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Rules and Regulations Federal Register

63695 

Vol. 75, No. 200 

Monday, October 18, 2010 

DEPARTMENT OF AGRICULTURE 

Office of Energy Policy and New Uses 

7 CFR Part 2902 

RIN 0503–AA34 

Designation of Biobased Items for 

Federal Procurement 

AGENCY: Departmental Management, 

USDA. 

ACTION: Final rule. 

SUMMARY: The United States Department 

of Agriculture (USDA) is amending the 

Guidelines for Designating Biobased 

Products for Federal Procurement, to 

add eight sections to designate items 

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 items. 

DATES: This rule is effective November 

17, 2010. 

FOR FURTHER INFORMATION CONTACT: Ron 

Buckhalt, USDA, Office of Procurement 

and Property Management, Room 361, 

Reporters Building, 300 7th St., SW., 

Washington, DC 20024; e-mail: 

biopreferred@usda.gov; phone (202) 

205–4008. Information regarding the 

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 

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 Compliance 

K. Congressional Review Act 

I. Authority 

These items 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 February 10, 2010, 

a proposed rule in the Federal Register 

(FR) for the purpose of designating a 

total of nine items for the preferred 

procurement of biobased products by 

Federal agencies (referred to hereafter in 

this FR notice as the ‘‘preferred 

procurement program’’). This proposed 

rule can be found at 75 FR 6795. This 

rulemaking is referred to in this 

preamble as Round 6 (RIN 0503–AA34). 

In the proposed rule, USDA proposed 

designating the following nine items for 

the preferred procurement program: 

Disposable tableware; expanded 

polystyrene foam recycling products; 

heat transfer fluids; ink removers and 

cleaners; mulch and compost materials; 

multipurpose lubricants; office paper; 

topical pain relief products; and turbine 

drip oils. 

Today’s final rule designates the 

proposed items (with the exception of 

office paper) within which biobased 

products will be afforded Federal 

procurement preference. USDA has 

determined that each of the items being 

designated under today’s rulemaking 

meets the necessary statutory 

requirements; that they are being 

produced with biobased products; and 

that their procurement will carry out the 

following objectives of section 9002: To 

improve demand for biobased products; 

to spur development of the industrial 

base through value-added agricultural 

processing and manufacturing in rural 

communities; and to enhance the 

Nation’s energy security by substituting 

biobased products for products derived 

from imported oil and natural gas. 

When USDA designates by 

rulemaking an item (a generic grouping 

of products) for preferred procurement 

under the BioPreferred Program, 

manufacturers of all products under the 

umbrella of that item, that meet the 

requirements to qualify for preferred 

procurement, can claim that status for 

their products. To qualify for preferred 

procurement, a product must be within 

a designated item and must contain at 

least the minimum biobased content 

established for the designated item. 

When the designation of specific items 

is finalized, USDA will invite the 

manufacturers and vendors 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 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 subgroups of products within the 

item that meet different market 

requirements, uses and/or different 

performance specifications. Where such 

subgroups exist, USDA intends to create 

subcategories within the designated 

items. 

During the development of the 

proposal, USDA considered the 

appropriateness of creating 

subcategories with the disposable 

tableware and the ink removers and 

cleaners items. At that time, however, 

USDA did not have sufficient 

information to justify creating 

subcategories within these items. In the 


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63696 Federal Register / Vol. 75, No. 200 / Monday, October 18, 2010 / Rules and Regulations 

proposed rule, USDA requested 

additional information on the 

possibility of subcategorizing these two 

items. USDA did not receive any 

additional information on these items 

during the public comment period that 

could be used to support the creation of 

subcategories at this time. Thus, none of 

the items being designated today have 

subcategories. USDA will continue to 

consider additional information that 

may become available to support 

subcategorization of these items in the 

future. 

Overlap with the Environmental 

Protection Agency (EPA) 

Comprehensive Procurement Guideline 

(CPG) program for recovered content 

products under the Resource 

Conservation and Recovery Act (RCRA) 

section 6002. Some of the products that 

are biobased items, designated for 

preferred procurement under the 

preferred procurement program, may 

also be products EPA has designated 

under the CPG for products containing 

recovered materials. Where that occurs, 

an EPA-designated recovered content 

product (also known as a ‘‘recycled 

content product’’ or ‘‘EPA-designated 

product’’) 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 

(such as 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 the RCRA requires a 

procuring agency purchasing an item 

designated by EPA generally to 

purchase such an item composed of the 

highest percentage of recovered 

materials content practicable. However, 

a procuring agency may decide not to 

purchase such an item based on a 

determination that the item fails to meet 

the reasonable performance standards or 

specifications of the procuring agency. 

An item with recovered materials 

content may not meet reasonable 

performance standards or specifications, 

for example, if the use of the item with 

recovered materials content would 

jeopardize the intended end use of the 

item. 

Where a biobased item is used for the 

same purposes and to meet the same 

Federal agency performance 

requirements as an EPA-designated 

recovered content product, the Federal 

agency must purchase the recovered 

content product. For example, if a 

biobased hydraulic fluid is to be used as 

a fluid in hydraulic systems and 

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

by EPA for that purpose, then the 

Federal agency must purchase the EPAdesignated recovered content product, 

‘‘lubricating oils containing re-refined 

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

hydraulic fluid is to be used to address 

a Federal agency’s certain 

environmental or health performance 

requirements that the EPA-designated 

recovered content product would not 

meet, then the biobased product should 

be given preference, subject to price, 

availability, and performance 

considerations. 

This final rule designates two items 

for preferred procurement for which 

there may also be an EPA-designated 

recovered content product. The first 

item is mulch and compost materials, 

which are also EPA-designated 

recovered content products ‘‘hydraulic 

mulch products’’ and ‘‘compost 

materials’’ under the ‘‘landscaping 

products’’ category of products. The 

second item is multipurpose lubricants, 

which, depending on how they are 

used, may be an 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.epagov/

epaoswer/non-hw/procure/products.

htm and then clicking on the 

appropriate product name. 

Minimum Biobased Contents. The 

minimum biobased contents being 

established with today’s rulemaking are 

based on products for which USDA has 

biobased content test data. In addition 

to considering the biobased content test 

data for each item, USDA also considers 

other factors when establishing the 

minimum biobased content. These other 

factors include: Public comments 

received on the proposed minimum 

biobased contents; product performance 

information to justify the inclusion of 

products at lower levels of biobased 

content; and the range, groupings, and 

breaks in the biobased content test data 

array. Consideration of this information 

allows USDA to establish minimum 

biobased contents on a broad set of 

factors to assist the Federal procurement 

community in its decision to purchase 

biobased products. 

USDA makes every effort to obtain 

biobased content test data on multiple 

products within each item. For most 

designated items, USDA has biobased 

content test data on more than one 

product within a designated item. 

However, USDA must rely on biobased 

product manufacturers to voluntarily 

submit product information and, in 

some cases, USDA has been able to 

obtain biobased content data for only a 

single product within a designated item. 

As USDA obtains additional data on the 

biobased contents for products within 

these eight designated items, USDA will 

evaluate whether the minimum 

biobased content for a designated item 

will be revised. 

USDA anticipates that the minimum 

biobased content of an item that is based 

on a single product is more likely to 

change as additional products in those 

items are identified and tested. In 

today’s final rule, the minimum 

biobased contents for one of the 

designated items (‘‘expanded 

polystyrene foam recycling products’’) is 

based on a single tested product. Given 

that only two biobased products have 

been identified in this item, and only 

one manufacturer supplied a sample for 

testing, USDA believes it is reasonable 

to set a minimum biobased content for 

this item based on the single data point. 

For all items 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 


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Federal Register / Vol. 75, No. 200 / Monday, October 18, 2010 / Rules and Regulations 63697 

consider the public comments and issue 

a final rulemaking on the minimum 

biobased content. 

Future Designations. In making future 

designations, USDA will continue to 

conduct market searches to identify 

manufacturers of biobased products 

within items. USDA will then contact 

the identified manufacturers to solicit 

samples of their products for voluntary 

submission for biobased content testing 

or for the BEES analytical tool. Based on 

these results, USDA will then propose 

new items for designation for preferred 

procurement. 

USDA plans to identify approximately 

10–15 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 certainty 

which items 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 items 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, items with high 

biobased content and for which 

sufficient technical information can be 

obtained quickly may be added or 

moved up on the prioritization list. 

USDA intends to update the list of items 

for future designation on the 

BioPreferred Web site every six months, 

or more often if significant changes are 

made to the list. 

Exemptions. In earlier item 

designation rules, USDA created 

exemptions from the preferred 

procurement program’s requirements for 

procurements involving combat or 

combat-related missions and for 

spacecraft systems and launch support 

equipment. Since publication of those 

final rules in the Federal Register, and 

in response to comments from the 

Department of Defense (DoD), USDA has 

decided to create ‘‘blanket’’ exemptions 

for all items used in products or systems 

designed or procured for combat or 

combat-related missions, which will 

apply to all items designated for the 

procurement preference. These 

‘‘blanket’’ exemptions can be found in 

subpart A of part 2902. Because these 

blanket exemptions are included in 

subpart A of part 2902, it is unnecessary 

to repeat them in the individual item 

designations in this final rule. 

III. Summary of Changes 

As a result of the comments received 

on the proposed rule (see section IV), 

USDA has made two substantive 

changes to the rule. The proposed 

‘‘office paper’’ item has been withdrawn 

from the group of items being 

designated for preferred procurement in 

today’s final rulemaking. USDA has 

decided that the issues raised by the 

commenters regarding the designation 

of this item justify the withdrawal of the 

item from this rulemaking. In addition, 

USDA has revised the definition of the 

disposable tableware item to clarify that 

the item refers to tableware that is made 

of, or coated with, plastic resin. 

IV. Discussion of Public Comments 

USDA solicited comments on the 

proposed rule for 60 days ending on 

April 12, 2010. USDA received 

comments from five commenters by that 

date. The comments were from an 

industry trade organization, three 

manufacturers, and one individual. 

The five commenters submitted 

comments regarding the designation 

process in general and comments 

specific to the designation of disposable 

tableware and office paper. The three 

individual manufacturers also endorsed 

the comments submitted by the industry 

association. 

In the remainder of this section, 

USDA first addresses two general 

comments that relate to the overall 

designation process. All of the specific 

comments related to the proposed 

designation of office paper and 

disposable tableware are presented next, 

followed by USDA’s response to those 

comments. 

General Comments 

Comment: One commenter stated that 

the process to determine what products 

are eligible is not transparent. Product 

category consideration appears to be at 

the request of the manufacturer, as is 

consideration of specific products. 

There is no announcement when a 

manufacturer has submitted a request 

for consideration of their product as 

BioPreferred to enable other 

manufacturers the opportunity to 

submit data. How USDA makes a 

determination that a product warrants 

evaluation as a BioPreferred product is 

also not clear. 

Response: USDA disagrees with the 

commenter’s statement that 

consideration of items for designation in 

the BioPreferred Program is based on 

requests from the manufacturers of 

certain items. As discussed in the 

preamble to the proposed rule (75 FR 

6801 and 6802), USDA uses a model to 

identify and prioritize items for 

designation. Through this model, USDA 

has identified over 100 items for 

potential designation under the 

preferred procurement program. A list 

of these items and information on the 

model can be accessed on the 

BioPreferred Web site at http:// 

www.biopreferred.gov. USDA has 

conducted extensive market research to 

identify manufacturers of biobased 

products and has requested product 

information from manufacturers as they 

have been identified. While the 

willingness of manufacturers to provide 

product information and samples for 

testing has been, and will continue to 

be, a factor in setting the priority for 

designating items, it is not the only 

consideration. The cost, performance, 

availability, and size of the market all 

play a role in selecting items for 

designation. 

Comment: One commenter stated that 

USDA has apparently used the BEES 

analysis tool to meet at least part of its 

environmental information 

responsibilities. The BEES tool is 

designed to evaluate environmental and 

economic performance data for building 

products and does not represent best 

practices for evaluating paper products. 

Life cycle analysis (LCA) practitioners 

familiar with paper manufacturing have 

identified the BEES methodology as 

imprecise when applied to paper 

products. The commenter stated that 

results from the recent peer reviewed 

LCA study, performed at their request, 

indicate, for instance, that the carbon 

footprint of printing and writing papers 

is less than that indicated for the carton 

of ‘‘office paper’’ evaluated through the 

BEES analysis. Furthermore, the size of 

the database on which the BEES 

analysis was conducted renders the 

results meaningless in view of the size 

of the entire paper products 

marketplace. The commenter stated that 

care must be taken if USDA plans to use 

the BEES results in any meaningful 

manner. 

Response: The commenter is correct 

that USDA has used the BEES analytical 

tool to analyze a sample of individual 

products within each designated item. 

The BEES tool has been used to measure 

environmental and economic 

performance of designated items since 

the inception of the BioPreferred 

Program. USDA acknowledges that there 

is a wide range of opinion regarding the 

value of the BEES analysis and is 

currently considering the role of the 

analysis in the BioPreferred Program. 

In the preamble to the proposed rule 

(75 FR 6801), USDA stated that, in 

addition to the BEES analytical tool, 

manufacturers wishing to make similar 


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63698 Federal Register / Vol. 75, No. 200 / Monday, October 18, 2010 / Rules and Regulations 

life-cycle information available may 

choose to use the ASTM Standard 

D7075 analysis. The ASTM Standard 

D7075 product analysis includes 

information on environmental 

performance, human health impacts, 

and economic performance. USDA is 

working with manufacturers and 

vendors to make this information 

available on the BioPreferred Web site 

in order to make the preferred 

procurement program more efficient. 

Office Paper and Disposable Tableware 

Comments: One commenter stated 

that when USDA chooses to evaluate a 

product category such as office paper or 

disposable tableware that has always 

been biobased, it is highly misleading 

and arbitrary to provide the USDA 

BioPreferred imprimatur to only those 

‘‘new’’ products in the category that use 

different biobased raw materials. The 

commenter feels this implies that there 

is an inherent ‘‘good’’ in the alternatives 

not found in wood-based papers, which 

the USDA has not demonstrated and 

LCA does not support. The commenter 

stated that there is no suggestion in the 

legislative history of either the 2002 or 

2008 Farm Bills that Congress intended 

any dislocation of existing biobased 

products. The commenter believes it is 

reasonable to conclude that by 

including the BioPreferred Program in 

the Energy Title in both statutes, 

Congress intended to encourage ‘‘new’’ 

biobased products as a replacement for 

fossil fuel-based products, not to 

displace or substitute for existing 

biobased products. 

One commenter believes that USDA 

has ignored the evolution of the forest 

products industry since 1972 when 

applying the ‘‘mature market’’ definition 

to these products. The commenter states 

that USDA must consider how the 

significant changes made in fiber 

procurement and manufacturing 

technologies have resulted in different 

products than those produced in 1972. 

Increased environmental regulation has 

caused significant changes to paper to 

incorporate more recycled content, 

radically alter bleaching methods and 

chemicals, and facilitate high-speed 

printing, new inks (ink jet, toner, etc.) 

and other innovations. The way the 

wood-fiber is grown and harvested has 

also experienced substantial 

improvement over the past 40 years. 

The commenter believes USDA must 

take these developments into 

consideration in evaluating whether 

today’s wood-based office papers and 

tableware are the same as those that had 

‘‘mature markets’’ in 1972. 

One commenter stressed the need to 

collect and analyze further information 

about the differentiation of these 

existing products as they were in the 

1970s and in 2010. This is necessary to 

better understand USDA’s interpretation 

of the term ‘‘mature’’ apparently 

attached to these existing products. The 

commenter believes that products in a 

constant process of improvement via 

innovation should not be considered 

mature. For example, the average 

rotation age and composition of the 

wood fiber in these products have 

changed towards a more sustainable 

configuration in the last four decades. 

One commenter stated that today’s 

wood-based office papers and 

disposable tableware meet and further 

the minimum biobased content 

requirements. In addition, they meet all 

of the goals of the BioPreferred Program: 

Improving demand for biobased 

products (wood-based paper utilizes 

vast amounts of biobased ingredients), 

stimulating economic growth in rural 

areas (paper manufacturing facilities are 

typically located in rural areas close to 

the raw material and are the economic 

foundation of their communities), and 

enhancing the Nation’s energy security 

(over 60 percent of the energy used to 

manufacture wood-based office papers 

in the United States comes from 

renewable, carbon neutral biomass). 

One commenter stated that Section 

9002(a)(3)(B)(v), 7 U.S.C. 

8102(a)(3)(B)(v), directs the Secretary to 

‘‘provide information as to * * * the 

environmental and public health 

benefits of such [biobased] materials 

and items.’’ USDA has not considered 

whether the alternative fibers used to 

manufacture the alternative office 

papers and tableware are sustainably 

grown and managed. Credible 

sustainable forest management programs 

have assured the continuous 

improvement of forest management to 

provide for healthy forests in the years 

to come. In accepting alternative fiber 

papers into the BioPreferred Program, 

the commenter states USDA must make 

sure that it does not skew the market to 

such a degree that it would alter 

sustainable land use decisions. 

The commenter stated that a classic 

example has been in the renewable 

energy field when the subsidies for 

corn-based ethanol led to additional 

rain forest destruction. The commenter 

further stated that because more corn 

was being grown in the U.S. for 

renewable fuel, it opened the market for 

non-U.S. grown soybeans which led 

farmers in South America to clear rain 

forests for agricultural lands. 

The commenter states that if USDA 

considered sustainable management of 

paper fibers (whether wood or 

alternative) through a credible 

sustainable fiber management program, 

some degree of confidence could be 

drawn that there will not be the 

unintended consequence of forest lands 

being cleared to grow kenaf, for 

instance. 

One commenter stated that office 

papers designated as BioPreferred are 

intended for the same uses, meet the 

same performance requirements, and 

overlap with the EPA’s CPG program for 

recovered content products under the 

RCRA Section 6002. The CPG 

requirements apparently take 

precedence over the BioPreferred 

program; therefore, Federal agencies 

must purchase the recovered content 

product, making the BioPreferred 

designation superfluous for Federal 

procurement of these products. 

One commenter stated that the 

definition of office paper—‘‘paper 

products used in office printer and 

copier applications, writing, and coated 

papers for publications’’—misapplies 

the term ‘‘coated publication papers.’’ 

Coated publication papers are those 

typically used in magazines and 

catalogs, not office machines. USDA 

needs to clarify what it intends by this 

definition. The commenter’s preferred 

definition is: ‘‘Office papers: Uncoated 

and coated paper products used in 

office printer and copier applications, 

and writing papers.’’ 

One commenter stated that the 

performance standard identified for 

office papers—JCP A230–High Yield 

Coated Opaque Offset—may be 

appropriate for the sample paper 

evaluated for the proposal; however, it 

represents only a small minority of the 

type of papers used in office machines. 

The U.S. Government’s Joint Committee 

on Printing Paper Specifications 

includes a wide variety of standards for 

the specific type of paper needed. For 

instance, O–65(A) is the appropriate 

standard for Plain Copier Xerographic 

paper. Therefore, USDA should refer to 

the accurate paper performance 

specification depending on the specific 

paper required. 

One commenter stated that woodbased products have very strong 

positive environmental attributes. The 

commenter stated that by proposing to 

endorse agricultural-based fiber over 

wood fiber, USDA will send an 

economic signal to forest landowners to 

grow more agriculture-based crops 

instead of trees. USDA has always 

favored more forest lands, not less, and 

this would be counter to that position. 

The commenter has completed an LCA 

of the Equal Offset grade, which fits the 

A230 designation, and found that when 

considering environmental impact, this 

paper is the best option as it uses less 


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Federal Register / Vol. 75, No. 200 / Monday, October 18, 2010 / Rules and Regulations 63699 

water, wood fiber and GHG than A60 

(uncoated freesheet). 

One commenter stated that it is not 

beneficial to Americans to apply our 

country’s finite technical, natural, and 

financial resources to replace an already 

existing biobased product like woodbased paper with paper made from 

hemp, kenaf, sugar cane, flax, cotton, 

and/or bamboo. 

Three commenters suggested USDA 

delay its decision regarding inclusion of 

office papers and disposable tableware 

as designated items within the 

BioPreferred Program to allow in-depth 

consideration of the issues between 

USDA and representatives of the 

affected products. These issues also 

include other technical, specification 

and statutory issues that could be 

advanced prior to and during the review 

process. 

Response: USDA considered the 

comments related to the proposed 

designation of office paper and 

disposable tableware and agrees with 

many of the points made by the 

commenters. USDA agrees with the 

commenters that several technical and 

policy issues need to be considered and 

resolved before the designation of the 

office paper item is finalized. USDA is, 

therefore, withdrawing the office paper 

item from the designations being 

finalized in today’s rulemaking. USDA 

responses to specific issues raised by 

the commenters are presented in the 

following paragraphs. 

USDA agrees that it is not the intent 

of the BioPreferred Program to replace a 

traditional biobased product with 

another ‘‘emerging’’ biobased product 

that performs the same function. 

USDA’s intent in proposing to designate 

office paper was to encourage the 

development and use of office paper 

produced from fast-growing, sustainable 

fibers. USDA agrees with the 

commenters, however, that 

implementing the designation as 

proposed could result in the unintended 

replacement of paper produced 

exclusively from sustainably-grown 

forest products. Because of the 

comments that were received, USDA 

believes that more precise definitions 

and additional clarification are needed 

for the product category. 

With regard to the commenter’s 

concerns about the ‘‘mature market’’ 

issue, USDA acknowledges that the 

question of whether a product should be 

considered a mature market product is 

not always simply a matter of whether 

the product had a significant market 

share in 1972. In some cases the market 

share held by a biobased product in 

1972 may have been taken over by 

petroleum-based synthetic products 

during the 1980s or 1990s and the 

biobased alternative may truly be 

‘‘emerging’’ again now. In other cases, 

significant feedstock and process 

changes have resulted in products that 

are very different from the products 

marketed in 1972. USDA agrees that, in 

the case of the proposed ‘‘office paper’’ 

item, more investigation is needed to 

adequately address the issue of whether 

today’s products should be considered 

mature market products. 

Commenters pointed out that the 

office paper category overlaps with an 

EPA recovered content product and 

stated that there would be no benefit in 

designating it under the BioPreferred 

program. USDA acknowledges that for 

some products (including this one) the 

priority given to recovered content 

products reduces the benefits that 

would otherwise be attributed to the 

BioPreferred program. USDA does not 

believe, however, that the CPG program 

eliminates the need to designate items 

for the BioPreferred program. As 

discussed at proposal, there is a wide 

range of performance requirements, 

such as biodegradability or 

compostability, that factor into 

purchasing decisions. USDA believes 

there are potential benefits to 

designating product categories in which 

qualified biobased products are found 

even though the product categories are 

covered by the CPG program. 

Commenters also stated that USDA 

did not adequately analyze 

sustainability of the current methods of 

producing office paper from forestry 

products. USDA acknowledges that 

information on sustainability within the 

forestry and paper production industry 

was not investigated prior to proposing 

the item for designation. USDA agrees 

that consideration of such information 

would be beneficial and will work with 

industry stakeholders to obtain and 

evaluate such information. 

Commenters also stated that there are 

numerous test methods and 

performance specifications that apply to 

office paper other than the one listed in 

the proposal preamble. USDA will 

communicate with stakeholders to 

gather a more complete list of applicable 

performance standards and test 

methods. 

Based on the comments received, 

USDA has decided that designating the 

office paper item as proposed has the 

potential to create much confusion 

among Federal purchasing agents. A 

single designated item for office paper 

would be very broad and would include 

paper designed to serve a wide variety 

of common and specialty functions. 

There is also a wide range of 

performance requirements that would 

have to be addressed in such a broad 

item. USDA will continue to consider 

the issues raised by the commenters, 

will work with the commenters and 

other industry stakeholders to resolve 

the issues, and plans to designate the 

item at a later date. 

With regard to the designation of the 

disposable tableware item, USDA has 

clarified its intent that products within 

the item are those that are made of 

plastic or that have a plastic coating. 

The intent of designating this item is to 

encourage the use of disposable 

tableware made from, or coated with, 

resins derived from renewable biomass 

rather than petroleum-based resins. 

Thus, USDA believes that the 

designation of this item is appropriate 

and has clarified in the final rule that 

the item is defined as ‘‘Products made 

from, or coated with, plastic resins and 

used in dining, such as drink ware and 

dishware, including but not limited to 

cups, plates, bowls, and serving platters, 

and that are designed for one-time use. 

This item does not include disposable 

cutlery, which is a separate item.’’ 

Today’s action finalizes the 

designation of eight items within which 

biobased products will be afforded 

Federal procurement preference. USDA 

encourages manufacturers, vendors, and 

purchasers of biobased products within 

these eight designated items to continue 

to submit information relative to 

products available within these items. If 

sufficient supporting information 

becomes available, USDA will consider 

amending today’s rulemaking by 

creating subcategories within the items, 

raising (or lowering) the minimum 

biobased content, or other appropriate 

actions. 

V. Regulatory Information 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action has been determined 

significant for purposes of Executive 

Order 12866 and, therefore, has been 

reviewed by the Office of Management 

and Budget. We are not able to quantify 

the annual economic effect associated 

with this final rule. As discussed in the 

proposed rule, USDA made extensive 

efforts to obtain information on the 

Federal agencies’ usage within the eight 

designated items. 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 


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readily available, or the product does 

not demonstrate necessary performance 

characteristics, certain assumptions may 

not be valid. While facing these 

quantitative challenges, USDA relied 

upon a qualitative assessment to 

determine the impacts of this 

rulemaking. This assessment was based 

primarily on the offsetting nature of the 

program (an increase in biobased 

products purchased with a 

corresponding decrease in petroleum 

products purchased). Consideration was 

also given to the fact that agencies may 

choose not procure designated items 

due to unreasonable costs. 

1. Summary of Impacts 

This rulemaking is expected to have 

both positive and negative impacts to 

individual businesses, including small 

businesses. USDA anticipates that the 

biobased preferred procurement 

program will provide additional 

opportunities for businesses and 

manufacturers to begin supplying 

products under the designated biobased 

items to Federal agencies and their 

contractors. However, other businesses 

and manufacturers that supply only 

non-qualifying products and do not 

offer biobased alternatives may 

experience a decrease in demand from 

Federal agencies and their contractors. 

USDA is unable to determine the 

number of businesses, including small 

businesses that may be adversely 

affected by this rule. The rule, however, 

will not affect existing purchase orders, 

nor will it preclude businesses from 

modifying their product lines to meet 

new requirements for designated 

biobased products. Because the extent to 

which procuring agencies will find the 

performance and costs of biobased 

products acceptable is unknown, it is 

impossible to quantify the actual 

economic effect of the rule. 

2. Benefits of the Rule 

The designation of these eight items 

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; 

and to enhance the Nation’s energy 

security by substituting biobased 

products for products derived from 

imported oil and natural gas. On a 

national and regional level, this rule can 

result in expanding and strengthening 

markets for biobased materials used in 

these items. 

3. Costs of the Rule 

Like the benefits, the costs of this rule 

have not been quantified. Two types of 

costs are involved: Costs to producers of 

products that will compete with the 

preferred products, and costs to Federal 

agencies to provide procurement 

preference for the preferred products. 

Producers of competing products may 

face a decrease in demand for their 

products to the extent Federal agencies 

refrain from purchasing their products. 

However, it is not known to what extent 

this may occur. Procurement costs for 

Federal agencies may rise as they 

evaluate the availability and relative 

cost of preferred products before making 

a purchase. 

B. Regulatory Flexibility Act (RFA) 

When an agency issues a final rule 

following a proposed rule, the 

Regulatory Flexibility Act (RFA, 5 

U.S.C. 601–612) requires the agency to 

prepare a final regulatory flexibility 

analysis (5 U.S.C. 604). However, the 

requirement for a final regulatory 

flexibility analysis does not apply if the 

head of the agency certifies that the rule 

will not, if promulgated, have a 

significant economic impact on a 

substantial number of small entities (5 

U.S.C. 605(b)). 

USDA evaluated the potential impacts 

of its designation of these items to 

determine whether its actions would 

have a significant impact on a 

substantial number of small entities. 

Because the preferred procurement 

program established under section 9002 

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 benefit 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. 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 items 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 items 

being designated for preferred 

procurement in this rule are expected to 

be included under the following NAICS 

codes: 324191 (petroleum lubricating oil 

and grease manufacturing), 325211 

(plastics materials and resin 

manufacturing), 325411 (medicinal and 

botanical manufacturing), 325612 

(polish and other sanitation goods 

manufacturing), 325998 (other 

miscellaneous chemical products and 

preparation manufacturing), and 326150 

(urethane and other foam product 

manufacturing). USDA obtained 

information on these six NAICS 

categories from the U.S. Census 

Bureau’s Economic Census database. 

USDA found that the Economic Census 

reports about 3,513 companies within 

these six NAICS categories and that 

these companies own a total of about 

4,271 establishments. Thus, the average 

number of establishments per company 

is about 1.2. The Census data also 

reported that of the 4,271 individual 

establishments, about 4,260 (99.7 

percent) have less than 500 employees. 

USDA also found that the overall 

average number of employees per 

company among these industries is 

about 55, with the plastics materials and 

resins segment reporting the highest 

average (about 90 employees per 

company). Thus, nearly all of the 

businesses fall within the Small 

Business Administration’s definition of 

a small business (less 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 items being designated, but 

believes that the impact will not be 

significant. Most of the items 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 


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products within the items being 

designated and selling significant 

quantities of those products to 

government agencies affected by this 

rulemaking to be relatively low. Also, 

this rule will not affect existing 

purchase orders and it will not preclude 

procuring agencies from continuing to 

purchase non-biobased items when 

biobased items do not meet the 

availability, performance, or reasonable 

price criteria. 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. 

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. 

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. Although there 

is no statutory requirement to do so, we 

believe that, in the long term, many 

state and local governments will 

implement similar purchase programs 

based on the BioPreferred Program. 

USDA has been charged by Congress to 

share information on the BioPreferred 

Program with 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. E-Government Act Compliance 

The Office of Procurement and 

Property Management 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 2902 

Biobased products, Procurement. 

■ For the reasons stated in the preamble, 

the Department of Agriculture is 

amending 7 CFR chapter XXIX as 

follows: 

CHAPTER XXIX—OFFICE OF ENERGY 

PART 2902—GUIDELINES FOR 

DESIGNATING BIOBASED PRODUCTS 

FOR FEDERAL PROCUREMENT 

■ 1. The authority citation for part 2902 

continues to read as follows: 

Authority: 7 U.S.C. 8102. 

■ 2. Add §§ 2902.52 through 2902.60 to 

subpart B to read as follows: 

Sec. 

2902.52 Disposable tableware. 

2902.53 Expanded polystyrene foam 

recycling products. 

2902.54 Heat transfer fluids. 

2902.55 Ink removers and cleaners. 

2902.56 Mulch and compost materials. 

2902.57 Multipurpose lubricants. 

2902.58 [Reserved] 

2902.59 Topical pain relief products. 

2902.60 Turbine drip oils. 

§ 2902.52 Disposable tableware. 

(a) Definition. Products made from, or 

coated with, plastic resins and used in 

dining, such as drink ware and 

dishware, including but not limited to 

cups, plates, bowls, and serving platters, 

and that are designed for one-time use. 

This item does not include disposable 

cutlery, which is a separate item. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a minimum 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. 


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(c) Preference compliance date. No 

later than October 18, 2011, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased disposable 

tableware. 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 tableware. 

§ 2902.53 Expanded polystyrene (EPS) 

foam recycling products. 

(a) Definition. Products formulated to 

dissolve EPS foam to reduce the volume 

of recycled or discarded EPS items. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a minimum biobased content of at 

least 90 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 October 18, 2011, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased EPS foam recycling 

products. By that date, Federal agencies 

that have the responsibility for drafting 

or reviewing specifications for items to 

be procured shall ensure that the 

relevant specifications require the use of 

biobased EPS foam recycling products. 

§ 2902.54 Heat transfer fluids. 

(a) Definition. Products with high 

thermal capacities used to facilitate the 

transfer of heat from one location to 

another, including coolants or 

refrigerants for use in HVAC 

applications, internal combustion 

engines, personal cooling devices, 

thermal energy storage, or other heating 

or cooling closed-loops. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a minimum 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 October 18, 2011, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased heat transfer fluids. 

By that date, Federal agencies that have 

the responsibility for drafting or 

reviewing specifications for items to be 

procured shall ensure that the relevant 

specifications require the use of 

biobased heat transfer fluids. 

§ 2902.55 Ink removers and cleaners. 

(a) Definition. Chemical products 

designed to remove ink, haze, glaze, and 

other residual ink contaminants from 

the surfaces of equipment, such as 

rollers, used in the textile and printing 

industries. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a minimum biobased content of at 

least 79 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 October 18, 2011, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased ink removers and 

cleaners. By that date, Federal agencies 

that have the responsibility for drafting 

or reviewing specifications for items to 

be procured shall ensure that the 

relevant specifications require the use of 

biobased ink removers and cleaners. 

§ 2902.56 Mulch and compost materials. 

(a) Definition. Products designed to 

provide a protective covering placed 

over the soil, primarily to keep down 

weeds and to improve the appearance of 

landscaping. Compost is the aerobically 

decomposed remnants of organic 

materials used in gardening and 

agriculture as a soil amendment, and 

commercially by the landscaping and 

container nursery industries. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a minimum biobased content of at 

least 95 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 October 18, 2011, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased mulch and compost 

materials. 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 mulch and compost materials. 

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

Qualifying products within this item 

may overlap with the EPA-designated 

recovered content product: Landscaping 

products—‘‘compost’’ and ‘‘hydraulic 

mulch’’. 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 

landscaping products and which 

product should be afforded the 

preference in purchasing. 

Note to paragraph (d): Biobased mulch and 

compost materials within this designated 

item can compete with similar landscaping 

products with recycled content. Under the 

Resource Conservation and Recovery Act of 

1976, section 6002, the U.S. Environmental 

Protection Agency designated landscaping 

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 247.15. 

§ 2902.57 Multipurpose lubricants. 

(a) Definition. Products designed to 

provide lubrication under a variety of 

conditions and in a variety of industrial 

settings to prevent friction or rust. 

Greases, which are lubricants composed 

of oils thickened to a semisolid or solid 

consistency using soaps, polymers or 

other solids, or other thickeners, are not 

included in this item. In addition, taskspecific lubricants, such as chain and 

cable lubricants and gear lubricants, are 

not included in this item. 

(b) Minimum biobased content. The 

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 October 18, 2011, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased multipurpose 

lubricants. By that date, Federal 

agencies that have the responsibility for 

drafting or reviewing specifications for 

items to be procured shall ensure that 

the relevant specifications require the 

use of biobased multipurpose 

lubricants. 

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

Qualifying products within this item 

may overlap with the EPA-designated 

recovered content product: Re-refined 

lubricating oils. USDA is requesting that 

manufacturers of these qualifying 

biobased products provide information 

on the BioPreferred Web site 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 


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against which the product has been 

tested. This information will assist 

Federal agencies in determining 

whether or not a qualifying biobased 

product overlaps with EPA-designated 

re-refined lubricating oils and which 

product should be afforded the 

preference in purchasing. 

Note to paragraph (d): Biobased 

multipurpose lubricant products within this 

designated item can compete with similar 

multipurpose lubricant products with 

recycled content. Under the Resource 

Conservation and Recovery Act of 1976, 

section 6002, the U.S. Environmental 

Protection Agency designated re-refined 

lubricating oils containing recovered 

materials as items for which Federal agencies 

must give preference in their purchasing 

programs. The designation can be found in 

the Comprehensive Procurement Guideline, 

40 CFR 247.11. 

§ 2902.58 [Reserved] 

§ 2902.59 Topical pain relief products. 

(a) Definition. Products that can be 

balms, creams and other topical 

treatments used for the relief of muscle, 

joint, headache, and nerve pain, as well 

as sprains, bruises, swelling, and other 

aches. 

(b) Minimum biobased content. The 

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 October 18, 2011, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased topical pain relief 

products. By that date, Federal agencies 

that have the responsibility for drafting 

or reviewing specifications for items to 

be procured shall ensure that the 

relevant specifications require the use of 

biobased topical pain relief products. 

§ 2902.60 Turbine drip oils. 

(a) Definition. Products that are 

lubricants for use in drip lubrication 

systems for water well line shaft 

bearings, water turbine bearings for 

irrigation pumps, and other turbine 

bearing applications. 

(b) Minimum biobased content. The 

preferred procurement product must 

have a minimum biobased content of at 

least 87 percent, which shall be based 

on the amount of qualifying biobased 

carbon in the product as a percent of the 

weight (mass) of the total organic carbon 

in the finished product. 

(c) Preference compliance date. No 

later than October 18, 2011, procuring 

agencies, in accordance with this part, 

will give a procurement preference for 

qualifying biobased turbine drip oils. By 

that date, Federal agencies that have the 

responsibility for drafting or reviewing 

specifications for items to be procured 

shall ensure that the relevant 

specifications require the use of 

biobased turbine drip oils. 

Dated: October 12, 2010. 

Pearlie S. Reed, 

Assistant Secretary for Administration, U.S. 

Department of Agriculture. 

[FR Doc. 2010–26122 Filed 10–15–10; 8:45 am] 

BILLING CODE 3410–93–P 

FEDERAL RESERVE SYSTEM 

12 CFR Part 261a 

[Docket No. R–1313] 

Privacy Act of 1974; Privacy Act 

Regulation 

AGENCY: Board of Governors of the 

Federal Reserve System. 

ACTION: Final rule. 

SUMMARY: The Board of Governors of the 

Federal Reserve System (Board) is 

issuing a final rule to amend its 

regulation implementing the Privacy 

Act of 1974 (Privacy Act). The primary 

changes concern the waiver of copying 

fees charged to current and former 

Board employees, and applicants for 

Board employment, for access to their 

records under the Privacy Act; the 

amendment of special procedures for 

the release of medical records to permit 

the Board’s Chief Privacy Officer to 

consult with the Board’s Employee 

Assistance Program counselor to 

determine whether the disclosure of 

medical records directly to the requester 

could have an adverse effect on the 

requester; changes to the time limits for 

responding to requests for access to 

information and amendment of records; 

and updates to the exemptions claimed 

for certain systems of records. In 

addition, the Board is proposing to 

make minor editorial and technical 

changes to ensure that the Board’s 

regulation is consistent with the Board’s 

published systems of records and is 

clearer. 

DATES: This rule is effective October 18, 

2010. 

FOR FURTHER INFORMATION CONTACT: Brad 

Fleetwood, Senior Counsel, (202) 452– 

3721, Legal Division. For users of 

Telecommunications Device for the Deaf 

(TDD) only, contact (202) 263–4869. 

SUPPLEMENTARY INFORMATION: The Board 

published a notice of proposed 

rulemaking to amend its regulation 

implementing the Privacy Act in the 

Federal Register, 73 FR 25594, May 7, 

2008. The proposed amendments: (1) 

Waived all copying fees in connection 

with any Privacy Act request by current 

or former Board employees and 

applicants for Board employment; (2) 

permitted the Chief Privacy Officer to 

consult with the Board’s Employee 

Assistance Program counselor as well as 

the Board’s physician to determine 

whether the disclosure of medical 

records directly to the requester could 

have an adverse effect on the requester; 

(3) required all requests for access 

(including requests made by current 

Board employees for access to their 

personnel records) to be submitted in 

writing to the Secretary of the Board; (4) 

lengthened the time limits for 

acknowledging (and where practicable, 

substantially responding to) an 

individual’s request for access to 

information and making a determination 

on a request to amend an individual’s 

record; (5) replaced the statutory 

exemptions listed in the Privacy Act 

with references to the relevant 

provisions in the Privacy Act; (6) 

updated the exemptions listed under 

12 CFR 261a.12 to conform to the 

exemptions approved for each of the 

Board’s Privacy Act systems of records; 

and (7) made minor editorial and 

technical changes for clarity and 

consistency with the Board’s published 

systems of records. 

In response to these proposed 

amendments, the Board received three 

public comments relating to the privacy 

of information held by banks and other 

financial institutions. Because the 

Board’s Privacy Act regulation does not 

regulate the privacy of this information, 

the Board did not consider these 

comments relevant. 

The Board’s final rule adopts all of the 

amendments as proposed except that 

the Board has determined to revise the 

requirement that all requests for access 

be submitted in writing to the Secretary 

of the Board. This amendment was 

proposed to facilitate appropriate 

tracking and processing of all Privacy 

Act requests. However, after an internal 

review of this matter, the Board 

determined that because current and 

former employees frequently request 

access to records about themselves 

directly from Human Resources (HR) in 

person to require such employees to 

instead seek this information from the 

Secretary’s Office in writing would be 

extremely burdensome. Any benefit 

from an increased ability to track these 

requests would be more than 

outweighed by the increased difficulty 

that employees would face in seeking 

information about themselves. 


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