27928 Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Rules and Regulations 

1At proposal, this item was identified as 

‘‘insulating foam for wall construction.’’ Based on 

comments received, and as explained in this 

preamble, USDA has renamed this item as ‘‘plastic 

insulating foam for residential and commercial 

construction.’’ 

2At proposal, this item was identified as 

‘‘biodegradable containers.’’ Based on comments 

received, and as explained in this preamble, USDA 

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

3Based on comments received, and on additional 

data obtained, USDA has combined the proposed 

‘‘metalworking fluids’’ item with the ‘‘cutting, 

drilling, and tapping oils’’ item that was proposed 

for designation on October 11, 2006 (71 FR 59862). 

The combined item is designated as ‘‘metalworking 

fluids’’ and is included in the Round 4 final 

rulemaking. 

DEPARTMENT OF AGRICULTURE 

Office of Energy Policy and New Uses 

7 CFR Part 2902 

RIN 0503–AA30 

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 nine sections to designate items, 

including subcategories, within which 

biobased products will be afforded 

Federal procurement preference. USDA 

also is establishing minimum biobased 

content for each of these items and 

subcategories. 

In addition, USDA is amending the 

guidelines by providing exemptions to 

the Department of Defense and the 

National Aeronautic and Space 

Administration from the preferred 

procurement requirements. USDA is 

also making minor technical 

amendments to several sections of the 

guidelines to update information on the 

applicable Web site citation and to 

provide additional information on 

products that may overlap with 

products designated for preferred 

procurement under the U.S. 

Environmental Protection Agency’s 

Comprehensive Procurement Guideline 

for Products Containing Recovered 

Materials. 

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, two proposed rules in 

the Federal Register (FR) for the 

purposes of designating a total of 20 

items for the preferred procurement of 

biobased products by Federal agencies 

(referred hereafter in this FR notice as 

the ‘‘preferred procurement program’’). 

One of the proposed rules, RIN 0503– 

AA30, can be found at 71 FR 47566. The 

other proposed rule, RIN 0503–AA31, 

can be found at 71 FR 47590. This FR 

notice addresses the RIN 0503–AA30 

proposed rule. The other proposed rule 

is addressed in a separate FR notice. 

These two rulemakings are referred to in 

the preamble and on the BioPreferred 

Web site as Round 2 (RIN 0503–AA30) 

and Round 3 (RIN 0503–AA31). 

The Round 2 proposed rule proposed 

designating the following items for the 

preferred procurement program: 

Adhesive and mastic removers; plastic 

insulating foam for residential and 

commercial construction; 1 hand 

cleaners and sanitizers; composite 

panels; fluid-filled transformers; 

disposable containers; 2 fertilizers; 

metalworking fluids; 3 sorbents; and 

graffiti and grease remover products. 

Today’s final rule designates the 

following nine items, including 

subcategories, within which biobased 

products will be afforded Federal 

procurement preference: Adhesive and 

mastic removers; plastic insulating foam 

for residential and commercial 

construction; hand cleaners and 

sanitizers, including hand cleaners and 

hand sanitizers as subcategories; 

composite panels, including plastic 

lumber composite panels, acoustical 

composite panels, interior panels, 

structural interior panels, and structural 

wall panels as subcategories; fluid-filled 

transformers, including synthetic esterbased transformer fluids and vegetable 

oil-based transformer fluids as 

subcategories; disposable containers; 

fertilizers; sorbents; and graffiti and 

grease removers. USDA has determined 

that each of these items 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 valueadded 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 


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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 

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 

item ‘‘hand cleaners and sanitizers,’’

USDA has determined it is reasonable to 

create a ‘‘hand cleaner’’ subcategory and 

a ‘‘hand sanitizer’’ subcategory. 

Sanitizing specifications would be 

applicable to the latter subcategory, but 

not the former. In sum, USDA looks at 

the products within each item to 

evaluate whether there are groups of 

products within the item that meet 

different performance specifications 

and, where USDA finds this type of 

difference, it intends to create 

subcategories. 

For some items, however, USDA may 

not have sufficient information at the 

time of proposal to create subcategories 

within an item. For example, USDA 

may know that there are different 

performance specifications that de-icing 

products are required to meet, but it has 

only information on one type of de-icing 

product. In such instances, USDA may 

either designate the item without 

creating subcategories (i.e., defer the 

creation of subcategories) or designate 

one subcategory and defer designation 

of other subcategories within the item 

until additional information is obtained 

on products within these other 

subcategories. 

Within today’s rulemaking, USDA has 

created subcategories within three 

items. These items are: Hand cleaners 

and sanitizers (i.e., hand cleaners, hand 

sanitizers); composite panels (i.e., 

plastic lumber composite panels, 

acoustical composite panels, interior 

panels, structural interior panels, and 

structural wall panels); and fluid-filled 

transformers (i.e., synthetic ester-based 

fluids and vegetable oil-based fluids). 

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, in some cases, USDA has been 

able to obtain biobased content data for 

a single product within a designated 

item. As USDA obtains additional data 

on the biobased contents for products 

within these nine 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, the synthetic 

ester-based subcategory under the fluidfilled transformers designated item and 

the acoustical composite panels 

subcategory under the composite panels 

designated item 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. 

Biodegradability. Many of the 

products within items being designated 

for the preferred procurement program 

are designed to be disposed of after a 

single use and/or used in 

environmentally sensitive applications. 

USDA believes that biodegradability is 

an important feature that should be 

considered when purchasing, using, and 

disposing of these products. 

In simple terms, biodegradability 

measures the ability of microorganisms 

present in the disposal environment to 

completely consume the biobased 

carbon product within a reasonable time 

frame and in the specified environment. 

Composting is one such environment 

under which biodegradability occurs. In 

that composting environment, the 

explanation of the environment, the 

degree of microbial utilization 

(biodegradation), and the time frame 

within which it occurs are specified 

through established standards. 

Composting is but one environment 

under which biodegradability occurs. 

For example, non-floating biodegradable 

plastics can also biodegrade in a marine 

environment. 

For some designated items and 

subcategories, USDA is requiring 

biodegradability as a prerequisite for 

receiving preferred procurement status 

under the BioPreferred Program. For 

most items and subcategories, however, 

USDA has decided not to require 

biodegradability as a prerequisite for 

receiving preferred procurement status. 

For products within a designated item 

for which USDA will require 

biodegradability, USDA will specify the 

appropriate ASTM standards. 

USDA believes that the relationship 

between the performance and the 

biodegradability of products within an 

item (or subcategory) must be 

considered before biodegradability is 

included as a prerequisite for a 

designated item. For some designated 

items, product performance is the 

critical factor in a purchaser’s decision 

as to which product to purchase. Within 

other designated items, especially those 

designed for one-time use, disposal 

considerations may be equally 

important as performance 

considerations. 

Where USDA judges product 

performance to be the key decisionmaking factor for purchasers, USDA will 

not require biodegradability as a 

prerequisite for designation of items to 

participation in the preferred 

procurement program. In those cases 

where disposal considerations are 

believed to be as important as 

performance, however, USDA will 

require biodegradability for products 

within the designated item (or 

subcategory) if there are established 

biodegradability standards. 

In this rulemaking, products that fall 

within the disposable containers 

designated item are required to meet 

biodegradability standards to receive 

preferred procurement under the 

BioPreferred Program. For the remaining 

items in this rulemaking, USDA believes 

that the product performance 


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considerations outweigh 

biodegradability. USDA does, however, 

encourage procuring agencies to 

purchase biodegradable products in any 

case where they meet the agencies’

performance needs. 

USDA will continue to gather 

additional information on the 

relationship between performance and 

biodegradability of products within 

designated items and may add 

biodegradability as a prerequisite for 

other items at a later date. USDA will 

also make information regarding 

biodegradability of items available on 

the BioPreferred Web site. 

Preference compliance date. Because 

USDA has identified only one 

manufacturer of products within the 

synthetic ester-based fluid-filled 

transformers subcategory, the preference 

compliance date is deferred until USDA 

identifies two or more manufacturers of 

products in this subcategory. When it 

identifies two or more manufacturers, 

USDA will publish a document in the 

Federal Register announcing that 

Federal agencies will have one year 

from the date of publication of that 

announcement to give procurement 

preference to biobased synthetic esterbased fluid-filled transformers. 

USDA notes that although only one 

product from the acoustical composite 

panels subcategory has been tested for 

biobased content, nine manufacturers of 

products in this subcategory have been 

identified. Thus, USDA is not deferring 

the preference compliance date for this 

subcategory. 

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,’’ assuming such oil is available. 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 five items 

for preferred procurement for which 

there may be overlap with EPAdesignated recovered content products. 

These items are: (1) Plastic insulating 

foam for residential and commercial 

construction, (2) composite panels, (3) 

disposable containers, (4) sorbents, and 

(5) fertilizer. Depending on how they are 

to be used, qualifying biobased products 

under these five items may overlap, 

respectively, with building insulation; 

laminated paperboard and structural 

fiberboard, shower and restroom 

dividers, or signage; paper and paper 

products; sorbents; and fertilizer made 

from recovered organic material. EPA 

provides recovered materials content 

recommendations for these five 

recovered content products in various 

Recovered Materials Advisory Notices 

(RMAN), including RMAN I, RMAN II, 

RMAN III, and RMAN V. 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. 

Future designations. In making future 

designations, USDA will continue to 

conduct market searches to identify 

manufacturers of biobased products 

within designated items. USDA will 

then contact the identified 

manufacturers to solicit samples of their 

products for voluntary submission for 

biobased content testing and for the 

BEES analytical tool. Based on these 

results, USDA will then propose new 

items for designation for preferred 

procurement. 

As stated in the preamble to the first 

six items designated for preferred 

procurement (71 FR 13686, March 16, 

2006), USDA plans to identify 

approximately 10 items in each future 

rulemaking. USDA has developed a 

preliminary list of items for future 

designation. This list is available on the 

BioPreferred Web site. While this list 

presents an initial prioritization of items 

for designation, USDA cannot identify 

with any certainty which items will be 

presented in each of the future 

rulemakings. Items may be added or 

dropped and the information necessary 

to designate an item may take more time 

to obtain than an item lower on the 

prioritization list. 

Exemptions. In an earlier item 

designation rule (71 FR 13686), USDA 

created exemptions from the preferred 

procurement program’s requirements for 

procurements involving combat or 

combat-related missions and for 


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spacecraft systems and launch support 

equipment. Since publication of that 

final rule in the Federal Register, and in 

response to comments from the 

Department of Defense (DoD) and NASA 

(see General Comments, below), USDA 

has decided to create ‘‘blanket’’

exemptions for all items used in 

products or systems designed or 

procured for combat or combat-related 

missions and for spacecraft systems and 

launch support equipment, which will 

apply to all items designated for the 

procurement preference. Accordingly, 

in order to avoid repetition, this final 

rule removes all the exemption 

references contained in individual item 

designations and adds the identical 

language, as a blanket exemption, to the 

Guidelines, in subpart A. 

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. 

Items combined. The proposed 

‘‘metalworking fluids’’ item has been 

combined with the ‘‘cutting, drilling, 

and tapping oils’’ item that was 

proposed for designation on October 11, 

2006 (71 FR 59862). The combined item 

is now known as ‘‘metalworking fluids’’

and includes three subcategories: 

straight oils; high performance soluble, 

semi-synthetic, and synthetic 

metalworking fluids; and general 

purpose soluble, semi-synthetic, and 

synthetic metalworking fluids. The 

‘‘metalworking fluids’’ item is now 

included in the Round 4 final 

rulemaking replacing the proposed 

‘‘cutting, drilling, and tapping oils’’

item. 

Item names. The names for two of the 

remaining nine items were revised. 

‘‘Insulating foam for wall construction’’

is now ‘‘plastic insulating foam for 

residential and commercial 

construction.’’ ‘‘Biodegradable 

containers’’ is now ‘‘disposable 

containers.’’

Item definitions. The definitions for 

six of the remaining nine items were 

modified to varying degrees. These six 

items are: Adhesive and mastic 

removers; plastic insulating foam for 

residential and commercial 

construction; hand cleaners and 

sanitizers; composite panels; disposable 

containers; and fertilizers. Some 

definitions were modified and/or added 

in order to address the addition of 

subcategories (as discussed in the 

following paragraph). 

Subcategories. Subcategories were 

created for three items to reflect the 

different use applications where 

information was available. Hand 

cleaners and sanitizers were 

subcategorized into (1) hand cleaners 

and (2) hand sanitizers. Composite 

panels were subcategorized into (1) 

plastic lumber composite panels, (2) 

acoustical composite panels, (3) interior 

panels, (4) structural interior panels, 

and (5) structural wall panels. Fluidfilled transformers were subcategorized 

into (1) synthetic ester-based fluid-filled 

transformers and (2) vegetable oil-based 

fluid-filled transformers. 

Minimum biobased contents. Several 

of the proposed minimum biobased 

contents for the designated items have 

changed for the final rule in response to 

public comments and in consideration 

of available product performance 

information. As a result of the 

comments received regarding the 

proposed minimum biobased contents 

and the availability of additional 

biobased content tests for several items, 

USDA re-evaluated the proposed 

minimum biobased contents of all of the 

items. 

Items for which the minimum 

biobased content was changed from the 

proposed level are presented here and 

the rationale for the changes is 

discussed in the section of this 

preamble presenting the item-specific 

comments and responses. 

For plastic insulating foam, the 

proposed minimum biobased content of 

8 percent was changed to 7 percent. 

For the proposed hand cleaner item 

the proposed minimum biobased 

content of 18 percent was changed to 64 

percent for the hand cleaners 

subcategory and 73 percent for the hand 

sanitizers subcategory. 

For the proposed composite panels 

item the proposed minimum biobased 

content of 26 percent was changed for 

each of the newly established 

subcategories. In this final rule, 

minimum biobased contents were set for 

each subcategory, as follows: Plastic 

lumber composite panels—23 percent, 

acoustical composite panels—37 

percent, interior panels—55 percent, 

structural interior panels—89 percent, 

and structural wall panels—94 percent. 

For the proposed fluid-filled 

transformers item the proposed 

minimum biobased content of 66 

percent was retained for the synthetic 

ester-based subcategory and the 

minimum biobased content for the 

vegetable oil-based subcategory was set 

at 95 percent. 

For the proposed biodegradable 

containers item (now disposable 

containers), the proposed minimum 

biobased content of 96 percent was 

changed to 72 percent. 

For sorbents, the proposed minimum 

biobased content of 52 percent was 

changed to 89 percent. 

For graffiti and grease removers, the 

proposed minimum biobased content of 

21 percent was changed to 34 percent. 

Preference compliance date. For the 

synthetic ester-based fluid-filled 

transformers subcategory, the preference 

compliance date is deferred until USDA 

identifies two or more manufacturers in 

this subcategory. When it identifies two 

or more manufacturers in this 

subcategory, USDA will publish a 

document in the Federal Register 

announcing that Federal agencies will 

have one year from the date of 

publication of that announcement to 

give procurement preference to biobased 

synthetic ester-based fluid-filled 

transformers. 

Overlap with EPA CPG products. For 

composite panels, potential overlap 

with EPA CPG products was added to 

the final rule. Then, for all items that 

may overlap with EPA CPG products 

(plastic insulating foam for residential 

and commercial construction; 

composite panels; disposable 

containers; sorbents; and fertilizer), a 

note was added to facilitate finding 

information on the EPA CPG products. 

Biodegradability. For disposable 

containers, a biodegradability 

requirement was added. 

Exemptions. Exemptions from the 

preferred procurement requirements 

were added for all items, including their 

subcategories, used in certain 

applications within DoD and NASA. For 

DoD, exemptions were provided for 

‘‘products or systems designed or 

procured for combat or combat-related 

missions.’’ For NASA, exemptions were 

provided for ‘‘spacecraft systems and 

launch support equipment.’’ These 

exemptions were added in the 

Guidelines for the procurement program 

(subpart A) rather than under each item 

designation. At proposal, this 

exemption was proposed only for the 

fluid filled transformer item. Additional 

discussion of this decision is presented 

in the responses to comments later in 

this Preamble. 

IV. Discussion of Comments 

USDA solicited comments on the 

proposed rule for 60 days ending on 

October 16, 2006. USDA received 

comments from 29 commenters by that 

date. The comments were from 

individual manufacturers, trade 

organizations, private groups, and 

Federal agencies. 

The comments contained in this 

Federal Register (FR) notice address 

general and specific comments related 

to Round 2 items. In addition to the 


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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 2 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 2 Designation under Final Rules. 

This will bring you to the link to the 

technical support document. 

Several of the commenters expressed 

appreciation for USDA’s effort in 

designating items for preferred 

procurement. While these comments are 

not presented within this preamble, 

USDA thanks the commenters for such 

comments. 

Following the comments and 

responses, USDA discusses the 

amendments being made to various 

sections of 7 CFR part 2902 regarding 

reference to the Web site and the 

provision of additional information on 

products that may overlap with 

products designated for preferred 

procurement under EPA’s CPG program. 

General Comments 

Reporting of Biobased Purchases 

Comment: One commenter suggested 

that USDA consider the method that is 

least burdensome to Federal agencies 

when the agencies are required, per 

Executive Order 13101, to estimate their 

purchases of products placed on the 

USDA Biobased Products List and 

report on their estimated purchases of 

such products to the Secretary of 

Agriculture. 

Response: Under FSRIA, the Office of 

Federal Procurement Policy (OFPP) 

reports to Congress biennially about 

Federal agency progress in 

implementing the section 9002 

purchasing requirements. Under E.O. 

13423, the Federal Environmental 

Executive reports to the President 

biennially about Federal agency 

progress in implementing the 

purchasing requirements of the E.O., 

including the purchase of biobased 

products. OFPP and the Office of the 

Federal Environmental Executive 

(OFEE) jointly send a data questionnaire 

to the agencies to gather information for 

these reports. As a member of the interagency Reporting Workgroup that makes 

recommendations to OFPP and OFEE 

about reporting mechanisms, USDA will 

work with the other members to 

recommend the least burdensome 

mechanisms for tracking and reporting 

on purchases of the designated biobased 

items. 

Warranties 

Comment: Two commenters 

expressed concern about a biobased 

product’s effects on warranties. One 

commenter stated that USDA should 

consider creating a fact sheet about 

warranty myths and realities, including 

the type of questions buyers should ask 

Original Equipment Manufacturers 

(OEMs) and contractors to make sure 

that the warranty issue is real and not 

just an excuse to avoid purchasing a 

biobased product. 

The second commenter recommended 

that USDA fully address the effect of 

biobased product usage on equipment 

warranties (i.e., such use as might void 

equipment warranties) prior to final 

item designation. 

Response: USDA shares the 

commenters’ concerns about the 

potential effect of biobased products on 

warranties. As noted in the response to 

a similar comment on the first 

designated item rule (see 71 FR 13702), 

USDA is working with manufacturers 

on the issue of maintenance warranties 

as time and resources allow. USDA is 

contacting manufacturers, industry 

associations, and service professionals 

to request information about warranty 

issues. About 200 different contacts 

have been made, but the results have 

been inconclusive. Many of the contacts 

have been reluctant to discuss warranty 

issues related to either their products or 

to biobased components. Additional 

information on the results of USDA’s 

information gathering efforts are 

available on the BioPreferred Web site. 

At this time, USDA does not have 

sufficient information to determine 

whether or not the manufacturers of 

biobased products will state that the use 

of these products will void maintenance 

warranties. This does not mean that the 

use of such products will void 

warranties, only that USDA does not 

currently have such information. As 

additional information becomes 

available on warranties, USDA will 

make such information available on the 

BioPreferred Web site. 

Because it is difficult for USDA to 

fully address the warranty concern for 

each product within each item 

designated for preferred procurement, 

USDA continues to encourage 

manufacturers of biobased products to 

test their products against all relevant 

standards, including those that would 

affect warranties, and to work with 

OEMs to ensure that the biobased 

products will not void maintenance 

warranties when used. Whenever 

manufacturers of biobased products find 

that existing performance standards for 

maintenance warranties are not relevant 

or appropriate for biobased products, 

USDA is willing to assist them in 

working with the appropriate OEMs to 

develop tests that are relevant and 

appropriate for the end uses in which 

biobased products are intended. If, in 

spite of these efforts, there is 

insufficient information regarding the 

performance of a biobased product and 

its effect on equipment maintenance 

warranties, USDA notes that the 

procurement agent would not be 

required to buy such a product. 

Industry and Agency Meeting/Forum 

Comment: One commenter suggested 

that USDA consider sponsoring an 

industry and government forum or 

meeting to discuss program 

implementation issues. Topics 

identified by the commenter included 

how best to identify and communicate 

performance standard information and 

warranty issues associated with 

biobased products and original 

equipment manufacturers. 

Response: USDA agrees with the 

commenter that a forum-type meeting to 

address implementation issues, 

including those identified by the 

commenter, has merit and will consider 

hosting such a forum as time and 

resources allow. 

Supporting Documentation—

Performance Standards 

Comment: Two commenters stated 

that the background information for the 

proposed designated items did not 

distinguish between test methods and 

performance standards. One commenter 

stated that the entry in the column 

‘‘Standard Title’’ under Performance 

Standards (as found in the Supporting 

Documentation on the BioPreferred Web 

site) does not appear to have much to 

do with performance. The commenter 

pointed, as an example, to the OSHA 

Hazard Communication Standard as not 

providing information as to whether the 

biobased adhesive or grease remover 

will work as intended. The second 

commenter stated that most of the 

‘‘performance standards’’ listed by 

USDA are not really performance 

standards but are rather ‘‘test methods.’’

This commenter noted that while some 

test methods listed are relevant to 

meeting performance standards for some 

applications, others are not. The second 

commenter recommended that test 

methods be differentiated from 

performance standards. 


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The second commenter also stated 

that end users are well aware of these 

performance standards because the 

operating manuals for their equipment 

will list the standards and that endusers will want to know from a 

manufacturer if its product meets that 

performance standard. For products that 

do not have recognized performance 

standards, such as glass cleaners, the 

commenter stated that users may have 

to try a sample to determine if the 

product meets their needs. The 

commenter also stated that in other 

cases, such as carpets or insulation, 

specifications for purchase will be set 

by designers, architects, and/or 

engineers based on a specific project’s 

needs, and manufacturers would have to 

show the buyers that they can meet the 

specification. For these reasons, the 

commenter recommended that, rather 

than providing a list of test methods, 

USDA should offer manufacturers the 

opportunity to provide as much 

performance data as possible on the 

BioPreferred Web site when they list 

their products. By doing so, the 

commenter continued, information will 

be provided to potential buyers and 

users so that they can compare the 

performance data with the particular 

performance requirements they need for 

the product. 

Response: USDA agrees with the 

commenters that many of the standards 

listed under ‘‘Standard Title’’ in the 

background information are test 

methods and not performance 

standards. USDA further agrees that 

such distinctions should be made in the 

background document. USDA believes 

that it is necessary to continue to report 

both test methods and performance 

standards because it is very important 

that consistent test methods are used 

when measuring the performance of a 

product. USDA will, therefore, update 

the background information on the 

BioPreferred Web site to reflect the 

distinction between test methods and 

performance standards. Further, as 

additional information on performance 

standards is obtained, USDA will 

update the BioPreferred Web site to 

include such information. The results of 

the effort to distinguish between test 

methods and performance standards for 

the designated items in this final rule 

can be found in Chapter 1.0 of the 

document ‘‘Technical Support for Final 

Rule—Round 2 Designated Items,’’

which is available on the BioPreferred 

Web site. 

USDA also agrees that manufacturers 

need to provide as much information as 

possible on the performance of their 

products, especially as measured against 

recognized performance standards. 

USDA is working with manufacturers to 

make this information available by 

posting on the BioPreferred Web site 

links to the manufacturer’s Web site for 

additional information on biobased 

product performance. 

Reduced Greenhouse Gases 

Comment: Three commenters 

recommended that USDA continue to 

emphasize the potential of biobased 

products to reduce greenhouse gas 

emissions as part of the preferred 

procurement program. 

Response: USDA agrees with the 

commenters that the potential for 

biobased products to reduce greenhouse 

gas emissions is an important attribute 

of which purchasers and others need to 

be aware. USDA will continue to 

identify this potential in preambles and 

in the background information on the 

BioPreferred Web site. USDA welcomes 

the commenters, and others, to provide 

USDA with ‘‘cradle-to-grave’’ studies 

that demonstrate this potential attribute. 

USDA would then consider putting 

such results on the BioPreferred Web 

site. 

Biobased Materials—Prequalify 

Comment: Three commenters 

recommended that USDA develop a 

program for prequalifying the biobased 

material that will form the basis of 

biobased products. The commenters 

point out that biobased products are 

made from biobased materials. 

According to the commenters, testing 

and qualifying biobased materials will 

greatly accelerate the designation 

process for preferred procurement—if a 

product is made from a prequalifed 

biobased material, it is then a simple 

matter for the manufacturer of the 

bioproduct to provide information to 

USDA on its biobased composition and, 

if verification of manufacturer supplied 

compositional information is needed, 

the ASTM biobased content test can 

always be conducted as needed. 

The commenters also suggested 

making prequalified biobased materials 

part of the ‘‘U.S.D.A. Certified’’ labeling 

program. When part of the labeling 

program, manufacturers would be able, 

according to the commenter, to contact 

biomaterial suppliers for information on 

the performance and other 

characteristics to determine the most 

appropriate biomaterials for their 

particular application. According to the 

commenters, this would expedite the 

development of biobased products 

consistent with the Congressional intent 

of FSRIA. 

Response: USDA agrees that there is 

merit in the concept of prequalifying 

biobased materials that are used to 

manufacture biobased products for 

preferred procurement. However, as 

noted in a response to public comments 

on the first six items designated for 

preferred procurement (71 FR 13702), 

section 9002 of FSRIA requires USDA to 

designated ‘‘products’’ for preferred 

procurement. Section 9001 of FSRIA 

defines ‘‘biobased products’’ as ‘‘a 

product determined by the Secretary to 

be a commercial or industrial product 

(other than food or feed) that is 

composed, in whole or in significant 

part, of biological products or renewable 

domestic agricultural materials * * * or 

forestry materials.’’ Based on this 

definition, USDA does not believe it has 

the authority to consider ‘‘biobased 

material used in the manufacture of 

biobased products’’ to be ‘‘products.’’

USDA is, however, gathering 

information on biobased intermediate 

feedstocks and developing a list of these 

materials. USDA will provide this 

information on the BioPreferred Web 

site. USDA also notes that NIST 

currently includes soybeans, corn, 

wheat, rice, cotton, canola, potatoes, 

and wool as feedstocks when 

conducting the BEES life cycle analysis 

for biobased products. 

USDA has considered the 

commenter’s recommendation to make 

prequalified biobased materials part of 

the ‘‘U.S.D.A. Certified’’ labeling 

program in developing the proposed 

rule for that program. 

Recycled vs. Biobased Products 

Comment: Three commenters agreed 

with USDA that additional information 

should be sought first from 

manufacturers prior to procurement 

decisions where recycled content and 

biobased materials products are both 

being considered for the same 

application. Two of the commenters 

went on to recommend that USDA’s 

Preferential Procurement Guidelines for 

Biobased Products be upgraded to 

include the proposal in this rulemaking 

for handling the ‘‘overlap’’ between the 

recycled content and biobased content 

programs. 

Response: While USDA appreciates 

the commenters’ suggestion on revising 

the Guidelines to reflect the overlap 

potential between biobased products 

and products with recycled content, 

USDA will continue to discuss such 

overlap within each of the designated 

item rulemakings on an item-by-item 

basis. 

Mature Markets 

Comment: Three commenters urged 

USDA to not exclude natural fiber and 

other biobased products with mature 

markets in 1972. The commenters felt 


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that by doing so petroleum plastic 

blends (such as in leaf collection bags) 

would get an unfair advantage over 

entirely natural fiber biobased products 

(e.g., a Kraft paper leaf collection bag 

made from 100 percent plant matter). 

Response: USDA extensively 

addressed the issue of mature markets 

in the final rule for the Guidelines for 

Designating Biobased Products for 

Federal Procurement (70 FR 1792). In 

that notice, USDA explained the 

rationale for excluding products that 

had mature markets in 1972 from the 

preferred procurement program—‘‘The 

intent of section 9002, as described in 

the conference report accompanying 

FSRIA, is to stimulate the production of 

new biobased products and to energize 

emerging markets for those products. 

Given that, USDA finds that it is 

entirely appropriate for the guidelines to 

exclude products having mature 

markets from the program.’’ (see 70 FR 

1802). This was finalized in paragraph 

2902.5(c)(2). USDA reiterated its 

position in the final rule for the first six 

items designated for preferred 

procurement and explained further on 

its reasons for excluding mature market 

products (see 71 FR 13701). 

For the reasons stated in these two FR 

notices, the USDA will continue to 

exclude mature market products as they 

are identified within items designated 

for preferred procurement. 

In addition, in its response to 

comments on the first six items 

proposed for designation for preferred 

procurement, USDA stated: ‘‘As USDA 

designates additional items for preferred 

procurement, USDA will make 

determinations of whether mature 

markets existed in 1972 and, if so, 

identify those materials that do not 

qualify as biobased material. Unless a 

material is specifically identified as a 

material not qualifying as a biobased 

feedstock, such as cotton fiber has been 

for bedding, bed linens, and towels, the 

material may be used in any designated 

item and will be considered a qualifying 

biobased feedstock.’’ (see 71 FR 13702). 

None of the 20 items proposed for 

preferred procurement in the two 

proposed rules were identified as 

having mature markets for which 

preferred procurement would not be 

given. Therefore, the specific example of 

Kraft paper leaf collection bags made 

from 100 percent plant matter provided 

by the commenters would qualify for 

preferred procurement under this 

program. 

Sustainability Guidelines for 

Biopolymers 

Comment: One commenter noted that 

biobased products are not automatically 

better for the environment than the 

items they replace, depending upon the 

way the feedstock is grown, how the 

product is manufactured, and how the 

product is handled at the end of its life. 

The commenter further noted that a 

group of non-government organizations 

are working with companies interested 

in manufacturing and using biobased 

products to develop sustainability 

guidelines for biopolymers and urged 

the federal government to engage in this 

process and consider how it can in 

future rulemakings encourage the 

biopolymer industry to move toward 

truly sustainable products. 

Response: USDA agrees with the 

commenter that biobased products are 

not necessarily better for the 

environment than the items that they 

replace. This emphasizes the need for 

life-cycle analyses (LCAs), which is the 

type of information generated under the 

BEES analysis. USDA welcomes 

additional information on biobased 

products, including aspects concerning 

sustainability, and urges the commenter 

and the non-governmental organizations 

to provide the results of their 

sustainability guidelines to USDA and 

other Federal agencies. USDA will then 

consider posting validated information 

on the BioPreferred Web site as 

additional information available to 

Federal purchasing agencies. 

Life-Cycle Analysis (LCA) 

Comment: One commenter 

commended USDA for considering 

LCAs and the use of the BEES as a tool 

for LCA and urged USDA to be cautious 

in its endorsement of Green Seal, stating 

that some Green Seal standards are 

several years old and were not 

developed using a true consensus based 

approach. 

Response: USDA appreciates the 

commenter’s recognition of the use of 

BEES as a tool for LCA. With regard to 

Green Seal standards, it is USDA’s 

intent to provide information on all 

standards that are being used for 

products within items being proposed 

for designation. The identification of 

such standards, however, does not 

represent an endorsement on the part of 

USDA of any standard, including any 

Green Seal standard. Because the 

programs provide information that 

many prospective purchasers of 

biobased products may find useful, 

however, USDA will continue to 

identify and post information 

concerning these programs on the 

BioPreferred Web site. 

For the designated items in this final 

rule, USDA identified two relevant 

Green Seal standards. These are GS–34, 

Cleaning/Degreasing Agents, and GS–

41, Hand Cleaners and Hand Soaps 

Used for Industrial and Institutional 

Cleaners. These two GS standards are 

relevant, respectively, to graffiti and 

grease removers and to hand cleaners 

and sanitizers. These standards can be 

accessed through the Green Seal Web 

site at http://www.greenseal.org/ 

certification/standards.cfm 

Leadership in Energy and 

Environmental Design (LEED) 

Comment: One commenter requested 

that USDA remove references to the 

LEED green building rating system in 

the final rule because, according to the 

commenter, (1) the LEED system was 

not developed using an LCA, (2) the 

organization that developed it (US 

Green Building Council) recognizes that 

the rapidly renewable credit is flawed 

and is not supportable, based on an 

LCA, and (3) there are other green 

building rating systems (such as Green 

Globes, which is being examined by 

several U.S. Federal agencies) that 

already incorporate aspects of life-cycle 

assessment. However, if USDA retains 

the reference, the commenter 

recommended that USDA indicate the 

lack of an LCA approach in LEED, and 

that USGBC has proposed to its 

membership that the rapidly renewable 

credit be removed. 

The commenter further suggested that 

USDA discuss and incorporate Green 

Globes into the rule, based on the fact 

that it already incorporates aspects of 

LCA. 

Response: USDA appreciates the 

information provided by the commenter 

on the LEED. USDA’s identification of 

the LEED rating system does not 

represent an endorsement of LEED, but 

simply acknowledges its existence and 

use. USDA will consider further 

clarification of LEED if and when it is 

referenced in future rulemakings for the 

BioPreferred Program, as well as 

considering mentioning Green Globes, 

where appropriate. 

Exemptions 

Comment: One commenter requested 

that the rule reflect exemptions for all 

items used in products and systems 

designed or procured for combat or 

combat-related missions and that this 

exemption be extended to all services 

and products contracted for combat or 

combat-related missions. The 

commenter pointed out that USDA has 

stated that it is inappropriate to apply 

the preferred procurement requirement 

unless the DoD has documented that 

such products can meet the performance 

requirements for such equipment and 

are available in sufficient supply to 

meet domestic and overseas deployment 


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needs. According to the commenter, 

their experiences to date have 

reinforced that it is not practical at this 

time to conduct the testing and 

evaluation necessary for such 

performance documentation for all 

products used in combat. 

Response: USDA has discussed, at 

length, with DoD the need for 

exempting from preferred procurement 

items whose products are used in 

combat or combat-related situations. 

USDA has also had similar discussions 

with NASA regarding products used in 

space and critical mission areas. These 

discussions have included whether 

there is a need for exemptions and, if so, 

whether exemptions should be on an 

item-by-item basis or whether a 

‘‘blanket’’ exemption should be 

implemented for these two agencies. As 

a result of these discussions, USDA is 

exempting from preferred procurement 

all items used in products or systems 

designed or procured for combat or 

combat-related missions and for 

spacecraft systems and launch support 

equipment. The exemption is stated in 

the Guidelines (subpart A) rather than 

under each item designation. USDA 

believes it is inappropriate to apply the 

biobased purchasing requirement to 

DoD tactical equipment and NASA 

mission-critical equipment at this time. 

However, USDA reserves the right to 

withdraw such exemptions, on an itemby-item basis, as biobased products are 

demonstrated to meet all of the 

performance requirements of these 

applications. 

Comment: One commenter stated that 

the proposed exemptions for critical 

applications are unnecessary given the 

provisions of the Guidelines, noting that 

no product, biobased or not, should be 

used in any critical application if it does 

not meet performance requirements. 

The commenter is concerned that 

proposing an exemption that limits the 

use of biobased products to ‘‘more 

conventional applications’’ implies that 

biobased products are inferior in their 

performance characteristics to the 

incumbent product. According to the 

commenter, not only is this not the case, 

but it sends the wrong message 

regarding the potential benefits of and 

uses for biobased products. 

Response: USDA agrees with the 

commenter that providing exemptions 

could imply that biobased products are 

inferior to non-biobased products. 

USDA can only emphasize that these 

exemptions are not intended to convey 

such meaning. USDA points out, 

however, that the statute does allow 

agencies the ability to not purchase a 

biobased product if it does not meet 

applicable performance standards. 

Because so many biobased products are 

in their infancy, more effort is required 

on the part of their manufacturers to 

demonstrate that the biobased products 

perform as well as their non-biobased 

counterparts, whether in conventional 

or non-conventional applications. 

USDA also agrees that all Federal 

agencies have the same ‘‘off ramps’’

available to them in determining 

whether or not to purchase biobased 

products within a designated item. 

USDA has received repeated requests 

from both DoD and NASA for 

exemptions. DoD is particularly 

concerned about the use of biobased 

products in combat or combat-related 

situations and NASA about the use of 

any biobased product in critical mission 

areas. USDA has reached agreement 

with these agencies to provide 

‘‘blanket’’ exemptions for both NASA 

and DoD. Providing this blanket 

exemption will allow these agencies the 

flexibility to choose how they utilize 

their resources in evaluating various 

biobased products and determining 

which products meet their critical 

requirements. 

USDA recognizes that such blanket 

exemptions could discourage 

manufacturers from developing 

biobased products for these two 

‘‘markets.’’ However, if manufacturers of 

biobased products can demonstrate to 

the satisfaction of these two agencies 

that biobased products can meet all of 

their concerns, USDA would reconsider 

such exemptions on an item-by-item 

basis. 

Item Designations 

Comment: Two commenters requested 

that USDA not designate items for 

preferred procurement where the 

products within the item contain 

nanoparticles because of the many 

outstanding public and environmental 

health issues surrounding the use of 

nanotechnology. According to the 

commenters, there are no manufacturing 

standards, labeling regulations, or safety 

guidelines for nanoparticle use and the 

effect of nanoparticles on health and the 

environment are not yet understood. 

Response: At this time, the statute for 

designating biobased products for 

preferred procurement does not address 

the issue of products made with 

nanoparticles. Congress would need to 

change the statute in order for USDA to 

consider it within the BioPreferred 

program. Therefore, USDA does not 

address the issue in this rulemaking. 

USDA points out that EPA is 

conducting several major activities with 

respect to nanotechnology including, 

but not limited to, initiating the 

development of a voluntary pilot 

program for the evaluation of 

nanomaterials and reviewing 

nanomaterial new chemical submissions 

in the Office of Pollution Prevention 

and Toxics. For additional information 

on the work EPA is pursuing with 

regard to nanomaterials, access the Web 

site http://www.epa.gov/oppt/nano/. 

Environmental and Health information 

Comment: One commenter stated that 

providing agencies with tables 

summarizing BEES analyses does not 

satisfy the statutory requirement that 

USDA provide agencies with 

information on the public health and 

environmental benefits of biobased 

products. According to the commenter, 

the summary tables included in the 

preamble to the proposed products 

designation rule do not provide useful 

information to agencies, because the 

information is not provided in the 

context of comparisons with nonbiobased products. The commenter, 

therefore, recommended that USDA 

provide narrative information and 

comparative reference points on the 

environmental and public health 

benefits of the designated products by 

placing this information in the technical 

background documents or in case 

studies on the BioPreferred Web site. 

The commenter then provided examples 

of information that could help agencies 

make a ‘‘best value’’ determination. 

Another commenter provided a list of 

some of the benefits associated with 

using soy in industrial products. 

Response: The BEES analysis 

provides a factual review of 

environmental and health effects of 

products. The results of the BEES 

analysis allow the comparison of similar 

products that have undergone the 

analysis. For example, one can compare 

the relative environmental and health 

effects between two biobased disposable 

containers. In addition, the BEES 

analysis provides information on the 

carbon cycle, which is being 

acknowledged as an increasingly 

important environmental effect. Thus, 

the BEES analysis provides important 

and relevant information on the 

environmental and health effects of 

biobased products. 

USDA agrees with the commenter that 

providing additional information on 

manufacturers’ claims regarding the 

public health and environmental effects 

of their biobased products on the 

BioPreferred Web site is useful, and has 

begun posting such information. As 

more information on the public health 

and environmental effects of biobased 

products is obtained, USDA will 

continue to post such information. If the 


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information is anecdotal, it will be so 

indicated. 

USDA also agrees that quantitative, 

science-based, comparative reference 

points on the environmental and public 

health benefits of the designated 

products would be useful. USDA, 

therefore, encourages procurement 

officials to request this information from 

manufacturers of biobased products and 

from manufactures of nonbiobased 

products to facilitate the comparison of 

products. Until then, BEES results for 

both biobased and traditional products, 

covering a handful of proposed and 

designated items, are available through 

the free BEES 4.0 tool published by 

NIST in May 2007 (http:// 

www.bfrl.nist.gov/oae/bees.html). 

USDA thanks the other commenter for 

its information on using soy in 

industrial products and will post such 

information, as appropriate, on the 

BioPreferred Web site. 

Purchasing Analysis 

Comment: One commenter stated that 

biobased products should be fully tested 

to determine if they meet performance 

specifications before requiring Federal 

agency purchase. According to the 

commenter, there are many products in 

the marketplace that do not work as 

advertised. Because there are numerous 

industry and other recognized standardsetting groups that are responsible for 

setting standards for products used in 

various applications, the commenter felt 

that it would be prudent for Federal 

agencies to purchase biobased products 

that have been determined by an outside 

organization to meet minimal 

performance standards. 

Two commenters stated that USDA 

needs to make available information on 

the availability, economic and technical 

feasibility, environmental and public 

health benefits, and life-cycle costs for 

each of the designated items and the 

name of each of the product’s 

manufacturer in order to enable Federal 

agencies to determine whether they are 

buying a product that will perform as 

intended at a reasonable cost and to 

prevent an incorrect assessment of a 

product’s attributes, which may led to 

unintended consequences. 

One of the commenters recognized 

that to provide complete information is 

a challenge given that a biobased 

product market is still in its infancy. 

However, the commenter believes that it 

is ill-advised to proceed with 

designating products for which 

‘‘information on the availability, relative 

price, performance, and environmental 

and public health benefits of individual 

products within each of these 10 items 

is not presented’’ (71 FR 47568). 

Response: In designating items for 

preferred procurement, USDA is 

responsible for designating those items 

which are or can be produced with 

biobased products and to provide, in 

part, information on their performance. 

Further, USDA is responsible for 

considering the technological feasibility 

of using products within such items. 

Finally, the statute allows a Federal 

agency not to purchase a product if, in 

part, it fails to meet the reasonable 

performance standards of the procuring 

agency. USDA believes that its process 

for designating items meets the intent 

and requirements of the authorizing 

statute and results in items that 

generally meet performance standards 

applicable to products within those 

items. 

USDA does not believe it is 

reasonable, nor statutorily required, to 

conduct full testing of every product 

within every item (or even the full 

testing of a single product within every 

item) in order to list an item for 

preferred procurement. To grant the 

commenter’s request that biobased 

products be fully tested would result in 

an essentially insurmountable obstacle 

to implementing the program. USDA 

has improved the process for making 

available information on products 

within items proposed and promulgated 

for designation. USDA is continually 

working to upgrade the amount and 

quality of such information, which can 

be found on the BioPreferred Web site. 

As stated in the final Federal Register 

notice for the first set of designated 

items, USDA reached an agreement with 

manufacturers not to publish their 

names in the Federal Register when 

designating items. This agreement was 

reached to encourage manufacturers to 

submit products for testing to support 

the designation of an item. Once an item 

has been designated, the manufacturers 

of products within the designated item 

may elect to post their names and other 

contact information on the BioPreferred 

Web site. 

USDA has linked the BioPreferred 

Web site to Defense Standardization 

Program and GSA-related standards lists 

used as guidance when procuring 

products, which can be accessed 

through the ‘‘Selling to the Federal 

Government’’ link on the BioPreferred 

Web site. To access the DoD list, go to 

the BioPreferred Web site and click on 

the ‘‘Selling to Federal Government’’ tab 

and look for the DoD Specifications 

link. To access the GSA-related 

standards list, click on the GSA 

Schedule Suppliers link under ‘‘Selling 

to the Federal Government.’’ Once at the 

GSA Web site, search for ‘‘Global 

Supply Standards’’ and then follow the 

appropriate links. Instructions on 

accessing these lists from the 

BioPreferred Web site will also be 

included in all future Federal Register 

notices for USDA’s designated item 

rules. Further, USDA also will invite 

and actively encourage manufacturers of 

qualifying products within a designated 

item to post, on USDA’s passwordprotected Web site, performance 

standards by which a qualifying 

product’s performance has been 

evaluated. 

Minimum Biobased Content 

Four 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. 

Approach Used 

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 


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4This item is now included in the Round 4 final 

rulemaking. 

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 through specific public 

comments, performance information, or 

additional biobased content data points 

for revising the proposed minimum 

biobased content level. For the adhesive 

and mastic removers item, 12 biobased 

content test results were available (44, 

61, 73, 79, 81, 83, 83, 84, 85, 89, 89, 95, 

and 99). There was a significant break 

in the data points between the product 

with 44 percent biobased content and 

the product with the next higher value 

of 61 percent. USDA could find no 

justification, based on the products’

performance information, to either 

subcategorize this item or to set the 

minimum biobased content at a level 

based on the 44 percent biobased 

content product. Information available 

for the remaining 11 products did not 

support the creation of subcategories or 

provide any rationale for setting the 

minimum biobased content at any 

specific point with the range. Also, the 

proposed minimum biobased content 

for this item was 58 percent and no 

public comments or additional data 

were received to support changing the 

proposed level. As a result, the 

proposed minimum biobased content of 

58 percent was retained for the final 

rule. 

For the fertilizers item, the proposed 

minimum biobased content was 71 

percent. There is a significant break in 

the tested biobased content levels, with 

three products at or below 26 percent 

and 10 products at or above 74 percent. 

USDA has retained the proposed 71 

percent minimum biobased content for 

the final rule because no justification 

was found to subcategorize the item, no 

public comments or additional data 

were received, and USDA knows of no 

unique performance claims that are 

offered by the three products with 

biobased contents below this level. 

USDA also notes that as additional 

biobased content data become available 

for designated items, the minimum 

biobased content will be re-evaluated 

periodically and revised as appropriate, 

based on all available data. 

One commenter is concerned, in part, 

about proposing a minimum biobased 

content at a level lower than the lowest 

tested biobased content. This does 

occur, but it occurs because of the test 

method used to determine a product’s 

biobased content. The test method has 

a ‘‘margin of error’’ associated with it. 

This margin of error is a plus or minus 

three percentage points. For example, if 

Product A has a tested biobased content 

of 75 percent, its actually biobased 

content could be from 72 to 78 percent. 

Thus, it is statistically appropriate to 

reduce the tested biobased content 3 

percentage points in order to ensure that 

the product on which the item’s 

minimum biobased content was based 

still be qualified if re-tested. 

Comment: Two commenters stated 

that, if the lower biobased content 

products cannot prove they offer better 

performance properties or meet certain 

application requirements, USDA should 

recommend higher biobased content 

products to stimulate product 

innovations that contain higher 

biobased levels. The commenters then 

stated that this holds particularly true 

for: Hand cleaners and sanitizers, 

composite panels, graffiti and grease 

removers, metalworking fluids, glass 

cleaners, food grade greases, and 

biodegradable cutlery. Given the lack of 

information on exceptional performance 

properties of the lower biobased content 

products in these categories, the 

commenters recommended establishing 

a minimum biobased content at 50 

percent for these products. 

Response: As discussed in the 

previous response, USDA has reevaluated the proposed minimum 

biobased contents for all of the proposed 

items and has revised the minimum 

biobased contents for several items. In 

its re-evaluation, USDA considered 

product performance information to 

justify the inclusion of products at 

lower levels of biobased content in 

addition to considering the range, 

groupings, and breaks in the biobased 

content test data array. 

With regard to the items specifically 

identified by the commenter, USDA has 

created subcategories for three of the 

items (hand cleaners and sanitizers, 

composite panels, and metalworking 

fluids 4), which has resulted in 

establishing higher biobased contents 

for some of the newly created 

subcategories. In addition, based on the 

re-evaluation of the data, the minimum 

biobased contents were also raised for 

graffiti and grease removers in this final 

rulemaking and for the disposable 

cutlery and glass cleaners items in the 

Round 3 final rulemaking. USDA does 

not believe, however, that setting the 

minimum biobased contents for items at 

a predetermined level (such as 50 

percent) is appropriate without 

consideration of performance and 

applicability, as well as other factors, on 

an item-by-item basis. Please see the 

Item Specific Comments section of the 

preamble for discussion on all of these 


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items and their minimum biobased 

content. 

Effect of Lower vs. Higher Biobased 

Contents 

Comment: Several commenters 

expressed concern about the effect of 

‘‘lower rather than higher’’ biobased 

contents. Two commenters believe that 

setting the biobased content too low for 

many of the 20 designated items in 

Rounds 2 and 3 will undermine 

motivation to produce products with 

higher levels of biobased content. 

Similarly, a third commenter stated that 

it believes higher biobased contents 

would encourage development by the 

private sector of higher biobased content 

products, which in turn would have a 

multiplier effect on biobased input use 

even larger than the government 

purchases themselves. 

Response: For the reasons stated in 

response to other comments in this FR 

notice, USDA believes the procedure it 

uses meets the goals of the statute and 

opens the door for more biobased 

products to be purchased by Federal 

agencies. In response to comments, 

USDA re-evaluated the proposed 

minimum biobased content for all items 

in this regulation. This re-evaluation 

resulted in a revised minimum biobased 

content for several items based upon 

product performance information and 

the range, groupings, and breaks of 

biobased content data. 

Designating biobased products for 

preferred procurement will increase the 

demand for such products and will 

encourage more manufacturers to 

develop biobased products. As items are 

designated for preferred procurement, it 

is then the Federal agencies’

responsibility to purchase those 

biobased products with the highest 

biobased contents that meet their 

performance specifications. Therefore, 

to sell more of their biobased products 

under the preferred procurement 

program, manufacturers will be 

motivated to develop products with 

higher biobased contents than their 

competitors. 

USDA agrees that setting higher 

minimum biobased content 

requirements would provide a higher 

target for manufacturers and may result 

in manufacturers developing higher 

biobased content products. However, 

USDA believes that to do so without 

regard to the current status of 

development of biobased products 

would delay the purchase of many 

biobased products. USDA believes its 

responsibility is to implement a 

preferred procurement program on the 

basis of products currently available in 

the marketplace and then to depend 

upon the statutory requirement for 

purchasing agencies to buy those 

qualifying products with the highest 

biobased contents available that meet 

their performance requirements at a 

reasonable cost. In setting the minimum 

biobased content, USDA also seeks to 

avoid situations where the minimum 

biobased content is set at such a high 

level that it can currently be met by only 

one manufacturer’s product(s), thus 

creating a ‘‘single provider’’ situation 

which would delay implementation of 

the program for these products. 

USDA believes the approach it is 

taking in setting minimum biobased 

contents is appropriate. In instances 

where performance requirements vary 

significantly for products within an item 

and where sufficient data are available, 

USDA has created subcategories with 

different minimum biobased content 

requirements within a single designated 

item. Discussions of these changes are 

included in the section of this preamble 

that presents comments and response 

related to specific designated items. 

Meeting the Goals of the Statute 

Comment: Two commenters stated 

that the goals of the preferred 

procurement program (increasing 

demand for biobased products; spurring 

rural economic development through 

value-added agricultural products; and 

enhancing the nation’s energy security 

by substituting biobased products for 

products derived from imported oil and 

natural gas) would be better met by 

substantially increasing the minimum 

biobased content level for many of the 

20 items proposed for designation in the 

two Federal Register notices. A third 

commenter referred to section 9002(e) of 

FSRIA as the basis for USDA setting 

minimum biobased contents at the 

highest level practicable. 

Response: USDA believes there are 

various ways to achieve the goals of the 

BioPreferred Program, including the 

commenters’ suggestion of 

‘‘substantially increasing the minimum 

biobased content level’’ for many of the 

items. Because many biobased products 

are in their infancy, however, USDA 

believes that the best way to make 

inroads in their purchase by Federal 

agencies and to increase market interest 

in the production of biobased products, 

including those manufacturers who may 

otherwise not be interested, is to set 

minimum biobased contents that reflect 

the array of biobased content data and 

product performance characteristics to 

meet the needs of the Federal 

procurement community. For this final 

rule, USDA re-evaluated each of the 

item’s minimum biobased contents 

considering the biobased content data 

and performance characteristics and 

subcategorized and revised several 

items’ minimum biobased contents, as 

appropriate. The minimum biobased 

contents established by this rule allow 

the purchasing agencies to select 

biobased products with higher biobased 

contents in conformance with paragraph 

(c) of section 9002, which states that 

procuring agencies shall ‘‘give 

preference to such items composed of 

the highest percentage of biobased 

products practicable * * *.’’ that meet 

the performance, price, and availability 

requirements of the statute. USDA will 

continue to provide information on the 

full range of biobased contents found 

among products within designated 

items, which will assist procuring 

agencies in purchasing those products 

that have the highest biobased content. 

Information 

Comment: Two commenters suggested 

that USDA make available more 

information on the biobased content for 

each product tested, rather than 

providing a range of biobased contents. 

The commenters stated, as an example, 

if the biobased content of ten of the 30 

biobased fertilizers ranged from 74 to 

100 percent and if nine of these tested 

at 100 percent, USDA should consider 

setting the minimum content close to 

100 percent rather then near the lowest 

biobased content tested product. 

Response: USDA posts on the 

BioPreferred Web site all of the biobased 

content data received. This information 

can be accessed by going to the 

BioPreferred Web site (http:// 

www.biopreferred.gov) and then clicking 

on the ‘‘Proposed and Final 

Regulations’’ link and then the 

supporting documentation link for the 

applicable round of designations. 

USDA’s goal is to provide enough 

specific information on biobased 

contents in preambles so that reviewers 

will have sufficient data to adequately 

comment on a proposed minimum 

biobased content. If readers feel that 

they need more detailed information, 

they can access all of the data as 

indicated above. 

Subcategorization 

Comment: One commenter stated that 

USDA should consider the precedence 

in EPA’s recycled content products 

program for setting several content 

levels based on different applications 

and apply that principle to some of the 

items being proposed for designation for 

which USDA’s data indicate that 

multiple minimum biobased contents 

are appropriate. 

Response: USDA agrees with the 

commenter that each designated item 


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5This item is now included in the Round 4 final 

rulemaking. 

should be examined to determine 

whether or not it is reasonable to create 

subcategories within an item. As 

discussed in the Background section of 

this preamble, USDA intends to create 

subcategories in those items where there 

are groups of products within the item 

that meet different markets, uses, and/ 

or performance specifications. For some 

items, however, USDA may not have 

sufficient information at the time of 

proposal to create subcategories within 

an item. 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. 

Where USDA has sufficient 

information on products within an item 

to justify creating subcategories, USDA 

will do so. With regard to the 20 items 

proposed for designation under Rounds 

2 and 3, USDA has re-evaluated 

individual items when requested by the 

commenters and has created 

subcategories for six items (hand 

cleaners and sanitizers; composite 

panels; fluid-filled transformers; 

metalworking fluids; 5 greases; and 

carpet and upholstery cleaners). 

Overlap With EPA’s Comprehensive 

Procurement Guideline (CPG) 

Comment: One commenter, in 

considering the potential for overlap 

between biobased products and recycled 

content products, noted the decisionmaking process and the information to 

be provided to assist in making the 

purchase decision and concluded that 

there may be less overlap between CPG 

items and designated biobased items 

than there appears to be at first glance. 

Response: USDA agrees with the 

commenter that there may be the 

appearance of an overlap in many cases 

where, after all of the required 

performance characteristics of the 

products are evaluated, an actual 

overlap does not exist. Federal agencies 

should evaluate the performance needs 

of the products when deciding whether 

there is an actual overlap between the 

preferred procurement programs. 

For the items within this rulemaking, 

USDA has identified products within 

insulating foam, composite panels, 

disposable containers, sorbents, and 

fertilizer as potentially overlapping with 

EPA-designated recovered content 

products. Where their products compete 

directly with EPA-designated recovered 

content products, the Federal agency 

must purchase the recovered content 

product. 

In some cases, however, there may be 

factors that would give purchase 

preference to the biobased product. For 

example, a disposable container may be 

required to be biodegradable. If the EPAdesignated recovered content product is 

not biodegradable, preference would be 

given to the biobased container, subject 

to cost, availability, and performance. 

Similarly, a biobased sorbent may be 

given preference over an EPAdesignated recycled content sorbent if 

the biobased content product addresses 

a Federal agency’s certain 

environmental or health performance 

requirements that the EPA-designated 

recovered content product would not 

meet. 

Finally, there may be instances where 

products within these items may be able 

to meet both sets of procurement 

preferences. For example, almost all of 

the biobased sorbents are produced from 

waste streams of paper, corn processing, 

or fabric processing, which could be 

considered recycled. Composite panels 

made with embedded fibers may be 

made with recycled plastic materials. 

For these and other such products, there 

may be no conflict between these two 

programs as the product may satisfy 

both. 

BEES Analytical Tool 

Comment: One commenter stated that 

the BEES scores may be difficult for 

many users to grasp and suggested that 

USDA consider additional or alternative 

approaches (e.g., graphical 

representation) for presenting the 

information. The commenter also 

suggested that users may find the actual 

impact values easier to understand than 

the scaled values used for scoring (e.g., 

grams of CO2 equivalents per functional 

unit of product (global warming), grams 

of N equivalents per functional unit 

(eutrophication), etc.). The commenter 

believes that some users may also find 

the actual impact values useful in 

compiling environmental impact data 

for reporting under OMB scorecards, 

GPRA results, EMS reports, etc. The 

commenter provided an example table 

of how such information could be 

presented. 

Response: USDA agrees with the 

commenter that the BEES impact values 

are useful. The BEES impact values for 

the designated items in this final rule 

can be found in Appendix A of the 

document ‘‘Technical Support for Final 

Rule—Round 2 Designated Items,’’

which is available on the BioPreferred 

Web site. USDA will provide the BEES 

impact values in all future proposed 

rulemakings for designated items. 

With regard to alternative 

presentations of the data, USDA has 

discussed with the commenter various 

methods of supplementing the tabular 

display with a graphical representation 

of BEES environmental performance 

score results. USDA will add a graphical 

presentation of these BEES results in 

subsequent proposed rulemakings. A 

graphical presentation of the BEES 

environmental performance scores for 

the designated items in this final rule 

can be found in Appendix B of the 

document ‘‘Technical Support for Final 

Rule—Round 2 Designated Items,’’

which is available on the BioPreferred 

Web site. 

Compostability 

Comment: One commenter requested 

that USDA emphasize the 

compostability of products within item 

designations for biodegradable films, 

containers, and cutlery in order to better 

qualify with the Federal Trade 

Commission’s (FTC) Guides on 

Environmental Labeling. The 

commenter believes that consumers may 

mistakenly think that biodegradable 

products should be landfilled rather 

than recovered and recycled via 

composting. The commenter stated that 

by labeling these items as compostable, 

USDA is providing direction on the 

proper disposal and recovery for 

disposable biobased products. 

Response: Although USDA is not 

requiring films or cutlery to be 

biodegradable in order to receive 

preferred procurement, USDA agrees 

with the commenter that biodegradable 

products within these (and other) items 

need to be composted rather than 

landfilled in order for the products to 

biodegrade. USDA points out that these 

products 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. 

Finally, all container products 

identified have been indicated by their 

manufacturers as meeting 

compostability requirements. 

Terminology 

Comment: One commenter 

recommended that USDA clarify the use 

of the terms ‘‘biobased,’’

‘‘biodegradable,’’ and ‘‘compostability’’

within the biobased preferred 

procurement program. According to the 

commenter, these terms are at times 

used interchangeably, creating a 


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confusing picture of what the program 

is intended to cover. The commenter 

also inquired as to why some of the 

items proposed for preferred 

procurement were designated as 

‘‘biodegradable’’ and others were not. 

Response: USDA agrees that there can 

be confusion with regard to the three 

terms mentioned by the commenter. A 

‘‘biobased’’ product is a product that is 

composed, in whole or in significant 

part, of biological products or renewable 

domestic agricultural materials or 

forestry materials. A biobased product 

may or may not be biodegradable and/ 

or compostable. As noted earlier in the 

preamble, ‘‘biodegradability,’’ in simple 

terms, measures the ability of 

microorganisms present in the disposal 

environment to completely consume the 

biobased carbon product within a 

reasonable time frame and in the 

specified environment, with composting 

being one such environment under 

which biodegradability occurs. 

‘‘Compostable’’ generally means a 

product is capable of biological 

decomposition under controlled aerobic 

conditions, such as found in a compost 

pile or compost bin, by microorganisms 

or soil invertebrates. As noted in a 

previous response to a comment on 

compostability, however, some 

designated products may not fully 

degrade (i.e., biodegrade) in a 

‘‘backyard’’ compost pile. 

Of the twenty items proposed for 

designation for preferred procurement 

under Rounds 2 and 3, three items—

films, containers, and cutlery—were 

designated as ‘‘biodegradable.’’ In the 

final rule, USDA has revised these item 

descriptions to eliminate the term 

‘‘biodegradable’’ from the item being 

designated and has instead made 

biodegradability, where appropriate, a 

requirement for a biobased product to 

receive preferred procurement. To 

illustrate, USDA proposed 

‘‘biodegradable containers’’ as an item 

for preferred procurement. This would 

have meant that only biodegradable 

containers currently being purchased 

would be considered for replacement by 

biobased biodegradable containers 

under the preferred procurement 

program. This is not what USDA 

intended. The item that should have 

been proposed was ‘‘disposable 

containers’’ so that all disposable 

containers would be considered for 

replacement under the preferred 

procurement program with biobased 

biodegradable containers. 

This same situation also existed for 

the other two items—biodegradable 

films and biodegradable cutlery. For 

those two items, the item designation 

should have been for nondurable films 

and disposal cutlery, respectively. 

USDA has modified the item 

designations as indicated and has 

included a biodegradable criterion only 

for the biobased versions of containers. 

As explained in a separate Federal 

Register notice for Round 3 designated 

items, USDA is not making 

biodegradability a requirement for films 

or for cutlery. 

USDA notes that not all biobased 

containers are biodegradable or are not 

known whether or not they are 

biodegradable because they have not yet 

been tested for biodegradability. All of 

the container products listed on the 

BioPreferred Web site, however, have 

been verified by their manufacturer as 

being biodegradable. Further, USDA 

will only post on the BioPreferred Web 

site information on biobased container 

products that are biodegradable. 

Biodegradability Requirements 

Comment: One commenter stated that 

the biodegradability requirements for 

the three items (cutlery, films, and 

containers) should be identical, and 

should (1) meet ASTM D6400 

‘‘Specification for Compostable 

Plastics’’, (2) meet European Norm 

13432, or (3) be approved by the BPI. 

The commenter provided suggested 

wording. 

Response: Notwithstanding the fact 

that USDA is not requiring films to be 

biodegradable (as explained in a 

separate Federal Register notice for 

Round 3 designated items), USDA 

agrees with the commenter that the 

requirements for all three items should 

have been the same, including referring 

to ASTM D6400 for cutlery rather than 

ASTM D5338. Because ASTM D6400 

may not be applicable to all biobased 

products to demonstrate 

biodegradability, manufacturers may 

claim biodegradability using other 

acceptable methods. In addition, if a 

product is disposed of in a marine 

environment, the applicable ASTM 

method is ASTM D7081. 

General Comments 

Comment: One commenter requested 

that USDA clarify the relationship 

between biobased products and recycled 

content products to assist in the 

purchase decision. The commenter 

made the following three 

recommendations: 

1. On page 47567 of the FR notice, 

bottom of left column, the commenter 

recommended inserting the following 

sentences before the sentence beginning 

with ‘‘Where a biobased item * * *,’’: 

‘‘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.’’

2. On page 47567 of the FR notice, the 

bottom of left column reads: ‘‘Where a 

biobased item is used for the same 

purposes and to meet the same 

requirements as an EPA-designated 

recovered content product, the Federal 

agency must purchase the recovered 

content product.’’ The commenter 

requested that USDA clarify the type of 

requirements and whose they are. For 

example, the commenter suggested that 

the words ‘‘Federal agency 

performance’’ (or something similar) 

could be inserted before 

‘‘requirements.’’

3. On page 47567 of the FR notice, at 

the top of middle column, the 

commenter recommended inserting ‘‘a 

Federal agency’s’’ before ‘‘certain’’ and 

inserting ‘‘performance’’ before 

‘‘requirements’’ to ensure that the reader 

understands which and whose 

requirements USDA is referring to. 

Response: USDA agrees that the 

recommended revisions add clarity to 

the discussion of the relationship 

between the two preferred procurement 

programs. These suggestions have been 

incorporated into the preamble of this 

final rule and will be incorporated into 

future rulemaking packages. 

Comment: One commenter suggested 

that the first sentence in the preamble 

under ‘‘Overlap with EPA 

Comprehensive Procurement Guideline 

program for recovered content 

products’’ be changed to read ‘‘Some of 

the products that are bio-based items 

designated for preferred procurement 

may also be items EPA has designated 

under the Environmental * * *.’’

Response: USDA agrees that this 

editorial change provides additional 

clarity to the sentence. This suggested 

change has been incorporated into the 

preamble of this final rule and will be 

incorporated into future rulemaking 

packages. 

Comment: One commenter 

recommended that USDA consider an 

item designation for ‘‘engineered wood 

products,’’ pointing out that there are 

many other biobased products in 

addition to composite panels. 


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Response: USDA appreciates the 

comment, and understands that 

composite panels are but one of a larger 

category of engineered wood products. 

USDA is already considering specific 

engineered wood products for future 

designation for preferred products. 

Comment: One commenter 

recommended that USDA re-evaluate 

the BEES weighting standards because it 

is concerned that applying weighting 

factors to the proposed designated 

products consistently can lead to 

counter-intuitive conclusions and 

believes that, in some situations, a 

differentiation of weighting factors 

needs to be considered. The commenter 

was also concerned about how the BEES 

weighting factors were selected, as they 

seem to be the same for all products. 

Finally, the commenter is concerned 

about the utility of the BEES analysis 

results, which seem to be unaffected by 

such a broad range of unit prices (e.g., 

$17.64 and $132 for fertilizers; $89.06 

and $983 for glass cleaners). The 

commenter then recommended that 

more information about the supporting 

analysis be disclosed before items are 

designated for procurement. 

Response: The BEES analytical tool, 

including its factors and their 

weightings, was developed by a 

scientific board and, as such, it is 

beyond USDA’s ability to modify the 

tool. It is true that the BEES weighting 

factors are the same for all products. 

USDA does not agree, however, that 

differentiation of weighting factors is 

desirable. Weighting factors indicate the 

relative ‘‘importance’’ of the BEES 

impact categories (e.g., global warming) 

to the Nation, which should not be 

confused with the relative 

‘‘performance’’ of specific products with 

respect to those impact categories. 

Product performance is captured by the 

life-cycle data underlying each 

product’s BEES results, and will vary 

with differences in raw material 

feedstocks and cultivation practices and 

in life-cycle energy and water use. A 

single product’s poor performance with 

respect to global warming, which will 

worsen its BEES global warming score, 

does not necessarily imply that global 

warming should be more important to 

the Nation as a result. 

The broad range of unit prices for 

some items, pointed out by the 

commenter, simply indicates that 

biobased alternatives for some can be 

produced using different biobased 

feedstocks and manufacturing 

processes, leading to different unit 

prices. The fact that the two examples 

noted by the commenter show a wide 

range in unit prices is, in the opinion of 

the USDA, exactly the type of useful 

information the BEES provides. It would 

be extremely difficult to disclose more 

information about the sample products 

without revealing specific 

manufacturers’ names and proprietary 

information. USDA points out that the 

BEES analytical tool provides 

information and that it is up to the 

purchasing agency to decide how to use 

that information. For more information 

on the BEES analytical tool, users 

should access the BEES Web site at 

http://www.bfrl.nist.gov/oae/software/ 

bees.html. 

Labeling Program 

Comment: One commenter 

recommended that USDA either reserve 

the label for higher-content products or 

require manufacturers to specify the 

biobased content of the product on the 

label. According to the commenter, this 

will encourage the purchase of products 

with higher biobased contents, which 

would be consistent with Congress’

intent. The commenter was especially 

concerned about composite panels. 

Response: USDA thanks the 

commenter for its comment. USDA has 

considered this comment in developing 

the proposed rule for the voluntary 

labeling program. 

Item Specific Comments 

Adhesive and Mastic Removers 

Comment: One commenter 

recommended that adhesive removers 

be grouped with graffiti and grease 

removers based on formulation and 

functionality. The commenter stated 

that products designed to remove 

asbestos, carpet and tile mastics can be 

formulated differently from products 

designed to remove glue, tape, gums and 

other adhesive materials. Further, 

products designed to remove adhesive 

can also be formulated to remove 

greases and tars, graffiti paints, magic 

permanent marker ink, and crayon. To 

reflect various formulations in the 

marketplace, the commenter suggested 

that the designated item could be 

graffiti, adhesive and grease removers 

with the following revised definition: 

Industrial solvent products formulated 

to remove automotive, industrial, or 

kitchen soils and oils, including grease, 

paint, and other coatings, from hard 

surfaces or to remove adhesive 

materials, including glue, tape, and 

gum, from various surface types. 

Response: USDA appreciates the 

commenter’s suggestion. After 

reviewing the product information upon 

which this item was based, USDA 

believes that the products are 

formulated to remove a range of both 

adhesives and mastics. It is true that 

these, or similar, products may also 

perform the function of a grease or 

graffiti remover. USDA has already 

established a ‘‘graffiti and grease 

removers’’ item, and the manufacturers 

of products that are capable of 

performing multiple functions may 

market their products under either, or 

both, designated items as long as the 

products meet the required minimum 

biobased contents for the items. Because 

the products USDA evaluated as 

adhesive and mastic removers are 

marketed as such, USDA believes it is 

appropriate to maintain the item name 

as proposed. The definition was not 

changed as the result of this comment, 

but it has been slightly modified in two 

ways. First, the definition was changed 

to read ‘‘solvent products’’ rather than 

‘‘industrial cleaning solvent products’’

in order to reflect the broader nature of 

products than can be included in this 

item. Second, and as discussed in the 

response to the following comment, the 

word ‘‘ceramic’’ was removed from the 

definition. 

Comment: One commenter 

recommended that this designated item 

be revised to focus just on mastic 

removers (see previous comment) and 

recommended the following definition 

for mastic removers: Industrial cleaning 

solvent products formulated for use in 

removing asbestos, carpet, and tile 

mastics. The commenter also 

recommended that the qualifier 

‘‘ceramic’’ tile be dropped in the 

definition of mastic remover because 

mastics are used to lay down tiles made 

of a variety of materials. 

Response: As noted in the previous 

response, USDA is retaining this item 

designation to include both adhesive 

and mastic removers. However, USDA 

agrees with the commenter that the 

word ‘‘ceramic’’ should be dropped 

from the definition as it is unnecessarily 

limiting. Therefore, USDA has removed 

the word ‘‘ceramic’’ from the definition. 

Plastic Insulating Foam for Residential 

and Commercial Construction (Formerly 

Insulating Foam for Wall Construction) 

Comment: One commenter proposed 

the following definition for this item: 

Foam insulating products designed to 

provide a sealed thermal barrier for 

residential or commercial building 

construction applications, including 

walls, ceilings, attics and crawl spaces. 

The commenter recommended this 

definition because biobased spray foam 

can and is used in more than just walls, 

including floors and ceilings. 

Response: USDA agrees that the 

various applications referenced by the 

commenter should be included in the 

item designation. The definition of this 


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item was intended to be broad so that 

products such as those identified by the 

commenter would be included. The 

definition of the item was also intended 

to reflect the products that were 

evaluated for the item. Upon review of 

the products that were evaluated, USDA 

has determined that the item definition 

needs to be revised to specifically apply 

to plastic insulating spray foam 

products. This revision aligns the 

definition more appropriately to the 

products that were evaluated. At 

proposal, one rigid panel product with 

65 percent biobased content was 

considered to be a product in this item. 

However, because information was 

available for only a single rigid panel 

product, USDA has decided to limit the 

current designation to spray foam 

products and to attempt to gather 

sufficient data to designate rigid foam 

insulating panels as a subcategory of 

this item at a later date. Therefore, the 

one rigid foam product was removed 

from the data set for this item. 

In addition, USDA has determined 

that the name of this designated item 

needed to be revised. First, the proposed 

item’s name gives the impression of a 

much more narrow range of products 

(i.e., wall construction) than 

appropriate. Second, the item’s name 

should help the user understand that 

products within this item are plastic 

insulating foam products. Therefore, 

USDA has changed the name of this 

designated item in the final rule from 

‘‘Insulating Foam for Wall 

Construction’’ to ‘‘Plastic Insulating 

Foam for Residential and Commercial 

Construction.’’

Comment: One commenter 

recommended that the minimum 

biobased content be raised from 8 

percent to 10 percent. According to the 

commenter, their first efforts at creating 

a biobased foam came in above 10 

percent and the commenter feels anyone 

who is truly interested in manufacturing 

biobased foam insulations should be 

able to reach the 10 percent mark. 

Response: The biobased content of the 

product that set the proposed minimum 

biobased content for this item was 11 

percent, higher than that reported by the 

commenter. Because of the margin of 

error in the test method, which is plus/ 

minus three percentage points, USDA 

proposed a minimum biobased content 

of 8 percent (11 percent minus 3 

percentage points). However, since 

proposal USDA has received two 

additional biobased content test results 

for this item. These two tested samples 

contained 10 percent and 13 percent 

biobased material. As discussed in the 

previous response, USDA has also 

dropped from consideration the one 

rigid foam product whose biobased 

content was 65 percent. The biobased 

contents of the 5 tested products within 

this item are now 10, 11, 11, 13, and 29 

percent. Because 4 of the 5 data points 

are within a 3 percentage point range, 

USDA considers these products to be 

representative of the biobased products 

for which we have biobased content 

information. While the remaining 

product offers a significant increase in 

biobased content from the other 

products (29 percent versus about 10 

percent), USDA decided not to set the 

minimum biobased content based on 

this single product. Therefore, the 

product with the 10 percent biobased 

content was determined to be the 

product upon which the minimum 

biobased content based. Subtracting the 

three percentage points to allow for 

testing variability results in a minimum 

biobased content of 7 percent for this 

item. USDA will continue to gather data 

on this item and, if sufficient data are 

obtained to justify subcategorization or 

a revision in the minimum biobased 

content, such change will be made in a 

future rulemaking. 

Comment: One commenter believes 

that there is no overlap or conflict 

between biobased spray foam insulation 

and EPA’s CPG guidance for foam-inplace insulation. The commenter stated 

that they had searched EPA’s on-line 

CPG supplier database and did not find 

any listings for foam-in-place insulation 

with a recycled content. The commenter 

then conducted a broader general Webbased search, which also did not reveal 

any companies that indicated they are 

making spray foam insulation that 

contains a recycled or recovered 

material. Therefore, the commenter 

concluded that if there are no 

commercially available spray foam 

products that meet the CPG definition, 

then in reality there will be no overlap 

or conflict with biobased spray foam 

insulation. 

Response: USDA has conducted 

additional research into whether there 

were any plastic spray-in-place 

insulating foams that were being 

manufactured with recycled materials. 

USDA contacted 13 insulation 

manufacturers and trade associations 

regarding spray-in-place insulation 

foams. None of the contacts identified a 

plastic spray-in-place insulating foam 

product with recycled content. USDA 

did identify spray-in-place products 

with recycled cellulose content. To the 

extent that such recycled content 

products and biobased spray-in-place 

products can perform the same job, 

there may be an overlap. Overall, 

however, if a purchasing agent requires 

a plastic spray-in-place insulating foam, 

there should be no overlap between 

biobased spray-in-placed products and 

CPG products. 

While there is unlikely to be an 

overlap with regard to spray-in-place 

products, there is still a potential 

overlap between products within this 

designated item and products within the 

CPG’s building insulation products 

group because products within this 

designated item include preformed 

products such as foam board. 

Polyisocyanurate (polyiso) materials, 

which are used to make insulating foam 

boards, almost always contain recycled 

content (see Appendix D in the 

document Technical Support for Final 

Rule—Round 2 Designated Items, which 

can be obtained from the BioPreferred 

Web site). Thus, while there may be no 

overlap with plastic spray-in-place 

insulating foam products, there is the 

potential for overlap between biobased 

foam board products and similar CPG 

products. 

In conclusion, USDA points out that 

potential overlap can occur between 

biobased products and CPG products 

when they are used for the same 

purpose and when both can meet the 

required performance specifications. 

The key consideration in determining if 

there is an overlap between a biobased 

product and a CPG product is whether 

a purchaser can select either product for 

a specific job. USDA does not expect 

this to occur, on the basis of currently 

available products, for spray-in-place 

insulation products, but it could occur 

for preformed insulation products, such 

as foam board, which may be designated 

at a later date. 

Comment: One commenter asked why 

it was necessary to conduct both E84–

05 and E84–05e1 for insulating foam. 

According to the commenter, they have 

never seen anyone test 05e1 and were 

wondering if it can not be required or 

what the reasoning behind the extra 

requirement is. 

Response: It is not necessary to test an 

insulating foam using test methods E84–

05 and E84–05e1. The lists presented in 

the preamble for each of the designated 

items are compilations of test methods 

and performance standards that 

manufacturers have reported and are not 

lists of standards against which 

products within an item must be tested. 

The rule does not require an insulating 

foam to be tested against one or more 

particular standards, let alone against 

both standards identified by the 

commenter. It is up to the manufacturer 

of the product to determine the 

appropriate standard(s) against which to 

test their products. If a standard must be 

used to qualify a product for preferred 


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procurement, it will be identified in the 

rule and not in the preamble. 

To avoid confusion and to better 

present standards in future proposals, 

USDA is refining the presentation of the 

ASTM standards to present only the 

standard number (in this case, E84) and 

not the year in which it was adopted (in 

this case, –05 and 05–e1). 

Comment: One commenter questioned 

the use of a square foot as the unit of 

measure for the BEES analysis. 

According to the commenter, foam 

insulation is measured in board feet, 

which is 1-foot by 1-foot at a 1-inch 

depth. The commenter pointed out that 

this is important because $1.10 a square 

foot is hard to measure without knowing 

the depth of this insulation. For 

example, the commenter’s foam 

installed runs about 40 cents a board 

foot, so at 3 inches deep your costs are 

$1.20 for every square inch at 3 inch 

depth. 

Response: USDA agrees with the 

commenter that the functional unit for 

this item, as presented in the proposal, 

was incorrect. The functional unit for 

this item should have been reported as 

‘‘one-square foot that is 3.5 inches 

deep.’’ USDA has updated this 

information on the BioPreferred Web 

site. 

Hand Cleaners and Sanitizers 

Comment: One commenter 

recommended adding skin surface 

removal standards to the rulemaking for 

hand cleaners and sanitizers, noting that 

the three performance standards (ATCC 

11229, ATCC 6358, and ATCC 6539) 

identified measuring the sanitizing 

action of disinfectants and do not 

address removal, which is what hand 

cleaners are designed to do. 

Response: USDA has searched the list 

of performance standards posted by the 

National Science Foundation, the EPA, 

the Food and Drug Administration, and 

the National Institute of Health to 

investigate whether any of these 

organizations have performance 

standards for hand cleaners. The search 

of these organizations’ sites did not 

identify any performance standards for 

hand cleaners. 

USDA also contacted the commenter 

to determine if the commenter has any 

information on specifications for hand 

cleaners. The commenter provided 

USDA information on food safety, 

which included hand washing 

requirements. The commenter also 

provided a link to hand hygiene in 

health care settings. This information is 

available on the BioPreferred Web site. 

USDA would appreciate any 

additional information on hand cleaning 

performance standards that the 

commenter, or others, could provide. 

Any information received by USDA will 

be made available on the BioPreferred 

Web site. 

Comment: One commenter stated that 

some of the hand cleaner products in 

the technical information did not seem 

accurate to the proposed definition, 

pointing to one product described as a 

‘‘whole body shampoo’’ for skin and 

hair. The commenter recommended that 

the category be restricted to hand 

cleaners and sanitizers and that the 

definition be refined based on their 

input. 

Response: USDA agrees that products 

within the technical documents and 

those used to define an item need to be 

consistent with the definition of the 

designated item. USDA evaluated the 

product described by the commenter 

and decided, because the product could 

be used as a hand cleaner, to leave the 

information about this product on the 

BioPreferred Web site with the other 

hand cleaners and sanitizers products. 

USDA’s decision is based on the idea 

that as long as a product is marketed 

within a designated item, it should not 

matter if the product is also capable of 

performing in another designated item. 

The fact that this cleaning product can 

also be used as a shampoo should not 

eliminate it from being considered as a 

hand cleaner if it can perform that 

function and if it meets the minimum 

biobased content required of a hand 

cleaner. USDA notes that this particular 

product was not used in either 

developing the minimum biobased 

content or for the BEES analysis. 

Comment: Two commenters 

recommended creating subcategories for 

hand cleaners. Both commenters 

suggested at minimum recognizing hand 

cleaners that are designed to remove 

soil, grease, etc., and those that are 

designed to kill microorganisms 

(antimicrobial). One of the commenters 

suggested following FDA formulation 

specifications to help develop 

subcategories. The other commenter 

suggested addressing hand cleaners and 

sanitizers in the same manner as was 

done for greases by providing a general 

category definition and then listing and 

defining subcategories as follows: 

Hand Cleaners and Sanitizers—

Personal care products formulated for 

use in removing a variety of different 

soils, greases, and similar substances, or 

bacteria from human hands with or 

without the use of water. 

Hand Cleaners—Personal care 

products formulated for use in removing 

a variety of different soils, greases, and 

similar substances from human hands 

with or without the use of water. 

Hand Sanitizers—Personal care 

products formulated for use in removing 

bacteria from human hands with or 

without the use of water. 

Hand Cleaners and Sanitizers—

Personal care products formulated for 

use in removing a variety of different 

soils, greases and bacteria from human 

hands with or without the use of water. 

This commenter also suggested that, if 

USDA wants to retain a single item 

designation for hand cleaners and 

sanitizers, the definition be modified to 

read: Hand Cleaners and Sanitizers—

Personal care products formulated for 

use in removing a variety of different 

soils, greases, and similar substances, 

and/or bacteria from human hands with 

or without the use of water. 

Response: USDA agrees with the 

commenters that hand cleaners and 

sanitizers should be subcategorized 

because these two types of products 

meet very different performance 

specifications; that is, the sanitizing 

aspect requires those products to meet 

a performance level not required of 

hand cleaners. In the final rule, USDA 

is subcategorizing this designated item 

into two subcategories—(1) hand 

cleaners and (2) hand sanitizers, which 

includes cleaners that are formulated to 

be both a hand cleaner and sanitizer. 

USDA does not believe that a third 

separate subcategory for cleaners 

formulated to be both a hand cleaner 

and sanitizer is needed. A product that 

meets the minimum biobased content 

level and the sanitizing requirements to 

qualify as a hand sanitizer will also 

meet the minimum biobased content for 

a hand cleaner, which is lower than for 

a hand sanitizer. 

USDA separated the products within 

this item into each of the two 

subcategories and then identified the 

biobased contents for the products 

within each subcategory. For hand 

cleaners, the biobased contents of the 21 

tested hand cleaners are 21, 23, 33, 42, 

42, 44, 45, 67, 70, 78, 80, 82, 83, 84, 84, 

85, 86, 92, 95, 96, and 100 percent. 

Because there is a significant break 

between the 45 percent product and the 

67 percent product, USDA reviewed the 

available product information to 

determine if there was any justification 

for creating two subcategories within 

this item. USDA’s review of the 

information available for the products 

within these two groups did not identify 

any performance claims or other 

features that would justify further 

subcategorization. Because there are a 

significant number of products within 

the group with biobased contents above 

67 percent, and because USDA could 

not identify any unique performance 

features within products in the other 


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group, the minimum biobased content 

has been set based on the product with 

67 percent biobased content. Reducing 

the 67 percent by 3 percentage points to 

account for testing variability results in 

a minimum biobased content of 64 for 

this subcategory. In addition, the 

biobased contents of available products 

will be posted on the BioPreferred Web 

site, which will allow purchasing 

agencies the opportunity to review the 

biobased contents of available products 

and select those with higher biobased 

contents. 

For hand sanitizers (and hand 

cleaners and sanitizers), the biobased 

contents of the 14 tested hand sanitizers 

are 3, 24, 76, 76, 80, 80, 88, 89, 90, 91, 

94, 95, 95, and 96 percent. Within this 

data set, there is a significant break 

between the 24 percent product and the 

76 percent products. USDA investigated 

the products below this break in the 

data but could not identify any 

performance claims or other unique 

features that justified creating a 

subcategory or setting the minimum 

biobased content on either of the two 

products below the 76 percent level. 

USDA is, therefore, setting the 

minimum biobased content for the hand 

sanitizer subcategory at 73 percent, 

based on the product with a tested 

biobased content of 76 percent. 

Additional details on the 

subcategorization and establishment of 

their minimum biobased contents for 

products within this item can be found 

in Chapter 2 of the document 

‘‘Technical Support for Final Rule—

Round 2 Designated Items,’’ which is 

available on the BioPreferred Web site. 

Finally, USDA has generally adopted 

the commenter’s suggested definitions, 

with the exception of hand sanitizers, 

where USDA has combined the 

commenter’s suggested definition for 

hand sanitizers with the suggested 

definition of hand cleaners and 

sanitizers. 

Comment: One commenter 

recommended that the minimum 

biobased content for hand cleaners be 

set closer to 67 percent, based on the 

data in the background information, 

rather than at the proposed 18 percent. 

The commenter stated that, if the 

differences in content levels reflect 

differences in use or consistency (e.g., 

gel vs. liquid), then USDA should 

provide separate content levels for the 

various uses or consistencies. 

Response: As noted in the previous 

response, USDA is breaking this item 

into two subcategories—hand cleaners 

and hand sanitizers. Based on the data 

available for both subcategories, USDA 

is setting the minimum biobased 

content for hand cleaners at 64 percent 

and for hand sanitizers at 73 percent. 

Comment: One commenter 

recommended that, in the absence of 

extensive testing to determine the 

efficacy of hand cleaner and sanitizer 

products in their use in the health care 

industry, USDA exempt the health care 

industry from the preferred 

procurement requirement for hand 

cleaners and sanitizers. The commenter 

stated that doing so will ensure that 

health care professionals will be able to 

obtain products that meet patient safety 

needs. The commenter pointed out that 

EPA is responsible for determining 

whether or not a product can be 

considered a disinfectant and asked 

whether this had been considered in the 

development of requirements to procure 

biobased hand cleaners and sanitizers. 

Response: The commenter is seeking 

a categorical exemption from the 

preferred procurement program for 

these products when used in healthcare 

facilities because there is an absence of 

testing to demonstrate the efficacy of 

these products in a healthcare setting. 

USDA does not believe that a categorical 

exemption for these products is 

warranted for the reasons discussed in 

the following paragraphs. 

USDA has met with various Federal 

agencies during the development of the 

designation rules and, as discussed 

earlier in this preamble, has worked 

with DoD and NASA to develop an 

exemption for all items when used in 

products or systems designed or 

procured for combat or combat-related 

missions and for spacecraft systems and 

launch support equipment. However, an 

exemption for the hand cleaners and 

sanitizers designated item has not been 

requested by other Federal agencies that 

use these products in healthcare settings 

(such as the VA hospitals). While USDA 

values and considers the opinion of 

individual commenters in the 

rulemaking process, the concerns raised 

by this commenter do not provide 

sufficient support, in USDA’s opinion, 

to justify an exemption for this item 

when other significant users of products 

within the item have not requested an 

exemption. 

The statutory requirements of FSRIA 

require USDA to designate items for 

preferred procurement and to make 

available to the procurement agencies 

information on the designated items, 

including information on the 

performance characteristics of products 

offered within a designated item. It is 

still the responsibility of the 

procurement agent to determine 

whether a biobased product, or any 

other product, meets the performance 

requirements of the procuring agency 

for which the product is being bought 

and its intended use. 

The statute requires procuring 

agencies to give preference to biobased 

products in designated items, but does 

not require the agency to purchase 

biobased products if one of three 

conditions exist, one of which addresses 

the performance, or lack thereof, of the 

biobased product. Specifically, the 

statute allows a procuring agency not to 

buy a biobased product within a 

designated item if the biobased product 

fails to meet the performance standards 

set forth in the applicable specifications 

or fails to meet the reasonable 

performance standards of the procuring 

agencies (see section 9002(c)(2)(B)). 

Because the statute already provides the 

relief sought by the commenters, there 

is no need to include such exemptions 

in the rule. 

Providing a categorical exemption 

could have the effect of discouraging 

manufacturers from developing 

biobased products within a designated 

item. USDA believes this would have an 

unnecessary dampening effect on 

potential markets for acceptable 

biobased products in the future. 

Finally, USDA urges manufacturers to 

note the concerns raised by this 

commenter and recognize that extra 

effort on the part of manufacturers may 

be necessary to provide procurement 

agents with evidence that the 

manufacturer’s products meet the 

agency’s requirements. This may require 

manufacturers to test their products 

against all applicable standards and 

requirements for the markets (e.g., 

healthcare facilities) in which they wish 

to market their products. In addition, 

because procuring agencies are not 

required to purchase biobased products 

if they fail any one of the criteria that 

allow an agency to not purchase a 

biobased product within a designated 

item, USDA is actively working to 

identify and publicize relevant 

performance standards so that 

manufacturers can understand how to 

make their products more desirable. To 

make information on the performance 

characteristics of biobased products 

more accessible to the procuring 

agencies, USDA is working with 

manufacturers to post product 

performance information on the 

BioPreferred Web site or to provide a 

link to the manufacturer’s Web page 

where such information can readily be 

obtained. While manufacturers have the 

responsibility to test their products 

against applicable agency performance 

requirements and specifications, in 

order to comply with section 2902.4 of 

the Guidelines, procuring agencies will 

have to reexamine their performance 


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requirements and specifications to 

ensure that they are not biased against 

biobased products, that they are still 

necessary and relevant, and that they 

are not redundant. 

With regard to the commenter’s 

question as to whether the Agency had 

considered EPA’s responsibility for 

determining whether a product can be 

considered a disinfectant, USDA 

contacted EPA and was informed that 

EPA does not regulate hand sanitizers. 

While EPA regulates a wide range of 

antimicrobial products, it does not 

regulate products used directly on 

humans or animals. Topical 

antimicrobial products are regulated by 

the Food and Drug Administration 

(FDA). FDA published a proposed rule 

on topical antimicrobial drug products 

for human use in the form of a 

‘‘Tentative Final Monograph’’ in 1994. 

At that time, FDA requested comments 

on the use of topical antimicrobials as 

hand sanitizers or dips. The monograph 

contains the various testing and labeling 

requirements for these products. A 

representative of the Soap and Detergent 

Association indicated that, in practice, 

manufacturers follow the guidance in 

the Tentative Final Monograph. 

USDA reviewed the June 17, 1994, 

Federal Register notice and determined 

that the definition of hand sanitizer in 

this final rule is consistent with FDA’s 

discussion on health-care personnel 

handwash or antiseptic handwash, 

which are the equivalent categories to 

hand sanitizers. In that notice, FDA 

indicated that labeling of such product 

could be phrased as ‘‘handwashing to 

decrease bacteria on the skin.’’ See 

Appendix E of the document ‘‘Technical 

Support for Final Rule—Round 2 

Designated Items,’’ which is available 

on the BioPreferred Web site, for the 

relevant portion of the June 17, 1994, FR 

notice. 

Comment: One commenter 

recommended that a more thorough 

industry investigation be conducted 

prior to the publication of a final rule 

by conducting more analyses on 

products not found in the initial 

investigation. The commenter stated 

that they were concerned that USDA’s 

collection methods were deficient 

because so few of products formed the 

basis of the proposed rule. The 

commenter referred to a California Air 

Resources Board survey which 

identified 291 antimicrobial hand or 

body cleaners or soaps, 43 antimicrobial 

dry hand washes, 497 general hand or 

body cleaners or soaps, 26 hand wipe 

towelettes, and 87 products in a 

category of other hand cleaners, 

sanitizers, and soaps sold in the state of 

California alone. The commenter 

therefore recommended that USDA 

conduct a very thorough evaluation of 

both hand cleaners and sanitizers. 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. 

Response: USDA appreciates the 

information concerning the CARB 

study, which covered both biobased and 

non-biobased products. Because the 

purpose 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 36 manufacturers of 

biobased products within this item 

(including both subcategories), with 73 

biobased products being marketed. The 

range of biobased contents among the 35 

tested products is from 3 percent to 100 

percent. 

While USDA has in place a rigorous 

procedure for identifying products that 

are biobased, USDA recognizes that its 

procedure will not uncover all possible 

biobased products. Based on available 

data, USDA cannot determine if the 

samples that were voluntarily submitted 

by manufacturers are representative of 

all biobased products within this item. 

Regardless, USDA believes that it is 

reasonable to set minimum biobased 

contents based on the information it 

does have. If the commenter or others 

have additional information on the 

biobased content of other biobased 

products within this item, USDA 

encourages the commenter and others to 

submit that information to USDA. 

USDA will evaluate the additional 

information in relationship to the 

minimum biobased content for this 

designated item. 

For this and all other items, USDA 

welcomes assistance in identifying 

manufacturers and their biobased 

products for the preferred procurement 

program. A list of such items can be 

found on the BioPreferred Web site. 

Composite Panels 

Comment: Two commenters 

recommended that the description of 

composite panel be expanded to 

recognize that other materials, such as 

wheat or rice straw, wood, and wood 

fibers, may be used in the manufacture 

of composite panels. One of the 

commenters also recommended that, if 

the description continues to include 

reference to recycled or recovered wood, 

the EPPS CPA 2–06 standard should be 

referenced with its thorough reference 

list of recycled/recovered fibers sources 

used in composites. 

Response: The commenters suggested 

expanding the description of what 

composite panels may be made from 

(see 71 FR 47574) to include ‘‘wood and 

wood fibers.’’ The description provided 

on page 47574 of the August 17, 2006, 

preamble is intended to be illustrative of 

types of materials used to manufacture 

composite panels; it does not exclude 

composite panels engineered from wood 

or wood fibers. Further, the definition of 

this designated item does not limit the 

types of materials that can be used to 

create a biobased composite panel. 

Therefore, USDA has not changed the 

definition of this item with regard to the 

commenter’s recommendation. As 

discussed in the next response, 

however, USDA has created 

subcategories within this item. 

Comment: One commenter identified 

the potential applications in which 

biobased composite panels may overlap 

with EPA designated recovered content 

products and stated that it is unclear 

whether the preferred procurement of 

composite panels was confined to these 

very narrow applications. The 

commenter pointed out that composite 

panels are used in a wide variety of 

products that may be specified and 

purchased by the government including 

furniture, office and kitchen cabinets, 

exterior siding, laminate flooring, 

shelving, moldings, mill work, doors, 

paneling, floor underlayment, stair 

treads. The commenter, therefore, 

recommended that the purchasing 

applications need to be expanded to 

include these categories. 

Response: USDA agrees with the 

commenter that composite panels can 

be used in many different applications. 

As a result of this and other comments, 

USDA has re-evaluated the product data 

for this proposed item and has created 

five subcategories, as follows: (1) Plastic 

lumber composite panels, (2) acoustical 

composite panels, (3) interior panels, (4) 

structural interior panels, and (5) 

structural wall panels. Definitions were 

developed for each subcategory based 

on the typical applications for products 

with the subcategory. The definitions, as 

presented in the rule, provide examples 

of the types of applications for the 

subcategories but are not intended to be 

all inclusive of the variety of 

applications that exist. 

These subcategories were developed 

based on the range of applications as 

well as the biobased content range 

among the tested products. The 

biobased content data for the 

subcategories were as follows: 


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(1) Plastic lumber composite panels—

26 and 29 percent. 

(2) Acoustical composite panels—40 

percent. 

(3) Interior panels—58, 60, 61, 62, 64, 

65, and 66 percent. 

(4) Structural interior panels—92, 92, 

and 92 percent. 

(5) Structural wall panels—97 and 

100 percent. 

Based on the narrow range of 

biobased contents within each of the 

subcategories, the minimum biobased 

contents were set at: Plastic lumber 

composite panels—23 percent, 

acoustical composite panels—37 

percent, interior panels—55 percent, 

structural interior panels—89 percent, 

and structural wall panels—94 percent. 

Comment: One commenter 

recommended that additional standards 

be referenced for composite panels. 

These standards are: ANSI A208.1–1999 

for Particleboard, ANSI A208.2–2002 for 

MDF, ANSI A1 35.4–2004 for Basic 

Hardboard, ANSI A135.5–2004 for 

Prefinished Hardboard Paneling and 

ANSI/AHA A135.6–1998 for Hardboard 

Siding. The commenter also 

recommended that the final rule 

reference the Environmentally 

Preferable Product Standard, EPPS 2–

06, which specifies recycled/recovered 

fiber content. For composite panel 

purchases linked to kitchen cabinets, 

the commenter recommended 

referencing the Kitchen Cabinets 

Manufacturers Association program. 

Response: USDA thanks the 

commenter for identifying these ANSI 

and NSIIAHA standards. USDA has 

added these standards for composite 

panels to the BioPreferred Web site. 

However, USDA does not see the need 

to make reference to the other standards 

as they do not apply to the designation 

of composite panels for preferred 

procurement of biobased products. 

Those wanting to learn about the 

standards for recycled/recovered 

content should consult EPA’s EPPS Web 

site. In addition, the designation of 

composite panels is for the purchase of 

the panels and not for the end product, 

such as kitchen cabinets (i.e., kitchen 

cabinets are not a biobased product 

being designated for preferred 

procurement). 

Comment: One commenter requested 

that the final rule for composite panels 

indicate that the Composite Panel 

Association has adopted a Grademark 

Certification Program for 

Environmentally Preferable Products as 

defined by Federal Executive Order 

13101. The EPP certification program 

covers particleboard, medium density 

fiberboard and hardboard and requires 

that 100 percent of the content of the 

product is recycled/recovered fiber. The 

commenter recommended that the 

description of composite panel 

constituents in the proposed rule be 

modified to become inclusive of this 

standard. 

Response: USDA thanks the 

commenter for identifying the 

Grademark Certification Program, which 

contains information on products 

within this designated item. USDA has 

referenced this program on the 

BioPreferred Web site. This will provide 

additional information on these 

products to those who purchase such 

products. However, there is no need to 

include this certification program into 

these standards as they do not affect 

determining whether a product qualifies 

as a biobased product eligible for 

preferred procurement. 

Comment: Three commenters stated 

that the proposed minimum biobased 

content was too low. 

One of the commenters stated that, 

based on the data in the background 

information, the level should be set at 

60 percent or higher. The commenter 

then stated that, if the lower content 

levels reflect products used for different 

applications than those with higher 

content levels, USDA should provide 

separate content recommendations. 

The second commenter stated that the 

proposed minimum biobased content of 

26 percent was apparently based on the 

biobased content of the lowest 

performing product tested. The 

commenter felt that this was a rather 

lenient way to set a standard, 

particularly when most composite 

products are 100 percent biobased when 

the metric includes the raw materials 

referenced in EPPS CPA 2–06. The 

commenter then suggested that the 

standard be set to give preference to the 

highest biobased content products. 

The third commenter stated that they 

believe that the proposed minimum 

biobased content falls below the 

minimum goals set for the preferred 

procurement program and actually 

could create a disincentive for 

expanding biobased product use. Based 

on the available data in the rulemaking 

and their experience with their own 

product, the commenter recommended 

setting the minimum content standard 

at a higher level. The commenter 

pointed out that a 26 percent standard 

was proposed in spite of the test results 

showing a mean content of all products 

tested of 71 percent and reflects the 

content of the lowest 12 percent of the 

products tested. The commenter points 

out that only 8 of 51 products were 

tested, less than 16 percent of all 

products considered. The commenter 

then stated that with the median of 

tested products at 71 percent content, 

and 4 products testing at greater than 90 

percent content, it is realistic to expect 

that other products, if tested, would 

provide important additional support 

for setting the content standard at a 

higher level than the product with the 

lowest content. The commenter felt that 

setting the standard below the level of 

content of the product with the lowest 

biobased content is inconsistent with 

the goal of discouraging the use of 

products with de minimums biobased 

content to satisfy the requirements of 

Section 9002. Rather, according to the 

commenter, setting a higher level truly 

would encourage expended use of 

agricultural products in biobased 

products and would have a greater 

positive impact on rural communities 

by providing new and expanded 

markets for agricultural producers and 

expanding the manufacturing base in 

those communities. Finally, the fact that 

75 percent of the products tested at 

greater than 50 percent content clearly 

demonstrates, according to the 

commenter, that products with the 

necessary performance-based 

characteristics can be developed and 

procured for the stated Federal purposes 

with a level of biobased content 

substantially higher than 26 percent. 

Response: As discussed in a previous 

response, USDA has re-evaluated the 

proposed designated item and has 

determined that it is reasonable to create 

subcategories for this item based upon 

application use. USDA believes that the 

creation of the five subcategories, with 

a separate minimum biobased content 

for each, adequately addresses the 

commenters’ concerns. Additional 

details on the subcategorization and 

establishment of their minimum 

biobased contents for products within 

this item can be found in Chapter 3.0 of 

the document ‘‘Technical Support for 

Final Rule—Round 2 Designated Items,’’

which is available on the BioPreferred 

Web site. 

Comment: One commenter pointed 

out that the Composite Panel 

Association (CPA) has commissioned 

the Consortium for Research on 

Renewable Industrial Materials to 

conduct life-cycle inventory and LCA 

on particleboard, medium density 

fiberboard, and hardboard, the results of 

which are expected to be available in 

February 2007. The commenter 

encouraged the USDA to contact CPA 

about the CORRIM study. The 

commenter pointed out that, as just one 

important consideration that will 

influence the LCA report, wood is 

neutral with regard to carbon emission 

to the atmosphere, unlike petroleumbased products. 


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Response: USDA thanks the 

commenter for the information 

concerning the CORRIM and its ongoing 

life-cycle inventory and analysis. USDA 

has contacted the Composite Panel 

Association and requested that a copy of 

the study be sent to USDA once it is 

completed. USDA will then forward the 

results to NIST for review. If NIST 

validates the results, USDA will post the 

results on the BioPreferred Web site in 

order to provide the information to 

purchasers. 

Fluid-Filled Transformers 

Comment: One commenter stated that 

their Master Specifications requires 

transformer fluids to meet ASTM 

D3487–00, which was not listed among 

the standards for transformer fluids in 

the proposed rule. According to the 

commenter, in order for their facilities 

to use biobased products in lieu of 

traditional dielectric, the biobased fluid 

must meet original equipment 

manufacturer’s specifications for 

existing equipment or performance 

standards related to electrical power 

generation and transmission for new 

transformers. 

Response: USDA thanks the 

commenter for identifying this standard. 

USDA has included this standard in the 

technical information on this item on 

the BioPreferred Web site. 

Comment: Three commenters stated 

that the proposed minimum biobased 

content of 66 percent for transformer 

fluids is too low. Two of the 

commenters recommended a minimum 

biobased content of 90 percent. One of 

the commenters pointed out that there 

are currently over 20,000 functioning 

transformers, produced by more than 

two dozen domestic manufacturers in at 

least 100 domestic electric utilities, 

filled with more than 95 percent 

vegetable oil-based dielectric coolants 

from at least two fluid manufacturers. 

According to this commenter, there are 

no technical reasons to reduce the 

minimum content to such a low value. 

The commenter suggested using a 

minimum biobased carbon content of 90 

percent, stating that anything lower 

could be an incentive for suppliers to 

dilute the more expensive biobased base 

oil with cheaper petroleum oils. By such 

a dilution, the result would be using 

less biobased oils, increasing the fire 

hazard, and reducing the environmental 

benefits. 

The second commenter stated that 

there are two basic chemistries used to 

make biobased transformer fluids—

vegetable oil and synthetic esters. 

According to this commenter, the 

vegetable oil-based fluids are typically 

in the 95 percent biobased content 

range, while synthetic esters are in the 

70 percent range. The commenter stated 

that synthetic ester-based transformer 

fluids are twice the cost of vegetable oilbased transformer fluids and are only 

used in very extreme applications, such 

as arctic conditions. The commenter 

then stated that by adopting a 66 

percent minimum, USDA is setting the 

threshold at a level to include rare 

specialty applications rather than focus 

on the mainstream market, and it would 

not likely result in much biobased 

purchase volume anyway due to very 

high price of the synthetic ester-based 

transformer fluids. The commenter also 

felt that USDA may be creating an 

incentive for the introduction of 

‘‘vegetable oil—mineral oil blends’’ that 

would unnecessarily use less biobased 

raw materials, thereby opposing the 

intent of BioPreferred Program. For 

these reasons, the commenter 

recommended a minimum biobased 

content for fluid-filled transformers of 

90 percent. 

The third commenter stated that 

based on the limited data in the 

background document, the level should 

be higher, but given the very limited 

data, the commenter recommended that 

USDA re-consider the content levels if 

comments received from product 

manufacturers and vendors support a 

higher content recommendation. 

Response: USDA has re-evaluated the 

data for products within this item and 

has concluded that because there are 

two distinct types of formulations of 

transformer fluids, and because the 

ester-based fluids appear to be used 

primarily in severe weather 

applications, there is sufficient reason to 

subcategorize the item. Therefore, the 

fluid-filled transformers item has been 

divided into two subcategories: (1) 

Synthetic ester-based fluid-filled 

transformers and (2) vegetable oil-based 

fluid-filled transformers. 

Based on data available at proposal, 

USDA had biobased content information 

on one synthetic ester-based transformer 

fluid and one vegetable oil-based 

transformer fluid. The biobased contents 

of these two products were, 

respectively, 69 percent and 98 percent. 

Since proposal, USDA has obtained 

biobased content data on an additional 

vegetable oil-based transformer fluid. 

The tested biobased content of this 

product is 100 percent. 

For the synthetic ester-based fluidfilled transformers subcategory, USDA 

is establishing a minimum biobased 

content of 66 percent based on the 

single product for which biobased 

content was tested. For the vegetable 

oil-based fluid-filled transformers 

subcategory, USDA is establishing a 

minimum biobased content of 95 

percent based on the two products 

tested. 

As pointed out by the commenter, the 

cost of the synthetic ester-based product 

is sufficiently higher than the vegetable 

oil-based products to discourage their 

use, except in extreme applications. 

Thus, most purchasers are expected to 

buy the higher biobased content 

vegetable oil-based products regardless 

of the specified minimum biobased 

content. As pointed out elsewhere in 

this preamble, Federal agencies are 

expected under section 9002 to 

purchase products with the highest 

biobased content, as long as the 

products meet their performance needs 

and are available at an acceptable cost. 

To help purchasing agencies identify 

the biobased contents of available 

products and select those with higher 

biobased contents, the biobased 

contents of available products will be 

posted on the BioPreferred Web site. 

Additional details on the 

subcategorization and the establishment 

of the minimum biobased contents for 

this item can be found in Chapter 5 of 

the document ‘‘Technical Support for 

Final Rule—Round 2 Designated Items,’’

which is available on the BioPreferred 

Web site. 

Disposable Containers (Formerly 

Biodegradable Containers) 

Comment: One commenter stated that 

the definition of containers is vague and 

needs clarification. The commenter 

recommended that this item be retitled 

‘‘disposable food service ware’’ because 

‘‘biodegradable containers’’ could be 

defined as encompassing boxes, pallets 

and packaging used to transport and 

store food products. 

Response: USDA agrees with this 

commenter that this item should be 

focused on disposable containers and, 

as noted in a response to a previous 

comment, has renamed this designated 

item as ‘‘disposable containers.’’ It is 

USDA’s intent for this item to include 

products in addition to disposable food 

service ware. Such additional products 

include containers that may take the 

form of boxes and packaging. However, 

pallets are not containers and would not 

be included under this item. Therefore, 

USDA has not limited this item to 

products that are only in the food 

service arena as requested by the 

commenter. 

USDA notes that the products within 

this designated item may overlap with 

the EPA-designated recovered content 

product ‘‘Paper and Paper Products.’’

This EPA-designated recovered content 

product covers a wide range of paper 

products, including ‘‘paperboard and 


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packaging.’’ This subcategory, in turn, 

covers a variety of products, including 

corrugated shipping containers and 

industrial paperboard (e.g., mailing 

tubes). Additional information on this 

EPA-designated recovered content item, 

including the recommended recovered 

content levels for these products, can be 

found at http://www.epa.gov/epaoswer/ 

non-hw/procure/products/ 

paperbrd.htm. 

Comment: One commenter suggested 

that biodegradable containers that 

replace single-use disposable containers 

that are not now recycled (such as 

polystyrene take-out containers) are 

preferable and deserve to be given 

procurement preference. 

Response: As noted in the previous 

response, USDA has renamed this item 

as ‘‘disposable containers.’’ By doing so, 

preferred procurement will be given to 

disposable containers that are both 

biobased and biodegradable. This meets 

the commenter’s request. 

Comment: One commenter believes 

that the requirement to meet ASTM 

D6400 ‘‘Standard Specifications for 

Compostable Plastics’’ is not an 

appropriate definition for the category 

of Biodegradable Containers for 

inclusion on the Biobased Products List. 

According to the commenter, this test 

methodology is relatively new and not 

widely used or accepted at this time. 

The commenter also stated that the cost 

requirements for this test may make it 

unaffordable to many small or start-up 

businesses, making it a significant 

barrier to inclusion on the list. The 

commenter indicated that there are 

many alternative compost test 

methodologies, including full-scale 

testing conducted by the USDA 

Agricultural Research Service, which 

was conducted in conjunction with the 

Department of the Interior, the 

Environmental Protection Agency and 

the General Services Administration. 

The commenter felt that this work 

needed to be considered in defining this 

category. The commenter then stated the 

current definition could exclude 

products with large amounts of biobased 

materials that could significantly 

expand the use of biobased materials 

even though such products would not 

be compostable according to the ASTM 

D6400 test. Such an outcome, according 

to the commenter, would be counter to 

the goals of the project. The commenter 

noted that the other nine categories in 

this rulemaking do not include such a 

requirement. 

Response: As stated in a response to 

another comment, the intent of this 

designated item is to give preferred 

procurement to biobased containers that 

are also biodegradable over disposable 

containers and not to give preferred 

procurement to biodegradable, biobased 

containers over biodegradable 

containers. To implement this intent, 

USDA has renamed the item to 

‘‘disposable containers’’ and has added 

the requirement that the biobased 

versions of disposable containers be 

demonstrated to be biodegradable. The 

proposed rule included reference to 

ASTM D6400 as the method for 

determining whether or not a container 

is biodegradable. USDA agrees that 

some biobased versions of disposable 

containers may not be found to be 

biodegradable using ASTM D6400 

because of their composition, but may 

be found to be biodegradable under 

other, equivalent test methods. 

Therefore, in recognition of this, the 

final rule requires the use of ASTM 

D6400 or other applicable and 

appropriate standard for 

biodegradability to demonstrate that a 

biobased container is also 

biodegradable. 

Comment: Two commenters requested 

that the definition of biodegradable 

containers specifically exclude beverage 

bottles. According to the commenters, 

the current infrastructure to compost 

biodegradable containers and other 

biodegradable products is not yet 

developed and available in most U.S. 

communities and, thus, biodegradable 

beverage bottles that replace 

poly(ethylene terephthalate) (PET) or 

high-density polyethylene (HDPE) 

bottles are not necessarily preferable as 

these displace a product for which an 

established recycling infrastructure 

exists. The commenters claim that 

biodegradable beverage bottles in 

today’s recycling infrastructure would 

end up neither composted nor recycled 

but in the reject stream of almost all 

recycling facilities in the U.S. The 

commenters then state that, if the USDA 

procurement program were to increase 

demand for biodegradable beverage 

bottles, this would have severe negative 

economic repercussions for wellestablished plastic bottle recyclers. 

Response: The purpose of the 

BioPreferred Program is to encourage 

the purchase of biobased products, 

including, if they qualify, soda bottles. 

Like the commenter, USDA is 

concerned that such products are 

disposed of in an environmentally 

responsible manner. USDA has 

consulted with EPA and with 

representatives of the Association of 

Post-Consumer Plastic Recyclers 

(APCPR) to discuss this issue. APCPR 

explained that their primary concern 

with attempts to place PLA or other 

biobased plastics in existing recycling 

streams related to the negative impacts 

that these biobased plastics have on the 

recycling of PET. They pointed out that 

over seven billion pounds of PET are 

used annually in the country and that 

the recycling of PET has been adopted 

on a large-scale basis. There are two 

primary concerns related to the 

introduction of biobased plastics into 

the PET recycling stream. First, the 

presence of biobased plastics even in 

very small amounts (less than 1 percent) 

causes the resulting recycled plastic to 

lose the clarity which is demanded in 

the largest market for these products 

(‘‘soda’’ and water bottles). Even a slight 

haze in the final product is 

unacceptable to the bottling industry. 

The second concern relates to the actual 

recycling technology. PET is separated 

from HDPE and other petroleum-based 

plastics by floatation. PET floats in 

water and the others do not. Most 

biobased plastics also float, however, 

making the separation of PET from 

biobased plastics using floatation 

technology impossible. Thus, if there 

are biobased plastics in the recycling 

stream they remain with the PET 

stream. Following separation, the PET is 

shredded and then placed in dryers to 

remove the moisture. Because biobased 

plastics melt at a temperature that is 

much lower than the melting 

temperature of PET, the biobased 

plastics tend to melt in the PET dryers. 

Recyclers have indicated that the 

presence of even 0.1 percent of biobased 

plastics in the shredded stream can 

cause the dryers to ‘‘gum up’’ and 

results in the rejection of the 

contaminated PET. 

APCPR pointed out that an opticaltype technology for separating biobased 

plastics from PET is available, but that 

it is very expensive. Because there is 

currently such a small amount of 

biobased plastics available for recycling, 

there is no economic incentive for 

recyclers to purchase the equipment 

necessary to separate it from PET. 

APCPR further explained that for the 

recycling of biobased plastics to become 

economically viable there needs to be 

both a readily available supply of used 

material and a significant market for the 

recovered plastic, neither of which 

exists today. 

APCPR also pointed out that biobased 

polymers used for other applications, 

such as ‘‘clam shell’’ containers and 

other therma-form products, do not 

present a problem for the recycling of 

those products. They also noted that 

composting in commercial composting 

operations is a viable alternative to the 

recycling of biobased polymers. 

USDA encourages procuring agents 

and those involved in recycling to 

provide education material to potential 


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Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Rules and Regulations 27949 

purchasers and users on 

environmentally preferred disposal of 

such products. The APCPR Web site 

(http://www.plasticsrecycling.org) 

presents technical information on 

plastics recycling and procuring agents 

are urged to visit the site for more 

information. In addition, USDA will 

post relevant information in this regard 

on the BioPreferred Web site to assist 

manufacturers, purchasers, and users 

become aware of the potential impacts 

of biobased plastics on recycling and on 

the preferred disposable methods for 

such products. 

Comment: One commenter asked 

USDA to confirm whether 

biodegradable containers include 

products made with polylactic acid 

(PLA). If it does, the commenter 

suggested that EPA discuss the impact 

of mixing used PLA products with other 

plastics in recycling operations. The 

commenter pointed out that PLA can be 

a minor contaminant if mixed with 

fossil fuel based plastics such as PET 

and users of PLA products might 

inadvertently put used products in 

traditional recycling collection systems, 

because the products may appear 

similar to other types of plastic. The 

commenter suggested that users be 

advised instead to either compost their 

PLA products or work with PLA 

manufacturers to return the material 

back to them for recycling. 

Response: USDA confirms that a 

biodegradable container made from PLA 

would qualify as a biobased product 

under this item. As discussed in the 

previous response, USDA is concerned 

that any product that affects recycling 

adversely be disposed of properly. 

Therefore, USDA encourages the 

commenter and those involved in 

recycling to provide education material 

to potential purchasers and users on 

environmentally preferred disposal of 

such products. To the extent that an 

existing market for recycled bottles 

changes, USDA believes this creates an 

opportunity for a new market for the 

recycling of biodegradable containers. 

Comment: Three commenters 

recommended lowering the minimum 

biobased content for biodegradable 

containers. One commenter 

recommended lowering the minimum 

biobased content from 96 percent to 72 

percent, and one commenter 

recommended lowering it to 85 percent. 

The third commenter did not offer a 

specific recommendation as an 

alternative biobased content. 

In support of their recommendation of 

72 percent, the first commenter stated 

that their product has a biobased 

content of 75 percent, but had not been 

tested in time to be part of the data set 

used for the proposed rule, although its 

BEES analysis had been used. The 

commenter stated that by setting the 

minimum biobased content at 72 

percent, the goal of inclusion of high 

performing biobased products to 

maximize the use of these materials will 

be better met. 

The second commenter supported 

their recommendation (85 percent) by 

stating that this segment of the market 

is still very new, as evidenced by the 

fact that only 6 containers were found 

and only 2 provided biobased 

percentages. The commenter stated that 

an 85 percent minimum is still 

significantly higher than that of 

biodegradable films and cutlery and that 

the lower threshold should enable the 

properties of these materials to be 

expanded and for more applications to 

be marketed. The commenter then 

stated that USDA can always raise the 

minimum contents in the future as the 

market becomes more fully developed. 

The third commenter expressed 

concern that a 96 percent minimum 

biobased content would severely limit 

the product selection options for 

containers. This commenter pointed out 

that suitable containers with biobased 

contents ranging from 45 to 80 percent 

are under development and should be 

commercially viable in 2007, including 

two products that the commenter is 

currently working on. The commenter 

also referred to a new class of biobased 

containers incorporating PLA based 

solutions that would add toughness to 

the containers. The commenter, 

therefore, requested USDA to refrain 

from setting a minimum biobased 

content of 96 percent for biodegradable 

containers in favor of setting the 

biobased content at a lower level, 

thereby increasing the number of 

potential products and materials that 

would be available. The commenter 

concluded by stating that by 

implementing the 96 percent limit 

proposed, the only current material 

would be PLA, which is in very short 

supply and is very limited in terms of 

usage because of heat resistance and 

impact resistance. 

Response: At the time USDA 

investigated this item for designation, 

biobased content data were available for 

two products, which had biobased 

contents of 99 and 100 percent. Since 

the publication of the proposed rule, the 

first commenter has provided a sample 

that has a tested biobased content of 75 

percent. USDA has also obtained 

biobased content test results for 

products with 29, 32, and 98 percent 

biobased content. Thus, the data set for 

this item is now 29, 32, 75, 98, 99, and 

100 percent biobased contents. Because 

there is a significant break between the 

32 percent product and the 75 percent 

product, USDA reviewed the available 

product information to determine if 

there was any justification for creating 

two subcategories within this item. 

USDA is aware that some biobased 

disposable containers provide improved 

performance characteristics when 

compared with others when used in 

high temperature/moisture applications. 

At this time, however, USDA does not 

have sufficient product performance 

information to establish subcategories. 

USDA will continue to gather 

information on this item and, if 

sufficient product performance data can 

be obtained, will consider creating 

subcategories in a future rulemaking. 

USDA is setting the minimum biobased 

content for this item at 72 percent based 

on the product with a tested biobased 

content of 75 percent. 

Additional details on the products 

within this item can be found in the 

document ‘‘Technical Support for Final 

Rule—Round 2 Designated Items,’’

which is available on the BioPreferred 

Web site. 

Comment: One commenter suggested 

that, in addition to the BEES analysis, 

food safety and product integrity needs 

to be incorporated in product choice. 

According to the commenter, biobased 

biodegradable containers produced from 

natural starch-based or synthetic cornbased feedstock have their limits on 

what food products can be safely 

packaged in them. The commenter 

pointed out that this item does not take 

variability of foods into account, such as 

hot coffee, high moisture foods, or 

acidic condiments when prescribing 

biodegradable containers under this 

rule. The commenter concluded by 

stating that food packaging made from 

biomass is still experimental and there 

remain considerable data gaps on its 

feasibility. 

Response: While USDA agrees with 

the commenter that some biobased 

biodegradable containers will perform 

better under certain circumstances than 

others, there are products within this 

item that are being used in the market 

place. Thus, USDA disagrees with the 

characterization of biobased containers 

as ‘‘experimental,’’ although there are 

some products still being developed in 

this item as well as in other items. As 

more products are developed within 

this item, USDA will make information 

available on the BioPreferred Web site 

to improve the data available to 

procuring agencies. Finally, the statute 

allows purchasers to not give preferred 

procurement if a biobased product fails 

to meet applicable performance 

standards. 


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Fertilizers 

Comment: One commenter stated that 

the definition of fertilizers appears to 

cover both biobased and chemical 

fertilizers and asked if this was correct. 

Response: The commenter is correct—

the definition of fertilizers covers both 

biobased and chemical fertilizers. 

Comment: One commenter asked if a 

hypothetical product that contains 10 

percent total organic carbon by weight, 

and 90 percent other materials would 

qualify as a fertilizer as long as a 

minimum 71 percent of the weight of 

the total organic carbon component is 

qualifying biobased carbon. 

Response: The commenter is correct—

such a hypothetical product would 

qualify as a fertilizer and would be 

afforded preferred procurement as long 

as its biobased content met or exceeded 

the minimum biobased content for 

fertilizers. 

Comment: One commenter suggested 

USDA rename the item ‘‘biobased 

fertilizers,’’ to distinguish it from other 

types (e.g., inorganic, biosolids) 

fertilizers. Otherwise, for example, it 

appears that any type of fertilizers could 

be used in organic farming. 

Response: Under this item, the intent 

is to provide preferred procurement for 

fertilizers that are biobased. Such 

biobased fertilizers would replace 

‘‘fertilizers,’’ not biobased fertilizers. 

The name and definition of this item, 

therefore, must remain ‘‘fertilizers.’’

Biobased fertilizers may contain 

chemical and synthetic products and 

even recycled hazardous materials. 

Therefore, some biobased fertilizers may 

be incompatible with those that can be 

used in organic farming. In addition, if 

a biobased fertilizer contains recycled 

hazardous wastes, the fertilizer would 

need to meet applicable land disposal 

restriction standards for any hazardous 

constituents they contain, as required 

under 40 CFR 266.20(d). 

Comment: One commenter asked 

whether these products are blends of 

both biobased and chemical 

components or whether they mostly 

consist of biobased components. The 

commenter suggested adding a 

discussion regarding what other types of 

materials could be in the fertilizers 

along with the ‘‘waste’’ or ‘‘recovered’’

biobased components (e.g., chemical/ 

synthetic ingredients). 

Response: In response to the 

commenter’s questions, most biobased 

fertilizers are likely to consist mostly of 

biobased components, but they can be 

made from blends of both biobased and 

chemical components. USDA has added 

additional information to the definition 

of fertilizer in the final rule to identify 

types of material that may be found in 

fertilizers. 

Comment: One commenter asked 

whether the biobased carbon in these 

fertilizers is always recovered, or is it 

ever virgin. The commenter stated that 

if it’s always recovered, then there will 

always be overlap (i.e., not ‘‘in some 

cases’’ as stated in proposed 

§ 2902.22(d), but there will never be an 

issue since buying this product will 

simultaneously satisfy both statutes. 

The commenter suggested that USDA 

note in the preamble that if any of the 

fertilizers in question are made from 

recycled hazardous wastes, the fertilizer 

products would need to meet applicable 

land disposal restriction standards for 

any hazardous constituents they 

contain, as required under 40 CFR 

266.20(d). 

Response: At this time, USDA is 

unaware of any biobased fertilizers 

made from virgin materials. USDA 

agrees, therefore, that ‘‘in some cases’’ is 

incorrect based on our current 

knowledge. USDA also agrees with the 

commenter that this is irrelevant to the 

overlap concern because buying a 

biobased fertilizer satisfies both 

programs. With regard to the 

commenter’s second point concerning 

the potential for fertilizers being made 

with recycled hazardous waste and thus 

not being able to meet applicable land 

disposal restriction standards, while 

this is not applicable to biobased 

fertilizers alone, USDA will post such 

information on the BioPreferred Web 

site. In addition, USDA has added a 

note in the final rule concerning the 

potential effect of fertilizers that contain 

recycled hazardous material. 

Comment: One commenter stated that 

text in the preamble implied that EPA 

has finalized the designation for 

fertilizers under the CPG program. 

Because EPA has not done so at this 

time, the commenter requested that 

USDA check with EPA on the status of 

fertilizers before finalizing the 

designation. If EPA has not finalized the 

designation of fertilizers for the CPG 

program, EPA suggested that USDA use 

the word ‘‘proposed’’ when referring to 

fertilizers in the context of the CPG 

program. The commenter also stated 

that if the EPA final rule for fertilizers 

does not get finalized prior to the 

promulgation of this designated item, 

then USDA should delete proposed 

§ 2902.22(d) altogether, and instead 

address this issue solely in the 

preamble. The commenter provided 

suggested language (e.g., Overlap will 

not be an issue for fertilizers unless and 

until EPA finalizes the CPG designation 

for fertilizers made from recovered 

organic materials, in which case. 

***’’) 

Response: EPA finalized the 

designation of ‘‘fertilizer made from 

recovered organic materials’’ on 

September 14, 2007. As a result, 

paragraph (d) of section 2902.22 was 

retained in the final rule. 

Sorbents 

As part of USDA’s re-evaluation of the 

proposed minimum biobased contents 

in this regulation, USDA examined the 

proposed level of 52 percent for the 

sorbents item. Biobased content data are 

available for 11 products within this 

item, as follows: 55, 78, 92, 94, 97, 99, 

100, 100, 100, 100, and 100 percent. As 

the data range shows, there are 

significant breaks in the tested biobased 

contents between the 55 percent 

product and the 78 percent product, and 

between the 78 percent product and the 

92 percent product. Based on the 

information available, no obvious 

performance features justified 

subcategorizing or including the lower 

biobased content items in the final 

designation. In addition, USDA 

identified a grouping of products with 

biobased contents above 92 percent. 

This grouping would afford the Federal 

procurement community with 

numerous product options at the higher 

level of biobased content. 

Therefore, USDA has set the 

minimum biobased content for this item 

at 89 percent, based on the item with a 

tested biobased content of 92 percent. 

As with other designated items, USDA 

will continue to gather information on 

this item and, if information justifying 

subcategorization is obtained, will 

create subcategories within this item in 

a future rulemaking. 

Graffiti and Grease Removers 

Comment: One commenter suggested 

that the Green Seal standard for 

degreasers (GS–34) be mentioned as a 

relevant environmental standard for this 

item. 

Response: USDA agrees that such 

information can be useful and will add 

information on the Green Seal standard 

for degreasers (GS–34) to the 

performance information available on 

the BioPreferred Web site for this 

designated item. 

Comment: One commenter stated that 

the minimum biobased content for 

grease and graffiti removers should be 

38 percent (not 21 percent) based on the 

data in the background information. The 

commenter then stated that if the lower 

content levels reflect products used for 

different applications than those with 

higher content levels, then USDA 


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should provide separate content 

recommendations. 

Response: Since proposal, USDA has 

obtained biobased content test results 

for several additional products within 

this item. Also, the product with 24 

percent biobased content that was used 

as the basis for the proposed minimum 

biobased content is no longer offered by 

its manufacturer. The biobased content 

data set for this item now contains 19 

test results, as follows: 37, 38, 44, 52, 

53, 55, 58, 60, 61, 61, 63, 75, 77, 79, 89, 

90, 94, 95, and 100. USDA evaluated the 

available product information for this 

item and set the minimum biobased 

content at 34 percent. Even though there 

is a wide range of biobased contents 

within this item, USDA was unable to 

identify any significant break points or 

product groupings within the data. Also, 

as explained in the proposal preamble, 

graffiti and grease removers are 

formulated to remove a wide variety of 

paints and other marking materials, as 

well as grease, from many types of 

surfaces and using several different 

application techniques. For example, 

some graffiti and grease removers are 

sold as concentrates to be mixed with 

water, while others are designed to be 

used as purchased; some are designed to 

be sprayed on with power washers, 

while others are designed to be applied 

with brushes; and some are designed to 

provide a foaming action, while others 

are not. USDA considered creating 

subcategories for this item based on 

product performance claims, 

formulation, and/or application 

techniques but did not have sufficient 

data to do so at this time. USDA will, 

however, continue to gather and 

evaluate product information for this 

item and will develop subcategories in 

a future rulemaking if sufficient 

justification can be obtained. Because of 

the wide range in product 

characteristics, USDA is proposing to 

set the minimum biobased content at a 

level that will include all of the 

products sampled. 

Amendments to 7 CFR Part 2902 

USDA is making technical 

amendments to three sections in subpart 

B to: 

• Update the reference to the Web site 

from the ‘‘USDA Web site’’ to the 

‘‘BioPreferred Web site;’’

• Revise the text, as necessary, 

concerning requesting information on 

the types of materials contained in the 

product to include biobased ingredients; 

and 

• Add a note to refer the user to the 

potential overlap with EPA recovered 

material content products and where 

such products are designated in the 

Code of Federal Regulations. 

These technical amendments update 

these three paragraphs to conform to the 

most recent language being used in 

subsequently promulgated sections 

under subpart B, including those 

sections in today’s rulemaking. 

V. Regulatory Information 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action has been determined 

significant for purposes of Executive 

Order 12866 and, therefore, has been 

reviewed by the Office of Management 

and Budget. We are not able to quantify 

the annual economic effect associated 

with this final rule. As discussed in the 

proposed rule, USDA made extensive 

efforts to obtain information on the 

Federal agencies’ usage within the nine 

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 on 

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 nine 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 


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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 

increased industry competitiveness 

worldwide, thereby, creating 

opportunities for small entities. 

C. Executive Order 12630: 

Governmental Actions and Interference 

With Constitutionally Protected Property 

Rights 

This rule has been reviewed in 

accordance with Executive Order 12630, 

Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights, and does not contain policies 

that would have implications for these 

rights. 

D. Executive Order 12988: Civil Justice 

Reform 

This rule has been reviewed in 

accordance with Executive Order 12988, 

Civil Justice Reform. This rule does not 

preempt State or local laws, is not 

intended to have retroactive effect, and 

does not involve administrative appeals. 

E. Executive Order 13132: Federalism 

This rule does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

Provisions of this rule will not have a 

substantial direct effect on States or 

their political subdivisions or on the 

distribution of power and 

responsibilities among the various 

government levels. 

F. Unfunded Mandates Reform Act of 

1995 

This rule contains no Federal 

mandates under the regulatory 

provisions of Title II of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 

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

tribal governments, or the private sector. 

Therefore, a statement under section 

202 of UMRA is not required. 

G. Executive Order 12372: 

Intergovernmental Review of Federal 

Programs 

For the reasons set forth in the Final 

Rule Related Notice for 7 CFR part 3015, 

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

this program is excluded from the scope 

of the Executive Order 12372, which 

requires intergovernmental consultation 

with State and local officials. This 

program does not directly affect State 

and local governments. 

H. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Today’s rule does not significantly or 

uniquely affect ‘‘one or more Indian 

tribes, * * * the relationship between 

the Federal Government and Indian 

tribes, or * * * the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes.’’

Thus, no further action is required 

under Executive Order 13175. 

I. Paperwork Reduction Act 

In accordance with the Paperwork 

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

through 3520), the information 

collection under this rule is currently 

approved under OMB control number 

0503–0011. 

J. Government Paperwork Elimination 

Act Compliance 

The Office of Energy Policy and New 

Uses is committed to compliance with 

the Government Paperwork Elimination 

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

which requires Government agencies in 

general to provide the public the option 

of submitting information or transacting 

business electronically to the maximum 

extent possible. USDA is implementing 

an electronic information system for 

posting information voluntarily 

submitted by manufacturers or vendors 

on the products they intend to offer for 

preferred procurement under each 

designated item. For information 

pertinent to GPEA compliance related to 

this rule, please contact Marvin Duncan 

at (202) 401–0461. 

List of Subjects in 7 CFR Part 2902 

Biobased products, Procurement. 

■ For the reasons stated in the preamble, 

the Department of Agriculture is 

amending 7 CFR chapter XXIX as 

follows: 


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Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Rules and Regulations 27953 

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. Amend § 2902.3 by adding 

paragraph (e) to read as follows: 

§ 2902.3 Applicability to Federal 

procurements. 

* * * * * 

(e) Exemptions. The following 

applications are exempt from the 

preferred procurement requirements of 

this part: 

(1) Military equipment: Products or 

systems designed or procured for 

combat or combat-related missions. 

(2) Spacecraft systems and launch 

support equipment. 

■ 3. Amend § 2902.10 by removing 

paragraph (e) and revising paragraph (d) 

to read as follows: 

§ 2902.10 Mobile 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 following EPAdesignated 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 petroleum-based 

ingredients, re-refined oil, and/or any 

other 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 

lubricating oils containing re-refined oil 

and which product should be afforded 

the preference in purchasing. 

Note to paragraph (d): Mobile equipment 

hydraulic fluid products within this 

designated item can compete with similar 

lubricating oils containing re-refined oil. 

Under the Resource Conservation and 

Recovery Act of 1976, section 6002, the U.S. 

Environmental Protection Agency designated 

lubricating oils containing re-refined oil 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. 

■ 4. Amend § 2902.11 by revising 

paragraph (d) to read as follows: 

§ 2902.11 Roof coatings. 

* * * * * 

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

Qualifying biobased products that fall 

under this item may, in some cases, 

overlap with the following EPAdesignated recovered content product: 

Roofing Materials. 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 type of 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 recovered content 

roofing materials and which product 

should be afforded the preference in 

purchasing. 

Note to paragraph (d): Roof coating 

products within this designated item can 

compete with similar roofing material 

products. Under the Resource Conservation 

and Recovery Act of 1976, section 6002, the 

U.S. Environmental Protection Agency 

designated roofing material containing 

recycled material 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. 

§ 2902.13 [Amended] 

■ 5. Amend § 2902.13 by removing 

paragraph (d). 

■ 6. Amend § 2902.14 by removing 

paragraph (e) and revising paragraph (d) 

to read as follows: 

§ 2902.14 Penetrating lubricants. 

* * * * * 

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

Qualifying biobased products that fall 

under this item may, in some cases, 

overlap with the following EPAdesignated 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 petroleum-based 

ingredients, re-refined oil, and/or any 

other 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 

lubricating oils containing re-refined oil 

and which product should be afforded 

the preference in purchasing. 

Note to paragraph (d): Penetrating 

lubricant products within this designated 

item can compete with similar re-refined 

lubricating oil products. Under the Resource 

Conservation and Recovery Act of 1976, 

section 6002, the U.S. Environmental 

Protection Agency designated re-refined 

lubricating oils containing recycled material 

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. 

■ 7. Add §§ 2902.16 through 2902.24 to 

subpart B to read as follows: 

§ 2902.16 Adhesive and mastic removers. 

(a) Definition. Solvent products 

formulated for use in removing asbestos, 

carpet, and tile mastics as well as 

adhesive materials, including glue, tape, 

and gum, from various surface types. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a biobased content of at least 58 

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 adhesive and mastic 

removers. 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 adhesive and mastic removers. 

§ 2902.17 Plastic insulating foam for 

residential and commercial construction. 

(a) Definition. Spray-in-place plastic 

foam products designed to provide a 

sealed thermal barrier for residential or 

commercial construction applications. 

(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 plastic insulating 

foam for residential and commercial 


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27954 Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Rules and Regulations 

construction. 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 plastic insulating foam 

for residential and commercial 

construction. 

(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: Building 

Insulation. USDA is requesting that 

manufacturers of these qualifying 

biobased products provide information 

on 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 

building insulation and which product 

should be afforded the preference in 

purchasing. 

Note to paragraph (d): Biobased insulating 

products within this designated item can 

compete with similar insulating products 

with recycled content. Under the Resource 

Conservation and Recovery Act of 1976, 

section 6002, the U.S. Environmental 

Protection Agency designated building 

insulation 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 

building insulation products in the 

Recovered Materials Advisory Notice 

(RMAN) published for these products. 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. 

§ 2902.18 Hand cleaners and sanitizers. 

(a) Definitions. (1) Hand cleaners. 

Products formulated for personal care 

use in removing a variety of different 

soils, greases, and similar substances 

from human hands with or without the 

use of water. 

(2) Hand sanitizers. Products 

formulated for personal care use in 

removing bacteria from human hands 

with or without the use of water. 

Personal care products that are 

formulated for use in removing a variety 

of different soils, greases and similar 

substances and bacteria from human 

hands with or without the use of water 

are classified as hand sanitizers for the 

purposes of this rule. 

(b) Minimum biobased content. The 

minimum biobased content requirement 

for all hand cleaners and/or sanitizers 

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) Hand cleaners—64 percent. 

(2) Hand sanitizers (including hand 

cleaners and sanitizers)—73 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 hand cleaners and 

sanitizers. 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 hand cleaners and sanitizers. 

§ 2902.19 Composite panels. 

(a) Definitions. (1) Plastic lumber 

composite panels. Engineered products 

suitable for non-structural outdoor 

needs such as exterior signs, trash can 

holders, and dimensional letters. 

(2) Acoustical composite panels. 

Engineered products designed for use as 

structural and sound deadening material 

suitable for office partitions and doors. 

(3) Interior panels. Engineered 

products designed specifically for 

interior applications and providing a 

surface that is impact-, scratch-, and 

wear-resistant and that does not absorb 

or retain moisture. 

(4) Structural interior panels. 

Engineered products designed for use in 

structural construction applications, 

including cabinetry, casework, paneling, 

and decorative panels. 

(5) Structural wall panels. Engineered 

products designed for use in structural 

walls, curtain walls, floors and flat roofs 

in commercial buildings. 

(b) Minimum biobased content. The 

minimum biobased content requirement 

for all composite panels 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) Plastic lumber composite panels—

23 percent. 

(2) Acoustical composite panels—37 

percent. 

(3) Interior panels—55 percent. 

(4) Structural interior panels—89 

percent. 

(5) Structural wall panels—94 

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 composite panels. 

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 composite panels. 

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

Qualifying biobased products that fall 

under this item may, in some cases, 

overlap with the following EPAdesignated recovered content products: 

Laminated Paperboard and Structural 

Fiberboard; Shower and Restroom 

Dividers; and Signage. USDA is 

requesting that manufacturers of these 

qualifying biobased products provide 

information on 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 

laminated paperboard, structural 

fiberboard, shower and restroom 

dividers, and signage, and which 

product should be afforded the 

preference in purchasing. 

Note to paragraph (d): Composite panel 

products within this designated item can be 

made with recycled material. Under the 

Resource Conservation and Recovery Act of 

1976, section 6002, the U.S. Environmental 

Protection Agency designated laminated 

paperboard and structural fiberboard, shower 

and restroom dividers, and signage 

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 

laminated paperboard and structural 

fiberboard, shower and restroom dividers, 

and signage in the Recovered Materials 

Advisory Notice (RMAN) published for these 

products. 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. 

§ 2902.20 Fluid-filled transformers. 

(a) Definition. (1) Synthetic esterbased fluid-filled transformers. Electric 

power transformers that are designed to 

utilize a synthetic ester-based dielectric 

(non-conducting) fluid to provide 

insulating and cooling properties. 


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(2) Vegetable oil-based fluid-filled 

transformers. Electric power 

transformers that are designed to utilize 

a vegetable oil-based dielectric (nonconducting) fluid to provide insulating 

and cooling properties. 

(b) Minimum biobased content. The 

minimum biobased content requirement 

for all fluid-filled transformers 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) Synthetic ester-based fluid-filled 

transformers—66 percent. 

(2) Vegetable oil-based fluid-filled 

transformers—95 percent. 

(c) Preference compliance date. (1) 

Synthetic ester-based fluid-filled 

transformers. Determination of the 

compliance date for synthetic esterbased fluid-filled transformers is 

deferred until USDA identifies two or 

more manufacturers of synthetic esterbased fluid-filled transformers. At that 

time, USDA will publish a document in 

the Federal Register announcing that 

Federal agencies have one year from the 

date of publication to give procurement 

preference to biobased synthetic esterbased fluid-filled transformers. 

(2) Vegetable oil-based fluid-filled 

transformers. No later than May 14, 

2009, procuring agencies, in accordance 

with this part, will give a procurement 

preference for qualifying biobased 

vegetable oil-based fluid-filled 

transformers. 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 vegetable oil-based 

fluid-filled transformers. 

§ 2902.21 Disposable containers. 

(a) Definition. Products designed to be 

used for temporary storage or 

transportation of materials including, 

but not limited to, food items. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a biobased content of at least 72 

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) Biodegradability. At the time a 

manufacturer offers a product under this 

item for Federal purchase under the 

BioPreferred Program, the preferred 

procurement product must be capable of 

meeting the current version of ASTM 

D6400 if disposed of in a non-marine 

environment, the current version of 

ASTM D7081 if disposed of in a marine 

environment, or other appropriate and 

applicable standard for biodegradability. 

(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: Paper and 

Paper Products. USDA is requesting that 

manufacturers of these qualifying 

biobased products provide information 

on 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 

paper and paper products and which 

product should be afforded the 

preference in purchasing. 

Note to paragraph (d): Disposable 

containers can include boxes and packaging 

made from paper. Under the Resource 

Conservation and Recovery Act of 1976, 

section 6002, the U.S. Environmental 

Protection Agency designated paper and 

paper products 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 247.10. EPA provides recovered 

materials content recommendations for paper 

and paper products in the Recovered 

Materials Advisory Notice (RMAN) 

published for these products. 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. 

(e) 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 

containers. 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 containers. 

§ 2902.22 Fertilizers. 

(a) Definition. Products formulated or 

processed to provide nutrients for plant 

growth and/or beneficial bacteria to 

convert nutrients into plant usable 

forms. Biobased fertilizers, which are 

likely to consist mostly of biobased 

components, may include both biobased 

and chemical components. 

Note to paragraph (a): Biobased fertilizers, 

as well as other fertilizers, may be made with 

recycled hazardous waste. Such fertilizers 

need to meet applicable land disposal 

restriction standards for any hazardous 

constituents they contain, as required under 

40 CFR 266.20(d). 

(b) Minimum biobased content. The 

preferred procurement product must 

have a biobased content of at least 71 

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 fertilizers. 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 fertilizers. 

(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: Fertilizer. 

USDA is requesting that manufacturers 

of these qualifying biobased products 

provide information on 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 

fertilizer product and which product 

should be afforded the preference in 

purchasing. 

Note to paragraph (d): Fertilizers within 

this designated item can be made with 

recycled materials. Under the Resource 

Conservation and Recovery Act of 1976, 

section 6002, the U.S. Environmental 

Protection Agency designated fertilizers 

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 247.15. EPA provides recovered 

materials content recommendations for 

fertilizers in the Recovered Materials 

Advisory Notice (RMAN) published for these 

products. 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. 

§ 2902.23 Sorbents. 

(a) Definition. Materials formulated 

for use in the cleanup and 


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bioremediation of oil and chemical 

spills, the disposal of liquid materials, 

or the prevention of leakage or leaching 

in maintenance applications, shop 

floors, and fuel storage areas. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a biobased content of at least 89 

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 sorbents. 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 sorbents. 

(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: Sorbents. 

USDA is requesting that manufacturers 

of these qualifying biobased products 

provide information on 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 

sorbents and which product should be 

afforded the preference in purchasing. 

Note to paragraph (d): Sorbents within this 

designated item can be made with recycled 

materials. Under the Resource Conservation 

and Recovery Act of 1976, section 6002, the 

U.S. Environmental Protection Agency 

designated sorbents 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 247.17. EPA provides recovered 

materials content recommendations for 

sorbents in the Recovered Materials Advisory 

Notice (RMAN) published for these products. 

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. 

§ 2902.24 Graffiti and grease removers. 

(a) Definition. Industrial solvent 

products formulated to remove 

automotive, industrial, or kitchen soils 

and oils, including grease, paint, and 

other coatings, from hard surfaces. 

(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. If the finished product 

is to be diluted before use, the biobased 

content of the remover 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 graffiti and grease removers. 

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 graffiti and grease removers. 

Dated: May 2, 2008. 

Harry Baumes, 

Associate Director, Office of Energy Policy 

and New Uses, U.S. Department of 

Agriculture. 

[FR Doc. E8–10107 Filed 5–13–08; 8:45 am] 

BILLING CODE 3410–GL–P 


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