

This rule has been reviewed in 

accordance with Executive Order 12988, 

Civil Justice Reform. This rule does not 

preempt State or local laws, is not 

intended to have retroactive effect, and 

does not involve administrative appeals. 

E. Executive Order 13132: Federalism 

This rule does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

Provisions of this rule will not have a 

substantial direct effect on States or 

their political subdivisions or on the 

distribution of power and 

responsibilities among the various 

government levels. 

F. Unfunded Mandates Reform Act of 

1995 

This rule contains no Federal 

mandates under the regulatory 

provisions of Title II of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 

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

tribal governments, or the private sector. 

Therefore, a statement under section 

202 of UMRA is not required. 

G. Executive Order 12372: 

Intergovernmental Review of Federal 

Programs 

For the reasons set forth in the Final 

Rule Related Notice for 7 CFR part 3015, 

subpart V (48 FR 29115, June 24, 1983), 

this program is excluded from the scope 

of the Executive Order 12372, which 

requires intergovernmental consultation 

with State and local officials. This 

program does not directly affect State 

and local governments. 

H. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Today’s rule does not significantly or 

uniquely affect ‘‘one or more Indian 

tribes, * * * the relationship between 

the Federal Government and Indian 

tribes, or * * * the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes.’’

Thus, no further action is required 

under Executive Order 13175. 

I. Paperwork Reduction Act 

In accordance with the Paperwork 

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

through 3520), the information 

collection under this rule is currently 

approved under OMB control number 

0503–0011. 

J. Government Paperwork Elimination 

Act Compliance 

The Office of Energy Policy and New 

Uses is committed to compliance with 

the Government Paperwork Elimination 

Act (GPEA) (44 U.S.C. 3504 note), 

which requires Government agencies in 

general to provide the public the option 

of submitting information or transacting 

business electronically to the maximum 

extent possible. USDA is implementing 

an electronic information system for 

posting information voluntarily 

submitted by manufacturers or vendors 

on the products they intend to offer for 

preferred procurement under each 

designated item. For information 

pertinent to GPEA compliance related to 

this rule, please contact Marvin Duncan 

at (202) 401–0461. 

List of Subjects in 7 CFR Part 2902 

Biobased products, Procurement. 

■ For the reasons stated in the preamble, 

the Department of Agriculture is 

amending 7 CFR chapter XXIX as 

follows: 

CHAPTER XXIX—OFFICE OF ENERGY 

POLICY AND NEW USES, DEPARTMENT OF 

AGRICULTURE 

PART 2902—GUIDELINES FOR 

DESIGNATING BIOBASED PRODUCTS 

FOR FEDERAL PROCUREMENT 

■ 1. The authority citation for part 2902 

continues to read as follows: 

Authority: 7 U.S.C. 8102. 

■ 2. Add §§ 2902.25 through 2902.34 to 

subpart B to read as follows: 

§ 2902.25 2-Cycle engine oils. 

(a) Definition. Lubricants designed for 

use in 2-cycle engines to provide 

lubrication, decreased spark plug 

fouling, reduced deposit formation, and/ 

or reduced engine wear. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a biobased content of at least 34 

percent, which shall be based on the 

amount of qualifying biobased carbon in 

the product as a percent of the weight 

(mass) of the total organic carbon in the 

finished product. 

(c) Preference compliance date. No 

later than May 14, 2009, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased 2-cycle engine oils. 

By that date, Federal agencies that have 

the responsibility for drafting or 

reviewing specifications for items to be 

procured shall ensure that the relevant 

specifications require the use of 

biobased 2-cycle engine oils. 

§ 2902.26 Lip care products. 

(a) Definition. Personal care products 

formulated to replenish the moisture 

and/or prevent drying of the lips. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a biobased content of at least 82 

percent, which shall be based on the 

amount of qualifying biobased carbon in 

the product as a percent of the weight 

(mass) of the total organic carbon in the 

finished product. 

(c) Preference compliance date. No 

later than May 14, 2009, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased lip care products. 

By that date, Federal agencies that have 

the responsibility for drafting or 

reviewing specifications for items to be 

procured shall ensure that the relevant 

specifications require the use of 

biobased lip care products. 

§ 2902.27 Films. 

(a) Definition. (1) Products that are 

used in packaging, wrappings, linings, 

and other similar applications. 

(2) Films for which preferred 

procurement applies are: 

(i) Semi-durable films. Films that are 

designed to resist water, ammonia, and 

other compounds, to be re-used, and to 

not readily biodegrade. Products in this 

item are typically used in the 

production of bags and packaging 

materials. 

(ii) Non-durable films. Films that are 

intended for single use for short-term 

storage or protection before being 

discarded. Non-durable films that are 

designed to have longer lives when used 

are included in this item. 

(b) Minimum biobased content. The 

minimum biobased content for all films 

shall be based on the amount of 

qualifying biobased carbon in the 

product as a percent of the weight 

(mass) of the total organic carbon in the 

finished product. The applicable 

minimum biobased contents are: 

(1) Semi-durable films—45 percent. 

(2) Non-durable films—85 percent. 

(c) Preference compliance date. No 

later than May 14, 2009, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased semi-durable and 

non-durable films. By that date, Federal 


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agencies that have the responsibility for 

drafting or reviewing specifications for 

items to be procured shall ensure that 

the relevant specifications require the 

use of biobased semi-durable and nondurable films. 

(d) Determining overlap with an EPAdesignated recovered content product. 

Qualifying products within the semidurable films subcategory may overlap 

with the EPA-designated recovered 

content product: Plastic trash bags. 

USDA is requesting that manufacturers 

of these qualifying biobased products 

provide information for the BioPreferred 

Web site of qualifying biobased 

products about the intended uses of the 

product, information on whether or not 

the product contains any recovered 

material, in addition to biobased 

ingredients, and performance standards 

against which the product has been 

tested. This information will assist 

Federal agencies in determining 

whether or not a qualifying biobased 

product overlaps with EPA-designated 

plastic trash bags and which product 

should be afforded the preference in 

purchasing. 

Note to paragraph (d): Biobased semidurable film products within this designated 

item can compete with plastic trash bag 

products with recycled content. Under the 

Resource Conservation and Recovery Act of 

1976, section 6002, the U.S. Environmental 

Protection Agency designated plastic trash 

bags containing recovered materials as items 

for which Federal agencies must give 

preference in their purchasing programs. The 

designation can be found in the 

Comprehensive Procurement Guideline, 40 

CFR 247.16. EPA provides recovered 

materials content recommendations for 

plastic trash bags in the May 1, 1995, 

Recovered Materials Advisory Notice (RMAN 

I). The RMAN recommendations can be 

found on EPA’s Web site http:// 

www.epa.gov/epaoswer/non-hw/procure/ 

products.htm and then clicking on the 

appropriate product name. 

§ 2902.28 Stationary equipment hydraulic 

fluids. 

(a) Definition. Fluids formulated for 

use in stationary hydraulic equipment 

systems that have various mechanical 

parts, such as cylinders, pumps, valves, 

pistons, and gears, that are used for the 

transmission of power (and also for 

lubrication and/or wear, rust, and 

oxidation protection). 

(b) Minimum biobased content. The 

preferred procurement product must 

have a biobased content of at least 44 

percent, which shall be based on the 

amount of qualifying biobased carbon in 

the product as a percent of the weight 

(mass) of the total organic carbon in the 

finished product. 

(c) Preference compliance date. No 

later than May 14, 2009, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased stationary 

equipment hydraulic fluids. By that 

date, Federal agencies that have the 

responsibility for drafting or reviewing 

specifications for items to be procured 

shall ensure that the relevant 

specifications require the use of 

biobased stationary equipment 

hydraulic fluids. 

(d) Determining overlap with an EPAdesignated recovered content product. 

Qualifying biobased products that fall 

under this item may, in some cases, 

overlap with the EPA-designated 

recovered content product: Re-refined 

lubricating oils. USDA is requesting that 

manufacturers of these qualifying 

biobased products provide information 

for the BioPreferred Web site of 

qualifying biobased products about the 

intended uses of the product, 

information on whether or not the 

product contains any recovered 

material, in addition to biobased 

ingredients, and performance standards 

against which the product has been 

tested. This information will assist 

Federal agencies in determining 

whether or not a qualifying biobased 

product overlaps with EPA-designated 

re-refined lubricating oils and which 

product should be afforded the 

preference in purchasing. 

Note to paragraph (d): Stationary 

equipment hydraulic fluid products within 

this designated item can compete with 

hydraulic fluid products with recycled 

content. Under the Resource Conservation 

and Recovery Act of 1976, section 6002, the 

U.S. Environmental Protection Agency 

designated re-refined lubricating oils 

containing recovered materials as items for 

which Federal agencies must give preference 

in their purchasing programs. The 

designation can be found in the 

Comprehensive Procurement Guideline, 40 

CFR 247.11. EPA provides recovered 

materials content recommendations for rerefined lubricating oils in the May 1, 1995, 

Recovered Materials Advisory Notice (RMAN 

I). The RMAN recommendations can be 

found by accessing EPA’s Web site http:// 

www.epa.gov/epaoswer/non-hw/procure/ 

products.htm and then clicking on the 

appropriate product name. 

§ 2902.29 Disposable cutlery. 

(a) Definition. Hand-held, disposable 

utensils designed for one-time use in 

eating food. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a biobased content of at least 48 

percent, which shall be based on the 

amount of qualifying biobased carbon in 

the product as a percent of the weight 

(mass) of the total organic carbon in the 

finished product. 

(c) Preference compliance date. No 

later than May 14, 2009, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased disposable cutlery. 

By that date, Federal agencies that have 

the responsibility for drafting or 

reviewing specifications for items to be 

procured shall ensure that the relevant 

specifications require the use of 

biobased disposable cutlery. 

§ 2902.30 Glass cleaners. 

(a) Definition. Cleaning products 

designed specifically for use in cleaning 

glass surfaces, such as windows, 

mirrors, car windows, and computer 

monitors. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a 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. If the finished product 

is to be diluted before use, the biobased 

content of the cleaner must be 

determined before dilution. 

(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 glass 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 glass cleaners. 

§ 2902.31 Greases. 

(a) Definitions. (1) Lubricants 

composed of oils thickened to a 

semisolid or solid consistency using 

soaps, polymers or other solids, or other 

thickeners. 

(2) Greases for which preferred 

procurement applies are: 

(i) Food grade greases. Lubricants that 

are designed for use on food-processing 

equipment as a protective anti-rust film, 

as a release agent on gaskets or seals of 

tank closures, or on machine parts and 

equipment in locations in which there 

is exposure of the lubricated part to 

food. 

(ii) Multipurpose greases. Lubricants 

that are designed for general use. 

(iii) Rail track greases. Lubricants that 

are designed for use on railroad tracks 

or heavy crane tracks. 

(iv) Truck greases. Lubricants that are 

designed for use on the fifth wheel of 

tractor trailer trucks onto which the 

semi-trailer rests and pivots. 

(v) Greases not elsewhere specified. 

Lubricants that meet the general 


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Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Rules and Regulations 27975 

definition of greases as defined in 

paragraph (a)(1) of this section, but are 

not otherwise covered by paragraphs 

(a)(2)(i) through (iv) of this section. 

(b) Minimum biobased content. The 

minimum biobased content for all 

greases shall be based on the amount of 

qualifying biobased carbon in the 

product as a percent of the weight 

(mass) of the total organic carbon in the 

finished product. The applicable 

minimum biobased contents are: 

(1) Food grade grease—42 percent. 

(2) Multipurpose grease—72 percent. 

(3) Rail track grease—30 percent. 

(4) Truck grease—71 percent. 

(5) Greases not elsewhere specified—

75 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 greases. 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 greases. 

§ 2902.32 Dust suppressants. 

(a) Definition. Products formulated to 

reduce or eliminate the spread of dust 

associated with gravel roads, dirt 

parking lots, or similar sources of dust, 

including products used in equivalent 

indoor applications. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a biobased content of at least 85 

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. If the finished product 

is to be diluted before use, the biobased 

content of the suppressant must be 

determined before dilution. 

(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 dust suppressants. 

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 dust suppressants. 

§ 2902.33 Carpets. 

(a) Definition. Floor coverings 

composed of woven, tufted, or knitted 

fiber and a backing system. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a biobased content of at least 7 

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 carpet. 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 carpet. 

(d) Determining overlap with an EPAdesignated recovered content product. 

Qualifying biobased products that fall 

under this item may, in some cases, 

overlap with the EPA-designated 

recovered content product: Carpets 

(polyester). USDA is requesting that 

manufacturers of these qualifying 

biobased products provide information 

for the BioPreferred Web site of 

qualifying biobased products about the 

intended uses of the product, 

information on whether or not the 

product contains any recovered 

material, in addition to biobased 

ingredients, and performance standards 

against which the product has been 

tested. This information will assist 

Federal agencies in determining 

whether or not a qualifying biobased 

product overlaps with EPA-designated 

carpets (polyester) and which product 

should be afforded the preference in 

purchasing. 

Note to paragraph (d): Biobased carpets 

within this designated item can compete 

with polyester carpet products with recycled 

content. Under the Resource Conservation 

and Recovery Act of 1976, section 6002, the 

U.S. Environmental Protection Agency 

designated carpets (polyester) containing 

recovered materials as items for which 

Federal agencies must give preference in 

their purchasing programs. The designation 

can be found in the Comprehensive 

Procurement Guideline, 40 CFR 247.12. EPA 

provides recovered materials content 

recommendations for carpets (polyester) in 

the May 1, 1995, Recovered Materials 

Advisory Notice (RMAN I). The RMAN 

recommendations can be found on EPA’s 

Web site http://www.epa.gov/epaoswer/nonhw/procure/products.htm and then clicking 

on the appropriate product name. 

§ 2902.34 Carpet and upholstery cleaners. 

(a) Definition. (1) Cleaning products 

formulated specifically for use in 

cleaning carpets and upholstery, 

through a dry or wet process, found in 

locations such as houses, cars, and 

workplaces. 

(2) Carpet and upholstery cleaners for 

which preferred procurement applies 

are: 

(i) General purpose cleaners. Carpet 

and upholstery cleaners formulated for 

use in cleaning large areas such as the 

carpet in an entire room or the 

upholstery on an entire piece of 

furniture. 

(ii) Spot removers. Carpet and 

upholstery cleaners formulated for use 

in removing spots or stains in a small 

confined area. 

(b) Minimum biobased content. The 

minimum biobased content for all 

carpet and upholstery cleaners shall be 

based on the amount of qualifying 

biobased carbon in the product as a 

percent of the weight (mass) of the total 

organic carbon in the finished product. 

The applicable minimum biobased 

contents are: 

(1) General purpose cleaners—54 

percent. 

(2) Spot removers—7 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 carpet and 

upholstery 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 carpet and upholstery 

cleaners. 

Dated: May 2, 2008. 

Harry Baumes, 

Associate Director, Office of Energy Policy 

and New Uses, U.S. Department of 

Agriculture. 

[FR Doc. E8–10109 Filed 5–13–08; 8:45 am] 

BILLING CODE 3410–GL–P 


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