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Rules and Regulations Federal Register

20281 

Vol. 77, No. 65 

Wednesday, April 4, 2012 

DEPARTMENT OF AGRICULTURE 

Office of Procurement and Property 

Management 

7 CFR Part 3201 

RIN 0599–AA14 

Designation of Product Categories for 

Federal Procurement 

AGENCY: Office of Procurement and 

Property Management, USDA. 

ACTION: Final rule. 

SUMMARY: In compliance with the 

February 21, 2012 Presidential 

Memorandum ‘‘Driving Innovation and 

Creating Jobs In Rural America through 

Biobased and Sustainable Product 

Procurement,’’ the U.S. Department of 

Agriculture (USDA) is amending the 

Guidelines for Designating Biobased 

Products for Federal Procurement, to 

add 13 sections to designate product 

categories within which biobased 

products will be afforded Federal 

procurement preference, as provided for 

under section 9002 of the Farm Security 

and Rural Investment Act of 2002, as 

amended by the Food, Conservation, 

and Energy Act of 2008 (referred to in 

this document as ‘‘section 9002’’). 

USDA is also establishing minimum 

biobased contents for each of these 

product categories. 

DATES: This rule is effective May 4, 

2012. 

FOR FURTHER INFORMATION CONTACT: Ron 

Buckhalt, USDA, Office of Procurement 

and Property Management, Room 361, 

Reporters Building, 300 7th St. SW., 

Washington, DC 20024; email: 

biopreferred@usda.gov; phone (202) 

205–4008. Information regarding the 

Federal biobased preferred procurement 

program (one part of the BioPreferred 

Program) is available on the Internet at 

http://www.biopreferred.gov. 

SUPPLEMENTARY INFORMATION: The 

information presented in this preamble 

is organized as follows: 

I. Authority 

II. Background 

III. Summary of Changes 

IV. Discussion of Public Comments 

V. Regulatory Information 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory 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. E-Government Act 

K. Congressional Review Act 

I. Authority 

These product categories are 

designated under the authority of 

section 9002 of the Farm Security and 

Rural Investment Act of 2002 (FSRIA), 

as amended by the Food, Conservation, 

and Energy Act of 2008 (FCEA), 7 U.S.C. 

8102 (referred to in this document as 

‘‘section 9002’’). 

II. Background 

As part of the BioPreferred Program, 

USDA published, on September 14, 

2011, a proposed rule in the Federal 

Register (FR) for the purpose of 

designating a total of 13 product 

categories for the preferred procurement 

of biobased products by Federal 

agencies (referred to hereafter in this 

final rule as the ‘‘preferred procurement 

program’’). The proposed rule can be 

found at 76 FR 56884. This rulemaking 

is referred to in this preamble as Round 

8 (RIN 0599–AA14). 

In the proposed rule, USDA proposed 

designating the following 13 product 

categories for the preferred procurement 

program: Air fresheners and 

deodorizers; asphalt and tar removers; 

asphalt restorers; blast media; candles 

and wax melts; electronic components 

cleaners; floor coverings (non-carpet); 

foot care products; furniture cleaners 

and protectors; inks; packaging and 

insulating materials; pneumatic 

equipment lubricants; and wood and 

concrete stains. 

Today’s final rule designates the 

proposed product categories within 

which biobased products will be 

afforded Federal procurement 

preference. USDA has determined that 

each of the product categories being 

designated under today’s rulemaking 

meets the necessary statutory 

requirements; that they are being 

produced with biobased products; and 

that their procurement will carry out the 

following objectives of section 9002: To 

improve demand for biobased products; 

to spur development of the industrial 

base through value-added agricultural 

processing and manufacturing in rural 

communities; and to enhance the 

Nation’s energy security by substituting 

biobased products for products derived 

from imported oil and natural gas. 

When USDA designates by 

rulemaking a product category 

(a generic grouping of products) for 

preferred procurement under the 

BioPreferred Program, manufacturers of 

all products under the umbrella of that 

product category, 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 product category and must 

contain at least the minimum biobased 

content established for the designated 

item. With the designation of these 

specific product categories, USDA 

invites the manufacturers and vendors 

of qualifying products to provide 

information on the product, contacts, 

and performance testing for posting 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 product category. Once 

USDA designates a product category, 

procuring agencies are required 

generally to purchase biobased products 

within the designated product category 

where the purchase price of the 

procurement product exceeds $10,000 

or where the quantity of such products 

or of functionally equivalent products 

purchased over the preceding fiscal year 

equaled $10,000 or more. 

Subcategorization. Within today’s 

final rule, USDA has subcategorized one 

of the product categories. That product 


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category is inks and the subcategories 

are: Specialty inks used to add extra 

characteristics or features to printed 

material; inks used for coated paper, 

paperboard, plastic, and foil (sheetfed— 

color and sheetfed—black); inks used in 

photocopying and laser machines 

(printer toner—<25 pages per minute 

(ppm) and printer toner—≥25 ppm); and 

inks used primarily in newsprint 

(news). 

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. Because the 

submission of product samples for 

biobased content testing is on a strictly 

voluntary basis, USDA was able to 

obtain samples only from those 

manufacturers who volunteered to 

invest the resources required to submit 

the samples. In today’s final rule, the 

minimum biobased contents for the 

‘‘inks (printer toner—≥25 ppm)’’ and the 

‘‘inks (news)’’ subcategories of the inks 

product category are based on a single 

tested product within each subcategory. 

Based on discussions with industry 

stakeholders, USDA believes that the 

tested products are representative of 

other products within the subcategories. 

Given that only one manufacturer of 

products within each subcategory 

supplied a sample for testing, USDA 

believes it is reasonable to set minimum 

biobased contents for these 

subcategories based on the single data 

point for each subcategory. USDA will 

continue to solicit information on these 

subcategories and if additional data on 

the biobased contents for products 

within these designated product 

subcategories is obtained, USDA will 

evaluate whether the minimum 

biobased content should be revised. 

Overlap with EPA’s Comprehensive 

Procurement Guideline program for 

recovered content products under the 

Resource Conservation and Recovery 

Act (RCRA) Section 6002. This final rule 

designates three product categories for 

Federal preferred procurement for 

which there may be overlap with an 

EPA-designated recovered content 

product. The first is blast media, which 

may overlap with the EPA-designated 

recovered content product 

‘‘Miscellaneous products—blasting 

grit.’’ The second is floor coverings 

(non-carpet), which may overlap with 

the EPA-designated recovered content 

product ‘‘Floor tiles.’’ The third is 

pneumatic equipment lubricants, which 

may overlap with the EPA-designated 

recovered content product ‘‘Re-refined 

lubricating oils.’’ EPA provides 

recovered materials content 

recommendations for these recovered 

content products in Recovered Materials 

Advisory Notice (RMAN) I. The RMAN 

recommendations for 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. 

Federal Government Purchase of 

Sustainable Products. The Federal 

government’s sustainable purchasing 

program includes the following three 

statutory preference programs for 

designated products: The BioPreferred 

Program, the Environmental Protection 

Agency’s Comprehensive Procurement 

Guideline for products containing 

recovered materials, and the 

Environmentally Preferable Purchasing 

program. The Office of the Federal 

Environmental Executive (OFEE) and 

the Office of Management and Budget 

(OMB) encourage agencies to implement 

these components comprehensively 

when purchasing products and services. 

Other Preferred Procurement 

Programs. Federal procurement officials 

should also note that biobased products 

may be available for purchase by 

Federal agencies through the AbilityOne 

Program (formerly known as the JavitsWagner-O’Day (JWOD) program). Under 

this program, members of organizations 

including the National Industries for the 

Blind (NIB) and the National Institute 

for the Severely Handicapped (NISH) 

offer products and services for preferred 

procurement by Federal agencies. A 

search of the AbilityOne Program’s 

online catalog (www.abilityone.gov) 

indicated that four of the items being 

designated today (air fresheners and 

deodorizers, blast media, floor 

coverings, and inks (printer toner—<25 

ppm)) are available through the 

AbilityOne Program. While there is no 

specific product within these product 

categories identified in the AbilityOne 

online catalog as being a biobased 

product, it is possible that such 

biobased products are available or will 

be available in the future. Also, because 

additional categories of products are 

frequently added to the AbilityOne 

Program, it is possible that biobased 

products within other product 

categories being designated today may 

be available through the AbilityOne 

Program in the future. Procurement of 

biobased products through the 

AbilityOne Program would further the 

objectives of both the AbilityOne 

Program and the preferred procurement 

program. 

Outreach. To augment its own 

research, USDA consults with industry 

and Federal stakeholders to the 

preferred procurement program during 

the development of the rulemaking 

packages for the designation of product 

categories. USDA requests stakeholder 

input in gathering information used in 

determining the order of product 

category designation and in identifying: 

Manufacturers producing and marketing 

products that fall within a product 

category proposed for designation; 

performance standards used by Federal 

agencies evaluating products to be 

procured; and warranty information 

used by manufacturers of end user 

equipment and other products with 

regard to biobased products. 

Future Designations. In making future 

designations, USDA will continue to 

conduct market searches to identify 

manufacturers of biobased products 

within product categories. USDA will 

then contact the identified 

manufacturers to solicit samples of their 

products for voluntary submission for 

biobased content testing. Based on these 

results, USDA will then propose new 

product categories for designation for 

preferred procurement. 

USDA has developed a preliminary 

list of product categories for future 

designation and has posted this 

preliminary list on the BioPreferred 

Web site. While this list presents an 

initial prioritization of product 

categories for designation, USDA cannot 

identify with certainty which product 

categories will be presented in each of 

the future rulemakings. In response to 

comments from other Federal agencies, 

USDA intends to give increased priority 

to those product categories that contain 

the highest biobased content. In 

addition, as the program matures, 

manufacturers of biobased products 

within some industry segments have 

become more responsive to USDA’s 

requests for technical information than 

those in other segments. Thus, product 

categories with high biobased content 

and for which sufficient technical 

information can be obtained quickly 

may be added or moved up on the 

prioritization list. 

III. Summary of Changes 

As a result of the public comments 

received on the proposed rule, USDA 

has made changes in finalizing the 

proposed rule. These changes are 

summarized in the remainder of this 

section. A summary of each comment 

received, and USDA’s response to the 

comment, is presented in section IV. 

In the final rule, USDA has changed 

the name of one product category being 

designated. That product category was 

proposed as ‘‘packaging and insulating 

materials,’’ but is being changed in the 

final rule to ‘‘packing and insulating 

materials.’’ After the proposed rule was 

published, USDA learned of a potential 


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issue involving the name and 

description of the proposed product 

category. It was USDA’s intent that the 

product category would include ‘‘preformed or molded materials used to 

hold package contents in place during 

shipping’’ (76 FR 56894, September 14, 

2011). As an example of the types of 

products intended to be included in the 

proposed category, USDA referred to the 

foam ‘‘peanuts’’ that are used to protect 

and prevent the movement of products 

that are placed in cardboard or other 

types of containers for shipment. It was 

not USDA’s intent that the product 

category would include the outside 

container (e.g., the cardboard box) into 

which the ‘‘peanuts’’ or molded foam 

packing materials are placed. USDA has 

concluded that the term ‘‘packaging’’ is 

too broad for the purpose of defining the 

product category and is likely to be 

interpreted as including the outside box 

or container into which ‘‘packing’’ 

material is placed. For this reason, 

USDA is finalizing the product category 

with the name ‘‘packing and insulating 

materials.’’ 

In addition to revising the name of the 

proposed product category to ‘‘packing 

and insulating materials,’’ USDA has 

lowered the minimum biobased content 

for this product category to 74 percent. 

At proposal, the recommended 

minimum biobased content was 82 

percent and was based on a product 

with a tested biobased content of 85 

percent. After the proposed rule was 

published, the manufacturer of this 

particular product re-tested the biobased 

content of the product as part of the 

application process to obtain 

certification to use the USDA Certified 

Biobased Product label. The results of 

the re-test showed a biobased content of 

77 percent. USDA does not have any 

additional information to indicate 

which of the testing results (85 percent 

biobased or 77 percent biobased) are 

more accurate. Because of this 

uncertainty, and because the difference 

between the two values is not large, 

USDA decided that it was reasonable to 

use the lower tested value to establish 

the minimum biobased content in the 

final rule. Therefore, the minimum 

biobased content for the ‘‘packing and 

insulating materials’’ product category 

in the final rule is 74 percent (the 77 

percent tested value minus 3 percentage 

points to account for variability in the 

testing procedure). 

USDA has also revised the minimum 

biobased content for the ‘‘furniture 

cleaners and protectors’’ product 

category from the proposed level of 77 

percent to 71 percent in the final rule. 

At the time the proposed minimum 

biobased content for this product 

category was established, USDA had test 

data on six products. The biobased 

content of these six furniture cleaners 

and protectors ranged from 9 percent to 

100 percent, as follows: 9, 28, 80, 91, 98, 

and 100 percent. As explained in the 

preamble to the proposed rule (76 FR 

56897), USDA decided to set the 

minimum biobased content for the 

product category at 77 percent, based on 

the product with the tested biobased 

content of 80 percent. 

After the proposed rule was 

published, USDA received biobased 

content data on an additional product 

within this product category. The 

biobased content of this product is 74 

percent, which is 6 percentage points 

lower than the product originally 

selected as the basis for the minimum 

biobased content. With the new data 

point included, the data fall into two 

obvious groups, with a significant gap 

between them. The two lowest data 

points are 9 and 28 percent and the five 

highest data points are 74, 80, 91, 98, 

and 100 percent. USDA believes it is 

reasonable to set the minimum biobased 

content in the final rule based on the 

product with the 74 percent biobased 

content. Therefore, the minimum 

biobased content for the ‘‘furniture 

cleaners and protectors’’ product 

category in the final rule is 71 percent 

(the 74 percent tested value minus 3 

percentage points to account for 

variability in the testing procedure). As 

is the case for all product categories, 

USDA will continue to gather and 

consider new biobased content testing 

data. When found to be necessary, 

USDA will revise the minimum 

biobased content of product categories 

through established notice and 

comment rulemaking procedures. 

IV. Discussion of Public Comments 

USDA solicited comments on the 

proposed rule for 60 days ending on 

November 14, 2011. USDA received 

eight comments by that date. Four of the 

comments were from individual 

citizens, two were from trade groups, 

one was from a biobased product 

manufacturer, and one was from a 

Federal agency commenter. The 

comments are presented below, along 

with USDA’s response, and are grouped 

by the product categories to which they 

apply. 

Blast Media 

Comment: One trade group 

commenter recommended that USDA 

reconsider designating the blast media 

product category for Federal 

procurement. The commenter stated 

that they do not believe that biobased 

abrasives are always the best choice 

when selecting an environmentally 

friendly abrasive because of 

performance limitations that can cause 

decreased coating life expectancies. The 

commenter explained that the selection 

of an abrasive for a particular project is 

based on a life cycle assessment that 

includes an examination of the 

economic and environmental health and 

safety impacts. The commenter 

presented information on the properties 

of an abrasive that must be considered, 

including the shape, hardness, 

durability, density, and size of the 

abrasive. The commenter also presented 

information on the relationship between 

these properties of the abrasive and the 

surface profile that is created on the 

substrate when a variety of abrasive 

materials are used. The commenter 

stated that The Society for Protective 

Coatings recommends biobased 

abrasives for removing single layers of 

paint, fine scale and other surface 

contaminants when there is no technical 

need to alter the metal substrate. The 

commenter further stated that when it is 

necessary to meet a surface preparation 

standard to remove multiple layers of 

paint and produce an acceptable surface 

profile for optimal coating adhesion, 

harder abrasives need to be specified. 

According to the commenter, biobased 

abrasives are environmentally friendly, 

but are well below the minimum 

hardness value needed to achieve an 

acceptable surface profile for protecting 

industrial structures and typically are 

not reusable. The commenter concluded 

by saying that using biobased abrasives 

in lieu of standard abrasives will result 

in coating system failure or, at best, will 

significantly reduce the overall life 

expectancy and sustainability of the 

coating due to poor surface profile and 

coating adhesion. 

Response: USDA agrees with the 

commenter’s general position that 

traditional abrasives are needed in many 

applications. The commenter mentions 

industrial structures and the U.S. Navy 

fleet as examples of applications where, 

according to the commenter, biobased 

blast media will not meet surface 

coating specifications and performance 

requirements. USDA recognizes that 

blast media is a product category with 

wide-ranging performance demands, 

depending on the type and end use of 

the substrate to which the blast media 

is being applied. USDA points out that 

the intent of designating biobased blast 

media for Federal procurement 

preference is not to eliminate the use of 

traditional blast media in cases such as 

those mentioned by the commenter. The 

intent of the designation is, rather, to 

require that Federal agencies give 


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preference to biobased blast media in 

those cases where such blast media 

meet the agency’s performance 

requirements as well as availability and 

cost considerations. USDA recognizes 

that performance is the key factor in 

making purchasing decisions among the 

various types of products within most 

product categories. However, USDA 

believes that many situations exist 

where blast media are used to clean or 

prepare substrates that are less durable 

than structural steel. In many of these 

applications, biobased blast media may 

perform better than the more abrasive 

metallic types of media described by the 

commenter. Thus, USDA believes that 

the designation of biobased blast media 

is consistent with the goals and 

objectives of the BioPreferred program 

and has finalized the designation in 

today’s rulemaking. 

Floor Coverings (Non-Carpet) 

Comment: One biobased product 

manufacturer requested that their 

product be added as a subcategory 

under the floor coverings product 

category. The commenter explained that 

their product is manufactured using an 

innovative thermal technology that 

results in wood that has many 

advantages over traditional chemically 

treated wood. The commenter stated 

that their product can be used in any 

flooring application and is non-toxic, 

dimensionally stable, and has a 30-year 

warranty against rot. The commenter 

also stated that their product is 

environmentally preferable to most 

other wood products because it is 

manufactured without the use of toxic 

chemicals and is a 100 percent biobased 

product. 

Response: USDA agrees with the 

commenter that their product has many 

beneficial attributes. USDA also believes 

that, in some cases, this manufacturer’s 

product may be a very desirable option 

for use as a floor covering. However, 

USDA does not believe that the creation 

of a separate subcategory under the floor 

covering (non-carpet) product category 

is justified. 

As explained in the preamble to the 

proposed rule, USDA intends to 

establish subcategories based on the 

existence of ‘‘groups’’ of products with 

different performance requirements or 

different functional uses. In the case of 

floor coverings, USDA did not identify 

specific performance requirements that 

the commenter’s product could meet 

that could not be met by one or more of 

the other available biobased products. 

Another consideration for establishing 

subcategories is the presence of a 

product or group of products with some 

unique desirable characteristics not 

found in the other products and whose 

biobased content differs considerably 

from other products in the category. The 

91 percent minimum biobased content 

that has been established for the product 

category is sufficiently high that USDA 

does not believe it is reasonable to 

create a subcategory based on biobased 

content differences. The 91 percent 

minimum biobased content ensures that 

products that qualify for the 

procurement preference are truly 

legitimate biobased products with only 

minimal non-biobased ingredients. 

In summary, USDA believes that the 

floor covering (non-carpet) product 

category is defined such that Federal 

agencies may select from several 

different biobased alternative products. 

The decision on which biobased 

products to purchase will be based on 

a range of factors including durability, 

appearance, required maintenance, and 

cost. While the commenter’s product 

may be a very competitive product 

within the floor covering category, 

USDA does not believe that creating a 

separate subcategory for it is justified. 

Inks 

Comment: Four commenters stated 

that they supported USDA efforts to 

encourage the use of biobased printing 

inks and toners. The commenters stated 

that the use of such products will 

increase the demand for agricultural 

products grown domestically, decrease 

our dependence on foreign oil, 

positively affect the U.S. economy, and 

protect our environment for future 

generations of Americans. 

Response: USDA agrees with the 

commenters and thanks them for their 

support of the BioPreferred program. 

Comment: One commenter 

representing a coalition of trade groups 

stated that USDA needs to withdraw the 

proposed designation of the inks 

product category and conduct a more 

detailed and thorough review to insure 

that the correct biobased contents for 

inks are recommended, as several 

critical elements in the review are 

deficient. The commenter stated that 

USDA has not completed a thorough 

investigation into existing Federal 

requirements and industry standards for 

biobased printing inks. In addition, the 

commenter stated that USDA has set 

limits without a complete 

understanding of the technical issues 

associated with biobased content in 

different types of printing inks. The 

commenter stated that another concern 

not adequately addressed is the 

financial and performance implications 

of requiring the use of inks with high 

biobased content. The commenter 

recommends that USDA become 

familiar with the existing regulation that 

sets minimum standards for biobased 

materials in printing inks used in 

government agencies. The commenter 

stated that this regulation, the Vegetable 

Ink Printing Act of 1994, requires that 

Federal agencies use lithographic inks 

with a specified vegetable oil content. 

The commenter also stated that USDA 

should look to existing industry 

standards for inks with biobased 

material content. The commenter noted 

that one such program is SoySeal, 

developed by the American Soybean 

Association (ASA), which has set 

minimum soy oil contents for a variety 

of different classes of inks. The 

commenter stated that ASA set these 

standards based on their research on 

incorporating soy oil into various types 

of printing inks, their unique properties, 

and testing of the formulations. The 

percentages are expressed as the 

percentage of soy oil out of the total 

formula weight of the inks. 

The commenter supports the total 

formula weight approach taken by the 

SoySeal program and recommends that 

USDA also adopt this approach. The 

commenter stated that the approach 

taken by SoySeal to define soy content 

limits by weight percent is readily 

understood in the industry and should 

be adopted by USDA. The commenter 

stated that this method allows for 

straightforward determination of soy or 

biobased content, based on ink 

formulation knowledge, instead of 

requiring expensive testing using the 

ASTM D6866 standard. The commenter 

stated that the ASTM test method can 

only be conducted by one lab and costs 

$600 per sample. The commenter stated 

that USDA did not specify in its 

proposal how the sampling for the test 

is to be conducted. According to the 

commenter, it is not clear if a 

representative formulation can be tested 

or if each color of each ink is to be 

tested and, since there are literally 

thousands of possible ink formulations, 

testing each and every ink is 

economically infeasible. The commenter 

stated that using a total ink formulation 

approach certified by the ink 

manufacturer provides a much more 

economical approach. Also, according 

to the commenter, it is unclear how the 

biobased content guidelines set by 

USDA compare to those set by the 

SoySeal program because the two 

systems (percent weight versus percent 

of carbonaceous material that is 

biobased) are not easily comparable. 

The commenter asked, for example, if a 

black news ink contains 40 percent 

biobased material by weight, would it 

meet USDA’s recommendations if tested 

by the ASTM standard? The commenter 


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Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Rules and Regulations 20285 

stated that, ideally, USDA’s biobased 

content recommendations should mirror 

those recommended by the SoySeal 

program, as inks with these soy oil 

contents have been tested and proven to 

be effective. 

The commenter explained that while 

the proposed offset ink limits may be 

achievable for four color process inks 

(i.e., cyan, yellow, magenta, and black), 

the limits will certainly have a negative 

impact on various blending systems 

used. According to the commenter, 

many printing inks are specially 

blended to make unique colors, often 

referred to as ‘‘spot colors’’ or by the 

trade name ‘‘Pantone Matching 

System,’’ which are required to match 

exact colors. The commenter stated that 

the limits set have the potential to 

impact these inks, as well as Ultraviolet, 

Electron Beam, and many metallic and 

florescent inks that have unique 

properties that may require higher nonbiobased content. 

The commenter also stated that the 

category of specialty inks used in the 

study is far too vaguely defined and the 

examples given are too diverse to be 

listed together. In addition, according to 

the commenter, the imposition of a level 

of 66 percent biobased material is 

extremely demanding for some of these 

applications. For example, a typical 

scratch and sniff ink might contain 20 

percent of encapsulated fragrance, none 

of which is biobased. This only leaves 

room for 14 percent of other nonbiobased materials such as pigment, 

binders and additives. The commenter 

stated that these materials, many of 

which are carbonaceous, cannot be 

substituted for biobased materials and 

their presence in these inks will make 

it nearly impossible to meet the 66 

percent biobased content proposed in 

this program. 

The commenter stated that, for toner 

ink systems, biobased toners are not 

commonly available in the U.S. market. 

Currently, biobased xerographic inks 

make up less than 1 percent of the U.S. 

market, and are not available for 

xerographic colored inks. 

The commenter also stated that, in 

terms of cost and performance, it must 

be recognized that there are significant 

issues associated with high levels of 

biobased materials in printing inks. 

According to the commenter, these 

types of ink are almost always 

significantly more expensive than their 

non-biobased alternatives and, even 

with the current high costs of 

petroleum-based oils, soy oil still 

commands close to a 50 percent 

premium. In addition, the commenter 

stated that it is common knowledge 

within the graphic arts community that 

biobased often results inferior technical 

performance [color reproduction] and 

reduced press speeds to allow for longer 

drying times. The commenter explained 

that solvent based inks cannot be easily 

replaced with bio-derived oils because 

the oils do not volatilize quickly 

enough. 

The commenter stated that there is no 

indication that an assessment of the cost 

difference between conventional and 

biobased inks was completed and that, 

in order to create biobased purchasing 

preferences, USDA needs to quantify the 

environmental benefit of using a 

biobased ink and assure that it is cost 

effective. 

The commenter stated that many of 

the underlying assumptions used by 

USDA to determine the specific limits 

and ink types in the proposal are not 

transparent or justified. The commenter 

asked, as an example, of the 148 

biobased inks identified by USDA, how 

was a sample size of 19 selected to be 

tested for biobased content by the 

ASTM standard? Also, of the biobased 

inks identified, how was a sample size 

of 3 to be analyzed by BEES 

determined? The commenter stated that, 

given the large number of inks that are 

on the market, it is not clear how USDA 

concluded that its work was 

representative or statistically significant. 

The commenter stated that they do not 

believe that these sample sizes are large 

enough to show significant findings. 

The commenter also stated that it is 

unclear if the sampling was random, as 

should be the case, or if the inks tested 

were considered to be state-of-the-art 

biobased inks. According to the 

commenter, one of the difficulties in 

interpreting the results of the study was 

that the units used to complete the 

BEES assessment were unclear, as the 

sample size was identified as 300 square 

inches, but not if those 300 square 

inches were actual ink, or if it was 300 

square inches of printed material. 

Another concern expressed by the 

commenter is the use of the Building for 

Environmental and Economic 

Sustainability (BEES) model for testing 

the environmental impact of printing 

ink. The commenter stated that USDA 

does not indicate how a software 

program designed to assess the impact 

of building materials is applicable to an 

industrial/consumer commodity such as 

ink. The commenter also stated that the 

study doesn’t indicate that a comparison 

of the BEES impact of conventional and 

biobased inks was conducted and that 

while it is assumed that a material with 

more biobased content would be better, 

this needs to actually be confirmed. 

The commenter provided a summary 

of recommendations on the proposed 

biobased designations for inks, as 

follows: 

1. Refine the categories to better cover 

the various types of printing inks used 

from a broad perspective such as 

process and spot or inks as well as 

specific applications such as heatset 

web offset lithographic, gravure (water & 

solvent), and flexographic (water & 

solvent). Energy curable (ultraviolet and 

electron beam), water-based and inkjet 

inks should have their own, separate 

categories. 

2. Refine the specialty ink category. 

The current Specialty ink category is 

much too broad to be able to assign a 

biobased content across the board. 

While some specialty inks could be 

formulated to contain the 66 percent, 

many others cannot. 

3. Utilize the SoySeal limits as the 

basis for the biobased content 

guidelines. 

4. Revise the standards to indicate the 

total portion of the ink that is biobased, 

rather than the total carbonaceous 

portion of the ink that is biobased. This 

will allow for more cost effective 

determination of biobased content based 

on ink formulation information, and is 

already the accepted standard for 

comparing biobased content in printing 

inks. 

5. Allow for the ink manufacturer to 

certify the biobased content based on 

formulation and not testing using the 

ASTM D6866 test. 

6. Biobased inks, as proposed, should 

be evaluated to determine if they can 

meet basic performance standards and 

be required to meet the same 

performance standards as conventional 

inks. Manufacturers should not be given 

the opportunity to gain a market 

advantage based on production of inks 

with high biobased content but a poor 

image quality. 

7. Conduct a true economic impact 

analysis comparing the costs of the 

proposed biobased materials as 

compared to conventional materials. 

8. To better understand the life-cycle 

cost section, identify the ‘‘usage unit’’ 

for which price is specified. 

9. To better understand the BEES 

results, a functional unit of 300 square 

inches was identified. Please clarify if 

this is 300 square inches of ink, or 300 

square inches of printed material. 

Response: USDA appreciates the 

interest and concerns expressed by the 

commenter in the inks product category. 

Unfortunately, many of the comments 

and recommendations made by the 

commenter would require USDA to 

conduct studies and analyses that are 

beyond the scope of the BioPreferred 

program’s mandate to designate product 

categories for federal procurement 


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preference. Under section 9002, USDA 

is directed to request from biobased 

product manufacturers the technical 

information that is used in the 

designation process, but is not given the 

authority to require that such 

information be supplied. Thus, USDA 

must rely on the voluntary submittal of 

technical information from product 

manufacturers. During the development 

of the proposed rule, USDA requested 

information from many soy ink 

manufacturers but received information 

from only a few. USDA developed the 

proposed rule based on the information 

available from those biobased ink 

manufacturers who chose to voluntarily 

supply it. Generally, the procedures 

employed, and the types and level of 

detail of the analyses performed, for the 

inks product category were the same as 

for the more than 60 product categories 

designated to date. USDA will, however, 

welcome the opportunity to meet with 

this commenter and any other 

representatives of the inks product 

category to discuss ways in which 

today’s final rule can be improved. 

With regard to the commenter’s points 

dealing with the Vegetable Ink Printing 

Act, USDA recognizes that many federal 

agencies’ printing operations are 

covered by this Act. USDA points out 

that the designation of biobased 

products under section 9002 is not 

meant to replace or revise the 

requirements of the Vegetable Ink 

Printing Act. Instead, the designation 

under section 9002 is meant to extend 

the use of biobased printing inks to 

those printing operations that are not 

subject to the Vegetable Ink Printing 

Act. Under today’s final rule, such 

printing operations must be performed 

using complying biobased inks to the 

extent that biobased inks meeting the 

performance and cost criteria are 

available. 

The commenter also presented 

numerous points regarding the 

methodology used to determine 

biobased content and the levels set as 

the minimum biobased contents in the 

proposed rule. USDA acknowledges that 

the biobased content determined by 

ASTM D6866 does not directly compare 

to soy content determinations using the 

SoySeal procedure. However, the use of 

ASTM D6866 to determine biobased 

content has been consistently required 

for all designated product categories and 

USDA believes it is appropriate for the 

inks product category as well. As 

pointed out by the commenter, inks are 

typically formulated from solvents, 

pigments, binders, and other additives. 

USDA believes that using ASTM D6866 

to determine the biobased content of 

inks will encourage the development of 

biobased versions of each type of 

ingredient in the ink. As for the number 

of inks tested for biobased content and 

the resulting proposed minimum 

biobased contents, USDA relied on its 

standard methodology of requesting that 

manufacturers submit samples for 

testing and then evaluating the results of 

the testing to determine the proposed 

minimum biobased content (see 

‘‘Minimum Biobased Contents’’ 

discussion in the proposal preamble at 

76 FR 56885). Additional information 

regarding the biobased content testing 

can also be found in the preamble to 

proposed rule at 76 FR 56896. USDA 

also notes that the BioPreferred program 

Guidelines (7 CFR 3201.7) allows that 

‘‘products that are essentially the same 

formulation’’ need not be tested 

individually. 

The commenter offered 

recommendations as to how USDA 

should redefine the inks subcategories 

in the final rule. USDA developed the 

proposed inks subcategories based on 

discussions with, and information 

provided by, ink manufacturers. There 

are, no doubt, many approaches that 

could be taken in subcategorizing the 

inks product category. USDA believes 

that the proposed subcategories will be 

sufficient for the initial efforts to 

designate the inks product category. 

USDA notes that the final rule does not 

take effect for one year after the 

publication date and, as mentioned 

above, welcomes the opportunity to 

meet with the commenter and others to 

discuss revising, refining, or expanding 

the subcategories at the earliest 

opportunity. Once a consensus has been 

reached between USDA and 

participating industry representatives, 

USDA will develop a rulemaking 

package to propose changes to the 

subcategories, if needed. 

The commenter also questioned the 

performance and cost of available 

biobased inks. USDA recognizes that 

performance and cost are key factors in 

selecting the types of inks used in 

printing/copying operations. As 

discussed in several other responses in 

this preamble, federal agencies are 

required to consider designated 

biobased products but are not required 

to purchase and use them if the 

available products are not capable of 

meeting reasonable performance 

expectations or are not priced 

competitively with non-biobased 

products. Section 9002 is very specific 

regarding these exceptions. However, 

USDA encourages federal agencies to 

explore available biobased products and 

communicate with biobased product 

manufacturers regarding performance 

and cost issues. Reputable biobased 

product manufacturers should be 

willing to work with federal agencies to 

resolve issues and they should also 

recognize that, even with the federal 

procurement preference, they will not 

be successful if their products do not 

perform up to expectations. In response 

to the commenter’s question about the 

BEES functional unit, the 300 square 

inches used for the BEES analyses is 300 

square inches of ink. 

In summary, USDA acknowledges 

that, because of time and budget 

considerations, today’s designation of 

inks is not based on exhaustive studies 

and analyses. USDA also recognizes that 

some elements of the designation rule 

are subject to change as federal agencies 

and biobased ink manufacturers gain a 

better understanding of what is needed 

to substitute biobased inks for 

traditional inks. USDA invites the 

commenter and any other 

representatives of the ink manufacturing 

industry to submit information and to 

meet to discuss in detail future revisions 

that may be needed to the designation 

rule. 

Packaging and Insulating Materials 

Comment: One Federal agency 

commenter expressed concern regarding 

the proposed product category 

‘‘Packaging and Insulating Materials’’ 

and its potential impact on the agency’s 

hazardous waste contracting and 

disposal efforts. Specifically, the 

commenter requested clarification on 

whether the biobased content 

requirements in proposed section 

3201.85, Packaging and Insulating 

Materials, would apply to DOT/UN 

combination shipping packages for 

Hazardous Material/Hazardous Waste 

shipments or whether DOT/UN 

combination shipping packages might 

be excluded. The commenter further 

stated that if the proposed biobased 

requirements were determined to apply 

to such shipping packages, they would 

need to know how the implementation 

would affect such shipping. 

Response: As discussed in section III 

of this preamble, USDA has changed the 

name of this product category in the 

final rule to ‘‘packing and insulating 

materials.’’ However, USDA believes 

that the name change has no bearing on 

the public comment or on the USDA 

response to it. The final rule does not 

provide a specific exemption from the 

requirements of section 3201.85 based 

on the types of material being shipped. 

As proposed, biobased packaging 

(packing) products receive the 

procurement preference regardless of 

the contents to be placed in the 

shipping packages. USDA considered 

the possibility of providing a specific 


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exemption for hazardous material/ 

hazardous waste shipping activities, but 

did not provide such an exemption in 

the final rule. USDA decided that such 

an exemption was not necessary 

considering the language in the 

BioPreferred Program Guidelines. As 

stated in section 3201.3(c) of the 

Guidelines: ‘‘Procuring agencies may 

decide not to procure such products if 

they are not reasonably priced or readily 

available or do not meet specified or 

reasonable performance standards.’’ 

With regard to the commenter’s 

concerns related to the shipping of 

hazardous material/hazardous waste, 

the DOT requirements for the packaging 

of such materials are spelled out in 49 

CFR part 178. The burden to perform 

testing to demonstrate that their 

products are capable of meeting the 

requirements of part 178 fall on those 

biobased packaging material 

manufacturers who wish to sell their 

products to the Federal government. 

Only if such a demonstration of 

acceptable performance can be made are 

Federal agencies obligated to give a 

procurement preference to those 

products and, even then, only if they are 

available at reasonable costs. USDA 

believes that with these provisions 

already in the BioPreferred Program 

Guidelines, the specific exemption 

requested by the commenter is 

unnecessary. If acceptable biobased 

packing materials are available, they 

should be given preference. However, if 

the biobased alternatives are not 

acceptable (in terms of performance, 

availability, and cost), the agency may 

continue to use the packing materials 

currently in use. Thus, USDA is 

finalizing the designation of ‘‘packing 

and insulating materials’’ without any 

specific exemptions. 

V. Regulatory Information 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Executive Order 12866, as 

supplemented by Executive Order 

13563, requires agencies to determine 

whether a regulatory action is 

‘‘significant.’’ The Order defines a 

‘‘significant regulatory action’’ as one 

that is likely to result in a rule that may: 

‘‘(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect, in a material way, the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; (2) Create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency; (3) Materially alter the 

budgetary impact of entitlements, 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) Raise novel legal or policy 

issues arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in this Executive Order.’’ 

Today’s final rule has been 

determined by the Office of 

Management and Budget to be not 

significant for purposes of Executive 

Order 12866. We are not able to quantify 

the annual economic effect associated 

with today’s final rule. As discussed in 

the preamble to the proposed 

rulemaking, USDA made extensive 

efforts to obtain information on the 

Federal agencies’ usage within the 13 

designated product categories, including 

their subcategories. These efforts were 

largely unsuccessful. Therefore, 

attempts to determine the economic 

impacts of today’s final 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 biobased 

products within designated product 

categories if price is ‘‘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 

today’s final rule. Consideration was 

also given to the fact that agencies may 

choose not to procure designated items 

due to unreasonable price. 

1. Summary of Impacts 

Today’s final rule is expected to have 

both positive and negative impacts to 

individual businesses, including small 

businesses. USDA anticipates that the 

biobased preferred procurement 

program will provide additional 

opportunities for businesses and 

manufacturers to begin supplying 

products under the designated biobased 

product categories 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 today’s final rule. 

The final 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, availability and/or price of 

biobased products acceptable is 

unknown, it is impossible to quantify 

the actual economic effect of the rule. 

2. Benefits of the Final Rule 

The designation of these 13 product 

categories 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, and to spur development of 

the industrial base through value-added 

agricultural processing and 

manufacturing in rural communities. On 

a national and regional level, today’s 

final rule can result in expanding and 

strengthening markets for biobased 

materials used in these product 

categories. 

3. Costs of the Final Rule 

Like the benefits, the costs of today’s 

final 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. Pre-award procurement costs for 

Federal agencies may rise minimally as 

the contracting officials conduct market 

research to evaluate the performance, 

availability and price reasonableness of 

preferred products before making a 

purchase. 

B. Regulatory Flexibility Act (RFA) 

The RFA, 5 U.S.C. 601–602, generally 

requires an agency to prepare a 

regulatory flexibility analysis of any rule 

subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

USDA evaluated the potential impacts 

of its designation of these product 

categories to determine whether its 

actions would have a significant impact 

on a substantial number of small 

entities. Because the preferred 

procurement program established under 

section 9002 applies only to Federal 


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agencies and their contractors, small 

governmental (city, county, etc.) 

agencies are not affected. Thus, the 

proposal, if promulgated, 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 product categories 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. 

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 biobased 

products within the product categories 

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 

manufacturing biobased products 

affected by this rulemaking is not 

expected to be substantial. 

The preferred procurement program 

may decrease opportunities for 

businesses that manufacture or sell nonbiobased products or provide 

components for the manufacturing of 

such products. Most manufacturers of 

non-biobased products within the 

product categories being designated for 

preferred procurement in this rule are 

expected to be included under the 

following NAICS codes: 321918 (other 

millwork, including flooring), 324191 

(petroleum lubricating oil and grease 

manufacturing), 325411 (medicinal and 

botanical manufacturing), 325510 (paint 

and coating manufacturing), 325612 

(polish and other sanitation goods 

manufacturing), 325620 (toilet 

preparation manufacturing), 325910 

(printing ink manufacturing), 325998 

(other miscellaneous chemical products 

and preparation manufacturing), 326150 

(urethane and other foam product 

manufacturing), and 313113 (thread mill 

products). USDA obtained information 

on these 10 NAICS categories from the 

U.S. Census Bureau’s Economic Census 

database. USDA found that the 

Economic Census reports about 6,963 

companies within these 10 NAICS 

categories and that these companies 

own a total of about 8,139 

establishments. Thus, the average 

number of establishments per company 

is about 1.2. The Census data also 

reported that of the 8,139 individual 

establishments, about 8,096 (99.5 

percent) have fewer than 500 

employees. USDA also found that the 

overall average number of employees 

per company among these industries is 

about 42, with none of the segments 

reporting an average of more than 100 

employees per company. Thus, nearly 

all of the businesses fall within the 

Small Business Administration’s 

definition of a small business (fewer 

than 500 employees, in most NAICS 

categories). 

USDA does not have data on the 

potential adverse impacts on 

manufacturers of non-biobased products 

within the product categories being 

designated, but believes that the impact 

will not be significant. Most of the 

product categories being designated in 

this rulemaking are typical consumer 

products widely used by the general 

public and by industrial/commercial 

establishments that are not subject to 

this rulemaking. Thus, USDA believes 

that the number of small businesses 

manufacturing non-biobased products 

within the product categories being 

designated and selling significant 

quantities of those products to 

government agencies affected by this 

rulemaking to be relatively low. Also, 

this final rule will not affect existing 

purchase orders and it will not preclude 

procuring agencies from continuing to 

purchase non-biobased products when 

biobased products do not meet the 

availability, performance, or reasonable 

price criteria. This final rule will also 

not preclude businesses from modifying 

their product lines to meet new 

specifications or solicitation 

requirements for these products 

containing biobased materials. 

After considering the economic 

impacts of this final 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 final 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. 

C. Executive Order 12630: 

Governmental Actions and Interference 

With Constitutionally Protected Property 

Rights 

This final 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 final rule does not have 

sufficient federalism implications to 

warrant the preparation of a Federalism 

Assessment. Provisions of this final 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 final 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 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 final 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 


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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 final rule is 

currently approved under OMB control 

number 0503–0011. 

J. E-Government Act Compliance 

USDA is committed to compliance 

with the E-Government Act, 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 E-Government Act 

compliance related to this rule, please 

contact Ron Buckhalt at (202) 205–4008. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, that includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. USDA has 

submitted a report containing this rule 

and other required information to the 

U.S. Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. 

List of Subjects in 7 CFR Part 3201 

Biobased products, Procurement. 

For the reasons stated in the 

preamble, the Department of Agriculture 

is amending 7 CFR chapter XXXII as 

follows: 

CHAPTER XXXII—OFFICE OF 

PROCUREMENT AND PROPERTY 

MANAGEMENT, DEPARTMENT OF 

AGRICULTURE 

PART 3201—GUIDELINES FOR 

DESIGNATING BIOBASED PRODUCTS 

FOR FEDERAL PROCUREMENT 

■ 1. The authority citation for part 3201 

continues to read as follows: 

Authority: 7 U.S.C. 8102. 

■ 2. Add §§ 3201.75 through 3201.87 to 

subpart B to read as follows: 

Sec. 

3201.75 Air fresheners and deodorizers. 

3201.76 Asphalt and tar removers. 

3201.77 Asphalt restorers. 

3201.78 Blast media. 

3201.79 Candles and wax melts. 

3201.80 Electronic components cleaners. 

3201.81 Floor coverings (non-carpet). 

3201.82 Foot care products. 

3201.83 Furniture cleaners and protectors. 

3201.84 Inks. 

3201.85 Packing and insulating materials. 

3201.86 Pneumatic equipment lubricants. 

3201.87 Wood and concrete stains. 

§ 3201.75 Air fresheners and deodorizers. 

(a) Definition. Products used to 

alleviate the experience of unpleasant 

odors by chemical neutralization, 

absorption, anesthetization, or masking. 

(b) Minimum biobased content. The 

Federal preferred procurement product 

must have a minimum biobased content 

of at least 97 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 April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased air fresheners and 

deodorizers. By that date, Federal 

agencies that have the responsibility for 

drafting or reviewing specifications for 

products to be procured shall ensure 

that the relevant specifications require 

the use of biobased air fresheners and 

deodorizers. 

§ 3201.76 Asphalt and tar removers. 

(a) Definition. Cleaning agents 

designed to remove asphalt or tar from 

equipment, roads, or other surfaces. 

(b) Minimum biobased content. The 

Federal preferred procurement product 

must have a minimum biobased content 

of at least 80 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 April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased asphalt and tar 

removers. By that date, Federal agencies 

that have the responsibility for drafting 

or reviewing specifications for products 

to be procured shall ensure that the 

relevant specifications require the use of 

biobased asphalt and tar removers. 

§ 3201.77 Asphalt restorers. 

(a) Definition. Products designed to 

seal, protect, or restore poured asphalt 

and concrete surfaces. 

(b) Minimum biobased content. The 

Federal preferred procurement product 

must have a minimum biobased content 

of at least 68 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 April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased asphalt restorers. By 

that date, Federal agencies that have the 

responsibility for drafting or reviewing 

specifications for products to be 

procured shall ensure that the relevant 

specifications require the use of 

biobased asphalt restorers. 

§ 3201.78 Blast media. 

(a) Definition. Abrasive particles 

sprayed forcefully to clean, remove 

contaminants, or condition surfaces, 

often preceding coating. 

(b) Minimum biobased content. The 

Federal preferred procurement product 

must have a minimum biobased content 

of at least 94 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 April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased blast media. By that 

date, Federal agencies that have the 

responsibility for drafting or reviewing 

specifications for products to be 

procured shall ensure that the relevant 

specifications require the use of 

biobased blast media. 

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

Qualifying products within this item 

may overlap with the EPA-designated 

recovered content product: 

Miscellaneous products—blasting grit. 

USDA is requesting that manufacturers 

of these qualifying biobased products 

provide information on the USDA 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 

blasting grit products and which 

product should be afforded the 

preference in purchasing. 

Note to paragraph (d): Biobased blast 

media within this designated product 


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20290 Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Rules and Regulations 

category can compete with similar blasting 

grit products with recycled content. Under 

the Resource Conservation and Recovery Act 

of 1976, section 6002, the U.S. 

Environmental Protection Agency designated 

blasting grit products containing recovered 

materials as products 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. 

§ 3201.79 Candles and wax melts. 

(a) Definition. Products composed of a 

solid mass and either an embedded 

wick that is burned to provide light or 

aroma, or that are wickless and melt 

when heated to produce an aroma. 

(b) Minimum biobased content. The 

Federal preferred procurement product 

must have a minimum biobased content 

of at least 88 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 April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased candles and wax 

melts. By that date, Federal agencies 

that have the responsibility for drafting 

or reviewing specifications for products 

to be procured shall ensure that the 

relevant specifications require the use of 

biobased candles and wax melts. 

§ 3201.80 Electronic components 

cleaners. 

(a) Definition. Products that are 

designed to wash or remove dirt or 

extraneous matter from electronic parts, 

devices, circuits, or systems. 

(b) Minimum biobased content. The 

Federal preferred procurement product 

must have a minimum biobased content 

of at least 91 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 April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased electronic 

components cleaners. By that date, 

Federal agencies that have the 

responsibility for drafting or reviewing 

specifications for products to be 

procured shall ensure that the relevant 

specifications require the use of 

biobased electronic components 

cleaners. 

§ 3201.81 Floor coverings (non-carpet). 

(a) Definition. Products, other than 

carpet products, that are designed for 

use as the top layer on a floor. Examples 

are bamboo, hardwood, and cork tiles. 

(b) Minimum biobased content. The 

Federal preferred procurement product 

must have a minimum biobased content 

of at least 91 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 April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased floor coverings 

(non-carpet). By that date, Federal 

agencies that have the responsibility for 

drafting or reviewing specifications for 

products to be procured shall ensure 

that the relevant specifications require 

the use of biobased floor coverings (noncarpet). 

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

Qualifying products within this item 

may overlap with the EPA-designated 

recovered content product: Construction 

Products—floor tiles. USDA is 

requesting that manufacturers of these 

qualifying biobased products provide 

information on the USDA 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 

floor tile products and which product 

should be afforded the preference in 

purchasing. 

Note to paragraph (d): Biobased floor 

coverings within this designated product 

category can compete with similar floor tile 

products with recycled content. Under the 

Resource Conservation and Recovery Act of 

1976, section 6002, the U.S. Environmental 

Protection Agency designated floor tile 

products containing recovered materials as 

products 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. 

§ 3201.82 Foot care products. 

(a) Definition. Products formulated to 

be used in the soothing or cleaning of 

feet. 

(b) Minimum biobased content. The 

Federal preferred procurement product 

must have a minimum biobased content 

of at least 83 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 April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased foot care products. 

By that date, Federal agencies that have 

the responsibility for drafting or 

reviewing specifications for products to 

be procured shall ensure that the 

relevant specifications require the use of 

biobased foot care products. 

§ 3201.83 Furniture cleaners and 

protectors. 

(a) Definition. Products designed to 

clean and provide protection to the 

surfaces of household furniture other 

than the upholstery. 

(b) Minimum biobased content. The 

Federal preferred procurement product 

must have a minimum 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 April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased furniture cleaners 

and protectors. By that date, Federal 

agencies that have the responsibility for 

drafting or reviewing specifications for 

products to be procured shall ensure 

that the relevant specifications require 

the use of biobased furniture cleaners 

and protectors. 

§ 3201.84 Inks. 

(a) Definitions. (1) Inks are liquid or 

powdered materials that are available in 

several colors and that are used to create 

the visual image on a substrate when 

writing, printing, and copying. 

(2) Inks for which Federal preferred 

procurement applies are: 

(i) Specialty inks. Inks used by 

printers to add extra characteristics to 

their prints for special effects or 

functions. Specialty inks include, but 

are not limited to: CD printing, erasable, 

FDA compliant, invisible, magnetic, 

scratch and sniff, thermochromic, and 

tree marking inks. 

(ii) Inks (sheetfed—color). Pigmented 

inks (other than black inks) used on 

coated and uncoated paper, paperboard, 

some plastic, and foil to print in color 

on annual reports, brochures, labels, 

and similar materials. 

(iii) Inks (sheetfed—black). Black inks 

used on coated and uncoated paper, 

paperboard, some plastic, and foil to 

print in black on annual reports, 

brochures, labels, and similar materials. 

(iv) Inks (printer toner—<25 pages per 

minute (ppm)). Inks that are a powdered 


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Federal Register / Vol. 77, No. 65 / Wednesday, April 4, 2012 / Rules and Regulations 20291 

chemical, used in photocopying 

machines and laser printers, which is 

transferred onto paper to form the 

printed image. These inks are 

formulated to be used in printers with 

standard fusing mechanisms and print 

speeds of less than 25 ppm. 

(v) Inks (printer toner—≥25 ppm). 

Inks that are a powdered chemical, used 

in photocopying machines and laser 

printers, which is transferred onto paper 

to form the printed image. These inks 

are formulated to be used in printers 

with advanced fusing mechanisms and 

print speeds of 25 ppm or greater. 

(vi) Inks (news). Inks used primarily 

to print newspapers. 

(b) Minimum biobased content. The 

minimum biobased content for all inks 

shall be based on the amount of 

qualifying biobased carbon in the 

product as a percent of the weight 

(mass) of the total organic carbon in the 

finished product. The applicable 

minimum biobased contents for the 

Federal preferred procurement products 

are: 

(1) Specialty inks—66 percent. 

(2) Inks (sheetfed—color)—67 percent. 

(3) Inks (sheetfed—black)—49 

percent. 

(4) Inks (printer toner—<25 ppm)—34 

percent. 

(5) Inks (printer toner—≥25 ppm)—20 

percent. 

(6) Inks (news)—32 percent. 

(c) Preference compliance date. No 

later than April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased inks. By that date, 

Federal agencies that have the 

responsibility for drafting or reviewing 

specifications for products to be 

procured shall ensure that the relevant 

specifications require the use of 

biobased inks. 

§ 3201.85 Packing and insulating 

materials. 

(a) Definition. Pre-formed and molded 

materials that are used to hold package 

contents in place during shipping or for 

insulating and sound proofing 

applications. 

(b) Minimum biobased content. The 

Federal preferred procurement product 

must have a minimum biobased content 

of at least 74 percent, which shall be 

based on the amount of qualifying 

biobased carbon in the product as a 

percent of the weight (mass) of the total 

organic carbon in the finished product. 

(c) Preference compliance date. No 

later than April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased packing and 

insulating materials. By that date, 

Federal agencies that have the 

responsibility for drafting or reviewing 

specifications for products to be 

procured shall ensure that the relevant 

specifications require the use of 

biobased packing and insulating 

materials. 

§ 3201.86 Pneumatic equipment 

lubricants. 

(a) Definition. Lubricants designed 

specifically for pneumatic equipment, 

including air compressors, vacuum 

pumps, in-line lubricators, rock drills, 

jackhammers, etc. 

(b) Minimum biobased content. The 

Federal preferred procurement product 

must have a minimum biobased content 

of at least 67 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 April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased pneumatic 

equipment lubricants. By that date, 

Federal agencies that have the 

responsibility for drafting or reviewing 

specifications for products to be 

procured shall ensure that the relevant 

specifications require the use of 

biobased pneumatic equipment 

lubricants. 

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

Qualifying products within this item 

may overlap with the EPA-designated 

recovered content product: Vehicular 

Products—re-refined lubricating oils. 

USDA is requesting that manufacturers 

of these qualifying biobased products 

provide information on the USDA Web 

site of qualifying biobased products 

about the intended uses of the product, 

information on whether or not the 

product contains any recovered 

material, in addition to biobased 

ingredients, and performance standards 

against which the product has been 

tested. This information will assist 

Federal agencies in determining 

whether or not a qualifying biobased 

product overlaps with EPA-designated 

re-refined lubricating oil products and 

which product should be afforded the 

preference in purchasing. 

Note to paragraph (d): Biobased pneumatic 

equipment lubricants within this designated 

product category can compete with similar 

re-refined lubricating oil products with 

recycled content. Under the Resource 

Conservation and Recovery Act of 1976, 

section 6002, the U.S. Environmental 

Protection Agency designated re-refined 

lubricating oil products containing recovered 

materials as products 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. 

§ 3201.87 Wood and concrete stains. 

(a) Definition. Products that are 

designed to be applied as a finish for 

concrete and wood surfaces and that 

contain dyes or pigments to change the 

color without concealing the grain 

pattern or surface texture. 

(b) Minimum biobased content. The 

Federal preferred procurement product 

must have a minimum biobased content 

of at least 39 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 April 4, 2013, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased wood and concrete 

stains. By that date, Federal agencies 

that have the responsibility for drafting 

or reviewing specifications for products 

to be procured shall ensure that the 

relevant specifications require the use of 

biobased wood and concrete stains. 

Dated: March 28, 2012. 

Pearlie S. Reed, 

Assistant Secretary for Administration, U.S. 

Department of Agriculture. 

[FR Doc. 2012–8068 Filed 4–3–12; 8:45 am] 

BILLING CODE 3410–93–P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[Docket Number EERE–2010–BT–TP–0021] 

RIN 1904–AC08 

Energy Conservation Program: Test 

Procedures for Residential Clothes 

Washers; Correction 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule; correction. 

SUMMARY: The U.S. Department of 

Energy (DOE) is correcting a final rule 

establishing revised test procedures for 

residential clothes washers, published 

in the Federal Register on March 7, 

2012, and applicable as of April 6, 2012. 

DOE erroneously omitted regulatory 

language to remove the obsolete 

parenthetical note from the water factor 

calculation section of the currently 

applicable test procedure. 

DATES: Effective: April 6, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Stephen L. Witkowski, U.S. Department 


emcdonald on DSK29S0YB1PROD with RULES