[Federal Register: December 19, 2003 (Volume 68, Number 244)]

[Proposed Rules]               

[Page 70730-70746]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr19de03-16]                         



========================================================================

Proposed Rules

                                                Federal Register

________________________________________________________________________



This section of the FEDERAL REGISTER contains notices to the public of 

the proposed issuance of rules and regulations. The purpose of these 

notices is to give interested persons an opportunity to participate in 

the rule making prior to the adoption of the final rules.



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[[Page 70730]]







DEPARTMENT OF AGRICULTURE



Office of Energy Policy and New Uses



7 CFR Part 2902



RIN 0503-AA26



 

Guidelines for Designating Biobased Products for Federal 

Procurement



AGENCY: Office of Energy Policy and New Uses, USDA.



ACTION: Notice of proposed rulemaking.



-----------------------------------------------------------------------



SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to 

establish guidelines for designating items made from biobased products 

that would be afforded Federal procurement preference, as required 

under Section 9002 of the Farm Security and Rural Investment Act of 

2002 (FSRIA).



DATES: Submit comments on or before February 17, 2004.



ADDRESSES: You may submit comments by postal mail/commercial delivery 

or by e-mail. If you use postal mail/commercial delivery, please send 

your comments to: Marvin Duncan, USDA, Office of the Chief Economist, 

Office of Energy Policy and New Uses, Room 361, 300 Seventh Street SW., 

Washington, DC 20024. If you wish to use e-mail, go to the Web site 

http://www.biobased.oce.usda.gov for e-mail instructions or use the e-



mail address fb4p@oce.usda.gov. Please include your name and address in 

your message and ``Proposed Guidelines'' on the subject line. Persons 

with disabilities who require alternative means for communication for 

regulatory information (braille, large print, audiotape, etc.) should 

contact USDA's TARGET Center at (202) 720-2600 (voice) and (202) 401-

4133 (TDD).



FOR FURTHER INFORMATION CONTACT: Marvin Duncan by e-mail at 

mduncan@oce.usda.gov or by phone at (202) 401-0532.



SUPPLEMENTARY INFORMATION:



I. Authority



    These guidelines are proposed under the authority of section 9002 

of the Farm Security and Rural Investment Act of 2002 (FSRIA), 7 U.S.C. 

8102 (referred to in this document as ``section 9002'').



II. Overview of Section 9002



    Section 9002 provides for preferred procurement of biobased 

products by Federal agencies. Federal agencies are required to purchase 

biobased products, as defined in regulations to implement the statute, 

for all items costing over $10,000 or when the quantities of 

functionally equivalent items purchased over the preceding fiscal year 

equaled $10,000 or more. Procurements by a Federal agency subject to 

section 6002 of the Solid Waste Disposal Act (42 U.S.C. 6962) are not 

subject to the requirements under section 9002 to the extent that the 

requirements of the two programs are inconsistent. Federal agencies 

must procure biobased products unless the items are not reasonably 

available, fail to meet applicable performance standards, or are 

available only at an unreasonable price.

    The Office of Federal Procurement Policy (OFPP) and the USDA will 

work in cooperation to implement the requirements of section 9002. In 

this document, we are proposing to establish guidelines for Federal 

agencies to follow in the procurement of items designated for preferred 

procurement. These guidelines also address the statutory requirement 

that Federal agencies have in place, within 1 year of the publication 

of final guidelines, a procurement program that assures items composed 

of biobased products will be purchased to the maximum extent practical. 

Those procurement programs would have to contain a biobased products 

preference program, an agency promotion program, and provisions for the 

annual review and monitoring of an agency's procurement program. USDA 

consulted with the Environmental Protection Agency (EPA), the General 

Services Administration (GSA), and the Department of Commerce National 

Institute of Standards and Technology (NIST) in preparing these 

proposed guidelines.

    In designating items (generic groupings of specific products such 

as crankcase oils or synthetic fibers), the Secretary will consider the 

availability of such items and the economic and technological 

feasibility of using such items, including life cycle costs. Federal 

agencies would be required to purchase products contained within an 

item only after that item has been designated for preferred 

procurement. In addition, the Secretary would provide information to 

Federal agencies on the availability, relative price, performance, and 

environmental and public health benefits of such items and, where 

appropriate, would recommend the level of biobased content to be 

contained in the procured product. Manufacturers and vendors would be 

able to offer their products to Federal agencies for preferred 

procurement under the proposed program when their commercial products 

fell within the definition of an item that had been designated for 

preferred procurement and the biobased content of the products met the 

standards set forth in the guidelines.

    Paragraph (h) of section 9002 provides that the Secretary, in 

consultation with the Administrator of the Environmental Protection 

Agency (EPA), shall establish a voluntary program authorizing producers 

of biobased products to use a ``U.S.D.A. Certified Biobased Product'' 

label. In a subsequent rulemaking, we intend to establish that 

voluntary program and provide eligibility criteria and guidelines for 

the use of the ``U.S.D.A. Certified Biobased Product'' label.

    Paragraph (j) of section 9002 provides funds to the Secretary to 

support the testing of biobased products to carry out the provisions of 

the section.

    The legislative history of Title IX of FSRIA suggests that Congress 

had in mind three primary objectives that would apply to section 9002. 

The first objective is to improve demand for biobased products. This 

would have a number of salutary effects, one of which would be to 

increase domestic demand for many agricultural commodities that can 

serve as feedstocks for production of biobased products. Another 

important effect would be the substitution of products with a more 

benign or beneficial environmental impact, as compared to the use of 

fossil energy based products.

    As a second objective, Congress wants to spur the development of 

value-added agricultural processing and manufacturing in rural 

communities.



[[Page 70731]]



Since biobased feedstocks are largely produced in rural settings and, 

because of their bulk, require pre-processing or manufacturing close to 

where they are grown, increased dependence on biobased products appears 

likely to increase the amount of pre-processing and manufacturing of 

biobased products in rural regions of the Nation. This trend would help 

to create new investment, job formation, and income generation in these 

rural regions.

    The third objective is to enhance the Nation's energy security by 

substituting domestically produced biobased products for fossil energy-

based products derived from imported oil and natural gas. The growing 

dependence of the Nation on imported oil and natural gas, along with 

heightened concerns about political instability in some of the oil rich 

regions in the world, have led the Congress to place a higher priority 

on domestically produced energy and biobased products.



III. Background



    In 1999, as required by section 504 of Executive Order 13101, 

``Greening the Government through Waste Prevention, Recycling, and 

Federal Acquisition,'' the U.S. Department of Agriculture (USDA) 

Biobased Products Coordination Council (now called the Biobased 

Products and Bioenergy Coordination Council) published a notice in the 

Federal Register (64 FR 44185, Aug. 13, 1999) to solicit public 

comments on a process for considering items for inclusion on a USDA 

Biobased Products List and suggested criteria for including biobased 

items on that list. The Council was established by the Secretary of 

Agriculture and is comprised of USDA representatives with 

commercialization, legislative, marketing, procurement, rural 

development, research, and other technical expertise. Others consulted 

regarding the listing procedures described in the August 1999 notice 

included the Office of the Federal Environmental Executive, NIST, EPA, 

the Federal Trade Commission (FTC), environmental organizations, and 

agricultural organizations. Also advising USDA were Federal members of 

the Executive Order 13101 Inter-Agency Advisory Group.

    The requirements of section 9002 differ from those of Executive 

Order 13101. For example, the Executive Order and section 9002 use 

slightly different definitions of the term ``biobased product.'' 

Another distinction is that the Executive Order encourages, but does 

not require, procurement of biobased products. Section 9002 establishes 

a mandatory procurement preference, with limited exceptions, for 

designated items. The Executive Order envisions a list of specific 

products to be promulgated, whereas section 9002 requires guidelines 

designating ``items which are or can be produced with biobased 

products'' and recommended procurement practices for both biobased 

products and items containing biobased products.

    Under section 9002, the term ``biobased products'' refers to ``a 

product determined by the Secretary to be a commercial or industrial 

product (other than food or feed) that is composed, in whole or in 

significant part, of biological products or renewable domestic 

agricultural materials (including plant, animal, and marine materials) 

or forestry materials.'' The term ``item'' refers to a subcategory or 

grouping of similar products containing biobased content. An item is 

populated by commercial and industrial products available for purchase 

by Federal agencies. An example of an item (or subcategory) under the 

``Lubricants and functional fluids category'' discussed later in this 

document is hydraulic, power steering, and transmission fluids. Under 

Executive Order 13101, the term ``biobased product'' was used to mean 

what the term ``item'' means under section 9002.

    USDA no longer intends to promulgate a list of biobased products as 

envisioned in Executive Order 13101. Rather, USDA will designate items 

that qualify for preferred procurement as required by section 9002.

    The statutorily required elements of the section 9002 guidelines 

further distinguish the guidelines from the Executive Order list. 

Despite these differences, comments received in response to the 1999 

proposed procedures to implement the biobased products list were taken 

into consideration when preparing proposed product categories and 

selection criteria for these proposed guidelines.

    For purposes of identifying a Federal agency in implementing 

section 9002, we have chosen to use the definition of ``Federal 

agency'' found in the Federal Acquisition Regulation (48 CFR 2.101), 

i.e., ``any executive agency or any independent establishment in the 

legislative or judicial branch of Government (except the Senate, the 

House of Representatives, the Architect of the Capitol, and any 

activities under the Architect's direction).''

    Once USDA designates an item, responsibility for complying with 

section 9002 rests with Federal agencies. Responsibilities and 

implementation strategies of USDA, Federal agencies, the Office of 

Federal Procurement Policy, and manufacturers and vendors, 

respectively, are outlined briefly below in section IV.

    This program is modeled on the EPA Comprehensive Procurement 

Guideline for Products Containing Recovered Materials, known as the 

Comprehensive Procurement Guideline (CPG), 40 CFR part 247, which 

designates items that are or can be made with recovered materials. The 

CPG implements section 6002 of the Solid Waste Disposal Act (42 U.S.C. 

6962), as amended by the Resource Conservation and Recovery Act of 1976 

(RCRA), as amended. Executive Order 13101 also facilitated RCRA 

implementation. RCRA requires EPA to designate items that are or can be 

produced with recovered materials and to recommend practices for the 

procurement of designated items by procuring agencies. Executive Order 

13101 directs EPA to designate the products in the CPG and to provide 

purchasing recommendations in Recovered Materials Advisory Notices 

(RMANs). Information on the CPG and the RMANs can be found on the 

Internet at http://www.epa.gov/cpg.



    The legislative history of section 9002 suggests that Congress 

intended to use this program to speed the development of new markets 

for biobased products, rather than to support mature markets for 

products. Hence, USDA has crafted this program to focus on new market 

development. It is USDA's intention to exclude from this program 

biobased products it concludes have mature markets. USDA proposes to 

use a number of filters or tests to exclude products in what it defines 

as mature markets. If a product falls within an excluded group of 

products in any one filter, it is excluded from consideration under the 

program to implement section 9002. To be eligible for preferred 

procurement under section 9002, a product must be found eligible under 

each of these filters or tests. In the first test, silk, cotton and 

wool garments, household items, and industrial or commercial products 

are excluded, unless made with a substantial amount of a biobased 

plastic product. Also excluded are wood products made from 

traditionally harvested forest materials.

    Biobased products marketed only in regional or in single 

specialized markets, rather than national markets, are not considered 

to be in mature markets for purposes of this program. Finally, products 

developed, or that have made significant market penetration, more 

recently than 1972 also are not considered to be in mature markets for 

purposes of this program. The first of several oil supply and price 

shocks, which occurred in the United States beginning at about 1972, 

was an



[[Page 70732]]



important impetus for beginning sustained serious new development of 

biobased alternatives for fossil based energy and other products in the 

United States. Hence, USDA has chosen to use 1972 as a dividing point 

between mature and emerging markets for this program.



IV. Responsibilities and Implementation Strategies under Section 9002



A. USDA's Responsibilities and Implementation Strategies



    To carry out the requirements of section 9002, USDA will:

    [sbull] Propose guidelines, after consultation with the EPA, GSA, 

and NIST, for the use of Federal agencies that indicate which items are 

or can be produced with biobased products and whose procurement by 

procuring agencies would carry out the objectives of this program;

    [sbull] Determine in the guidelines, as appropriate, the minimum 

level of biobased material to be contained in a designated item;

    [sbull] Propose items to be available for designation under the 

guidelines and explain the factors to be considered in their 

designation (availability, economic and technological feasibility, and 

life cycle costs);

    [sbull] Identify in the guidelines the information about 

availability, relative price, performance, and environmental and public 

health benefits that will be provided to Federal agencies on items 

designated for preferred procurement; and

    [sbull] Set forth recommended practices for the procurement of 

biobased products and designated items.



B. Federal Agencies' Responsibilities and Implementation Strategies



    Following the issuance of final guidelines and the designation of 

items, Federal agencies would:

    [sbull] Give a procurement preference, with certain exceptions, to 

designated items with the highest percentage of biobased products 

practicable, consistent with the guidelines and with maintaining 

sufficient competition;

    [sbull] Incorporate in procurement specifications biobased item 

preferences consistent with the guidelines and the requirements of 

section 9002; and

    [sbull] Establish an agency affirmative procurement program that 

includes a biobased products preference program, an agency promotion 

program to promote the preference program, and an annual review to 

monitor the effectiveness of the agency's procurement program.



C. Office of Federal Procurement Policy Responsibilities and 

Implementation Strategies



    Following the issuance of final guidelines and subsequent 

regulatory action to designate items eligible for preferred 

procurement, the OFPP would:

    [sbull] Work in cooperation with USDA to implement the biobased 

product procurement preference program;

    [sbull] Coordinate the biobased products procurement policy with 

other Federal procurement policies; and

    [sbull] Report to Congress every 2 years on the actions taken by 

Federal agencies in the implementation of the biobased product 

procurement program.



D. Manufacturers' and Vendors' Responsibilities and Implementation 

Strategies



    Following the issuance of final guidelines and designation of items 

eligible for preferred procurement, firms desiring to participate in 

the program would:

    [sbull] Determine whether products they intend to offer for Federal 

agency procurement qualify under the guidelines and fall within items 

designated by USDA for preferred procurement;

    [sbull] Certify the percentage of biobased content in the 

commercial or industrial products that fall within designated items and 

are proposed by the manufacturer or vendor to be used in the 

performance of a contract; and

    [sbull] When offering biobased products from an item that has been 

designated by the Secretary for preferred procurement by Federal 

agencies, certify that the biobased products to be used in the 

performance of the contract will comply with the applicable 

specifications or other contractual requirements.



V. Proposed Guidelines



    The proposed guidelines would be contained in a new 7 CFR part 

2902, ``Guidelines for Designating Biobased Products for Federal 

Procurement.'' The new part would be divided into two subparts, 

``Subpart A--General,'' and ``Subpart B--Biobased Product Eligibility 

for Federal Preference.'' Subpart A would address the purpose and scope 

of the guidelines and their applicability, provide guidance on product 

availability and procurement, define terms used in the part, and 

address affirmative procurement programs and USDA funding for testing. 

Subpart B would address communicating information on qualifying 

biobased products and characteristics required for obtaining designated 

item status, and would set out the initial categories of designated 

items and minimum content. The proposed guidelines are discussed in 

detail below.



Proposed Sec.  2902.1: Purpose and Scope



    This section would introduce the guidelines by explaining that 

their purpose is to assist Federal agencies in complying with the 

requirements of section 9002 as they apply to the procurement of 

designated items. This section would also note that items designated in 

the guidelines are those items that are or can be produced with 

biobased products and whose procurement by Federal agencies will carry 

out the objectives of section 9002.



Proposed Sec.  2902.2: Applicability to Federal Agencies and Exceptions 

to Procurement of Biobased Items



    The procurement preference applies to all Federal agencies (as 

defined in this document) with respect to all procurement actions where 

the purchase price of the item exceeds $10,000 or where the quantity of 

such items (or of functionally equivalent items) purchased during the 

preceding fiscal year cost a total of $10,000 or more. Unlike the EPA 

program for procurement of items with recovered materials, section 9002 

affords a procurement preference for biobased products only for 

procurement by Federal agencies. Thus, unlike RCRA (42 U.S.C. 

6903(17)), the guidelines do not apply to State and local agencies 

using appropriated Federal funds to procure qualifying biobased items, 

and persons contracting with such agencies with respect to work 

performed under such contracts. USDA proposes to apply the $10,000 

threshold as applicable to Federal agencies as a whole, rather than to 

agency subgroups such as regional offices or subagencies of a larger 

department or agency.

    As noted previously, the proposed guidelines would not apply to any 

procurement by any Federal agency that is subject to the regulations 

issued by the EPA under section 6002 of the Solid Waste Disposal Act 

(40 CFR part 247), to the extent that the requirements of the 

guidelines are inconsistent with those regulations. Further, as 

provided by paragraph (i) of section 9002, these guidelines do not 

apply to the procurement of motor vehicle fuels or electricity.

    Section 9002 requires Federal agencies to purchase designated 

biobased items unless the agency determines the items to be procured 

are not readily available within a reasonable



[[Page 70733]]



period of time, fail to meet the performance standards set out in 

applicable specifications or fail to meet reasonable performance 

standards of procuring agencies, or are available only at an 

unreasonable price.



Proposed Sec.  2902.3: USDA Guidance on Item Availability and 

Procurement



    The proposed guidelines would provide that, prior to designating 

items for preferred procurement under the section 9002 program, USDA 

would consider a number of factors. These factors are availability of 

the items and the economic feasibility and technological feasibility of 

using such items, including life cycle costs. Moreover, when 

designating items for preferred procurement under the program, USDA 

would provide the following information to Federal agencies on the 

items designated: availability, relative price, performance, and 

environmental and public health benefits of using the designated items.

    In order to accomplish these requirements, USDA plans to initially 

rely, in part, on the information developed in a study by Concurrent 

Technologies Corporation (CTC) to address the statutory requirement for 

information on item availability. This study was conducted by CTC under 

a contract with the USDA Agricultural Research Service (ARS) as one of 

the activities undertaken by ARS in order to fulfill Executive Order 

13101's requirement for the development of information on the market 

availability of biobased items. The CTC study can be viewed on the Web 

site http://www.biobased.oce.usda.gov.



    Information on economic and technological feasibility of using 

biobased items and life cycle costs will be sought from industry. 

Because of the heterogeneity among commercial products with biobased 

content within any grouping of biobased items, and the heterogeneity of 

characteristics across item groupings, information will be sought on 

individual commercial products included within each type of item. Once 

this information is available on a sufficient number of such products 

within an item, the information will be evaluated and extrapolated to 

the generic item level and, if determined to be adequate to meet the 

requirements of section 9002, the item will be designated for preferred 

procurement.

    Information on relative price, performance, and environmental and 

public health benefits that the Secretary is required to provide to 

Federal agencies will be gathered from manufacturers and vendors at the 

individual product level. This information, to be of maximum value to 

Federal agencies in making procurement decisions, must be considered at 

an individual product level.

    USDA proposes to gather the above discussed information from 

industry using an Internet Web site to which manufacturers and vendors 

will be invited to voluntarily provide information, including 

availability on the commercial products with biobased content that they 

offer to Federal agencies. That Web site will provide business contact 

information, selected test information, and the information about the 

offered commercial products noted in this discussion. It will also 

group such information by item and indicate whether the item has been 

designated for preferred procurement under the section 9002 program. No 

items will be designated for preferred procurement until adequate 

information has been obtained from manufacturers and vendors to enable 

the Secretary to both designate the item and provide Federal agencies 

the required information about the item. USDA also believes that making 

the above noted information available on an individual commercial 

product basis on USDA's informational Web site will provide the 

greatest help to Federal agencies in making decisions on the purchase 

of biobased products.

    USDA envisions the voluntary, web-based information system as the 

principal clearinghouse of information on manufacturer and vendor 

contact information, currently available products, and relevant product 

characteristics.

    A standardized format with interactive capabilities will permit 

manufacturers and vendors to enter information into the Web site. The 

information is not expected to be either confidential or proprietary, 

but will instead be information a business firm would provide 

prospective purchasers. Data placed on the Web site will be password 

protected and can only be changed by the submitting manufacturer or 

vendor or by USDA. Moreover, password protection can extend, if 

necessary, to making individual product information accessible only to 

Federal agencies, USDA, and to the firm providing the information. USDA 

will ask manufacturers and vendors to annually review data provided on 

the Web site and to purge inaccurate or out-of-date information. In 

addition, USDA will periodically audit the information displayed and, 

where questions arise, contact the manufacturer or vendor to verify, 

correct, or remove incorrect or out-of-date information.

    Federal agency procurement officials are encouraged to access the 

website to gather information on commercially available products within 

the scope of designated items, as a means of facilitating the 

acquisition of designated items, in furtherance of the requirements of 

section 9002.

    After discussions with the Office of Management and Budget (OMB), 

USDA also has agreed to develop a model procurement policy and program 

for designated items to support its own procurement practices. USDA 

intends to work with OFPP to develop outreach and education programs, 

based on the USDA model procurement policy, to assist other Federal 

agencies in complying with the requirements of this program.

    USDA seeks comments on the kinds of contact and product information 

that should be made available on its web-based information system, as 

well as comments on the appropriate components of a model procurement 

program for biobased items.



Proposed Sec.  2902.4: Definitions



    Section 2902.4 would define the terms used in the proposed 

guidelines. The definition of biobased product restates the statutory 

definition for that term in section 9001 of FSRIA. The section also 

defines several basic operational terms such as Secretary, BEES, ASTM 

International, diluent, filler, and FSRIA. The basis for many operative 

definitions is self-evident. The operative technical definitions 

reflect common industry usage. USDA is exercising its discretion in 

defining the remaining operational terms, most significantly biological 

products, Federal agency, agricultural materials, biobased content, 

forestry materials, and small and emerging private business 

enterprises.



Proposed Sec.  2902.5: Preferred Procurement Program



    Section 2902.5 sets out the procurement requirements or 

expectations that would apply to Federal agencies. In most respects, 

the information in this section reflects the responsibilities and 

implementation strategies discussed previously in this document (see 

section IV above). Section 2902.5(a) addresses procurement 

specifications and maximizing biobased content when procuring 

designated items. Section 2902.5(b) implements the requirement for 

Federal agencies to develop affirmative procurement programs. Section 

2902.5(c) addresses the preference program component of the affirmative 

procurement programs.



[[Page 70734]]



    Biobased content on items procured should be maximized subject to 

additional considerations. Section 9002(c) requires, with certain 

exceptions discussed above, that Federal agencies, when making 

procurement decisions on items designated in the guidelines, give 

preference to items composed of the highest percentage of biobased 

products practicable, consistent with maintaining a satisfactory level 

of competition. These guidelines propose minimum content levels of 

biobased products in designated items. It is recognized that the 

highest percentage of biobased content may not always result in the 

best item for Federal agencies, since other characteristics, such as 

performance, may not, in all cases, be positively correlated with 

higher content. Therefore, Federal agencies should interpret the 

requirement to mean procuring items with the highest biobased content 

consistent with other desired attributes such as availability, price, 

and performance.

    Performance of designated items is important. USDA believes that 

evidence of performance by a qualifying biobased item in its intended 

use will be a very important factor in Federal agencies' decisions to 

procure that item. In most circumstances, biobased items can be 

manufactured with a blend of components that enable them to meet 

required performance standards. In some circumstances, prior experience 

with product performance or observation of its widespread use elsewhere 

will be sufficient evidence of performance to cause Federal agencies to 

procure the qualifying biobased item. In most other cases, especially 

for new items in the marketplace or for certain users of high 

performance items in Federal agencies, more formal evidence of 

performance may be required. When Federal agencies require more formal 

performance related information for their procurement decision, USDA 

encourages these agencies to request this information from 

manufacturers or vendors of designated items, focusing on performance 

against ASTM, ISO, Federal or military specifications, or other 

industry performance standards.

    It is also important to set minimum requirements for biobased 

content of items at levels which are low enough to allow items produced 

with biobased products to compete with fossil energy based products in 

performance and economics, using current technology. While the statute 

requires Federal agencies, when purchasing designated items, to give 

preference to those that have the highest percentage of biobased 

content, that requirement must be considered in the context of whether 

the product meets required performance standards for the application in 

which it will be used.

    USDA has statutory requirements to meet in designating items for 

preferred procurement. Section 9002 requires USDA to designate items 

that are or can be made with biobased products. In making the 

designation, the Secretary is required to consider, at a minimum, the 

availability of such items and the economic and technological 

feasibility of using such items, including life cycle costs. In 

addition, section 9002 requires the Secretary to provide information on 

availability, relative price, performance, and environmental and public 

health benefits to Federal agencies. No designation of items will be 

made until the above noted requirements are met. Only upon publication 

of a final rule in the Federal Register of designation of an item for 

preferred procurement will manufacturers and vendors of commercial 

products with biobased content that fall within the item definition be 

able to assert preferred procurement status for those products to 

Federal agencies.

    USDA also will utilize the data entered by manufacturers and 

vendors on its Web site, on individual commercial products with 

biobased content, to develop information on availability, relative 

price, performance, and environmental and public health benefits that 

can be extrapolated to the generic item, the scope of which embraces 

those individual commercial products, prior to designating that item. 

This information will be made available to Federal agencies to satisfy 

the additional statutory information requirements (section 

9002(e)(1)(C)) the Secretary is required to provide Federal agencies on 

designated items. Because the primary value of this information to 

Federal agencies is at the specific product level and in the ability to 

compare data across products within a designated item, USDA will 

encourage manufacturers and vendors to voluntarily post this product 

specific information on those products they are offering for preferred 

procurement.

    USDA plans to rely on information from the previously discussed CTC 

study to determine the availability of items. USDA will evaluate 

information on relative price and performance of individual commercial 

products with biobased content, from the voluntary Web site, to develop 

the information on items and products the Secretary must consider in 

designating items and must make available to Federal agencies.

    Information on environmental and public health benefits will be 

developed from voluntary information manufacturers and vendors provide 

on individual products. When voluntarily providing such information to 

USDA, this information must be based on a National Institute of 

Standards and Technology BEES (Building for Environmental and Economic 

Sustainability) analytical tool analysis of the product.

    No designation of an item will be made by USDA until USDA has 

sufficient information to reasonably meet the information requirements 

the Secretary must address, as specified in the statute, and to provide 

the required information to Federal agencies about items designated in 

subsequent regulations. Based on the information considered, USDA will 

publish regulations in the Federal Register designating an item(s) 

under these guidelines. USDA will work to first designate items in 

categories having greatest likelihood of sale to Federal agencies.



Proposed Sec.  2902.6: Funding for Testing



    As explained above, section 9002 requires the Secretary to consider 

specific types of information in determining whether to designate an 

item under these guidelines. Also as explained above, section 9002 

requires that the Secretary provide specific types of information to 

Federal agencies regarding designated items. As a means of obtaining 

some of the required information, section 9002(j) provides to the 

Secretary $1 million per year for each of the fiscal years 2002 through 

2007 to support the testing of biobased products to carry out the 

provisions of the section. Section 9002(j) further provides that the 

Secretary, at her discretion, may ``give priority to the testing of 

products for which private sector firms provide cost sharing for the 

testing.'' 7 U.S.C. 8102(j)(2)(C).

    For the first few years of this program, the Secretary is 

exercising her discretion to test products based on the USDA assessment 

of the best use of these funds to designate items most expeditiously 

under this program. USDA will work first to designate items in 

categories having the greatest likelihood of sale to Federal agencies. 

Additionally, should USDA obtain sufficient data from manufacturers' 

voluntary submissions or from other sources that very limited 

informational gaps exist to delay designation, USDA may target the use 

of these funds to fill in the limited data gaps to expedite designation 

of that item. USDA will enter into arrangements with entities capable 

of conducting tests to conduct tests of biobased content and BEES 

Analyses on



[[Page 70735]]



products identified by USDA as part of the process of gathering such 

information on a sufficient number of products to enable USDA to 

extrapolate such information to the item level. During this period, 

entities are welcome to propose cost-sharing for the testing of such 

items. However, USDA will not consider cost-sharing in deciding what 

products to test. Cost-sharing will be accepted to the extent 

consistent with USDA product testing decisions.

    Once the program has achieved a critical mass of designated items, 

anticipated to occur within the next three years, USDA will exercise 

its discretion to make cost-sharing a more determinative factor in the 

selection of some products for testing. USDA will make some of the 

section 9002(j) funds available for testing of competitively-selected 

products for which private sector firms have offered cost sharing. USDA 

will make a public announcement to that effect at the time and solicit 

cost-sharing proposals. Paragraph 2902.7(b) sets forth how USDA 

proposes to exercise this discretion. USDA will consider cost-sharing 

proposals only for the BEES Analysis and performance testing of 

products. USDA does not intend to consider cost-sharing for testing to 

determine biobased content.

    Cost sharing will be considered first for products of ``small and 

emerging private business enterprises.'' If funds remain to support 

further testing, a second tranche of applicants could be drawn from all 

other producers of biobased items. Proposals will be evaluated and 

assigned a priority rating. Priority ratings will be based on the 

following criteria:

    [sbull] A maximum of 25 points will be awarded a proposal based on 

the market readiness.

    [sbull] A maximum of 20 points will be awarded a proposal based on 

the potential size of the market for that product in Federal agencies.

    [sbull] A maximum of 25 points will be awarded based on the 

financial need, for testing assistance, of the manufacturer or vendor.

    [sbull] A maximum of 20 points will be awarded a proposal based on 

the product's prospective competitiveness in the market place.

    [sbull] A maximum of 10 points will be awarded a proposal based on 

its likely benefit to the environment.

    Projects will be funded in order of declining priority ratings 

(from highest to lowest) until available funds are committed. USDA 

could provide up to 50 percent of the cost of determining the life 

cycle costs and environmental and health effects using the NIST's BEES 

Analysis, up to a maximum of $5,000 of assistance per product. USDA 

could provide up to 50 percent of cost for performance testing, up to 

$100,000 of assistance per product for up to two performance tests 

(measures of performance) per product.

    Pursuant to section 9002(j)(2)(B), USDA will enter into agreements 

with and provide the funds to entities that have the experience and 

special skills to conduct the testing. These entities will use the USDA 

and any private sector cost sharing funds to test the items. Products 

submitted in one year, but not funded for testing in that year, could 

be resubmitted to be considered for cost-sharing in the next year. USDA 

does not intend to provide financial assistance for testing to 

determine biobased content.

    USDA seeks comments on possible methods of providing financial 

assistance for manufacturers and vendors for testing of individual 

commercial products with biobased content that are intended to qualify 

for preferred procurement by Federal agencies under this program.



Proposed Sec.  2902.10: Communicating Information on Qualifying 

Biobased Products



    Section 2902.10 of the proposed guidelines would provide general 

information applicable to the exchange of information regarding 

biobased products. In paragraph (a), we would reiterate that 

manufacturers and vendors of designated items have the responsibility 

to inform Federal procurement officials of items that comply with the 

guidelines, including the biobased content of the product, and 

recommend that Federal agencies, for their part, affirmatively seek 

this information. This paragraph would also point out the informational 

Web site referred to in Sec.  2902.3 as a resource that can be utilized 

by both Federal agencies and manufacturers and vendors.

    Manufacturers and vendors of biobased products that fall within an 

item (generic grouping) that has been designated by regulation for 

preferred procurement under the program are free to market those 

products to Federal agencies while claiming the preferred procurement 

status for the products under the program. Manufacturers and vendors 

must be able to certify to Federal agencies that their products are 

consistent with the definition of biobased product in section 2902.4. 

In addition manufacturers and vendors must be able to present third 

party test results that indicate the biobased products have at least 

the threshold amount of biobased feedstock content specified in the 

designating regulations for the item under which the biobased products 

fit.

    Manufacturers and vendors must use the BEES analytical tool to 

provide information on life cycle costs and environmental and health 

benefits when asked for such information by Federal Agencies. In the 

case of products which are essentially the same formulation, but 

marketed under a variety of brand names, the manufacturers and vendors 

can simply refer to the underlying BEES Analysis data as the basis to 

demonstrate the life cycle costs, rather than conducting a BEES 

Analysis on each branded item. USDA is adopting the BEES Analysis 

method in order to establish a uniform methodology and platform for 

analysis of environmental and health effects and life cycle costs; 

doing so will enable Federal agencies to evaluate BEES results (scores) 

and life cycle costs across biobased products within a designated item.

    When asked for performance data by Federal agencies, manufacturers 

and vendors are required to use test results obtained, for the 

individual products they offer for preferred procurement, from testing 

against industry accepted performance standards, which may include a 

Federal or Military Specification (ASTM, ISO, Military Specifications, 

etc.) for the product, in the use for which it is intended. The test 

must be conducted by a third party in an ASTM/ISO compliant test 

facility.

    In paragraph (d), we would remind manufacturers and vendors that 

any claims regarding health and environmental benefits of their 

products should conform to the Federal Trade Commission (FTC) Guides 

for the Use of Environmental Marketing Claims, 16 CFR part 260. A copy 

can be obtained through FTC's Web site: http//http://www.ftc.gov/ftc/legal/htm.

 As explained in 16 CFR 260.5, any party making a claim concerning 



a product's environmental attribute ``must, at the time the claim is 

made, possess and rely upon a reasonable basis substantiating the 

claim.''



Proposed Sec.  2902.11: Characteristics Required for Obtaining 

Designated Item Status



    Section 9002 envisions giving preference to items composed of the 

highest percentage of biobased products practicable. Hence, to further 

the purposes of section 9002, USDA believes it is important to guard 

against designating items for preferred procurement which contain only 

token amounts of biobased materials. However, for some uses of biobased 

products in the production of a



[[Page 70736]]



designated item, such as in the case of biobased adhesives used in the 

manufacture of furniture, it is recognized that the biobased content in 

the finished item may be relatively small, measured on a content basis. 

In these guidelines, USDA proposes that all qualifying items under this 

program must have at least 5 percent of its total manufactured value 

(measured after manufacture at the location of manufacture) made up of 

biobased product(s). USDA proposes that manufacturers and vendors self 

certify to Federal agencies that designated items meet this 

requirement. Moreover, manufacturers and vendors must be able to verify 

that certification from a third party test if asked to do so by Federal 

agencies or by USDA.

    ASTM International is in the process of finalizing and adopting a 

method for determining biobased content. USDA anticipates that ASTM 

International will adopt a standard prior to USDA publishing its final 

rule. The method under consideration by ASTM International is a 

Radioisotope Standard Method to discriminate between ``old carbon'' 

from fossil resources and ``new carbon'' from renewable resources. A 

measurement of a product's contemporary \14\C/\12\C content is 

determined relative to a standard reference material. Thus, in 

paragraph (c) of proposed Sec.  2902.11, we would identify that ASTM 

method as the standard to be used by manufacturers and vendors in 

certifying biobased content.

    Further, USDA proposes that manufacturers and vendors must utilize 

third party ASTM/ISO compliant test facilities using that testing 

standard method to determine the biobased content of their products 

offered for preferred procurement. Federal agencies and USDA may 

request verification of biobased content from manufacturers and vendors 

for products certified to qualify for preferred procurement.

    In the case of products which are essentially the same formulation, 

but marketed under a variety of brand names, the manufacturers and 

vendors can simply refer to the underlying biobased content test data 

as the basis to demonstrate the biobased content, rather than 

conducting a biobased content test on each branded item.

    USDA is proposing that biobased content be determined based on the 

weight of the biobased material (exclusive of water and other non-

active ingredients, fillers, and diluents) divided by the total weight 

of the product and expressed as a percentage by weight.

    Minimum biobased content requirements used in the proposed 

guidelines refer to the biobased portion of the product itself. For 

example, in a carpet using a biobased material as a carpet backing, the 

minimum biobased content indicated for the carpet refers only to the 

biobased backing. It is understood that the completed carpet, made up 

of several different materials, would have a lower biobased content 

than is specified in these guidelines for the biobased product (the 

carpet backing) itself. Minimum percentages used for various products 

in these guidelines refer to the biobased content of the product (such 

as carpet backing) itself, not to a finished product (the carpet) that 

might be fabricated using both a biobased product and other inputs, 

unless that is otherwise specified.

    Section 2902.11 also would incorporate the filters discussed 

earlier in this preamble to exclude from this program those products 

having mature markets.



Proposed Sec.  2902.12: Items and Minimum Biobased Content



    The biobased products listed in the proposed guidelines would be 

grouped according to category, with each category consisting of one or 

more items; an item developed by a particular manufacturer is referred 

to as a product. That is, an item is made up of individual products and 

a category consists of items. For instance, ``Lubricants and Functional 

Fluids'' is a category. Hydraulic fluids is an item within that 

category, and ``ABC Hydraulic Fluid'' made by the ABC Company is a 

product.

    As noted previously, the items and the indicated biobased content 

of items contained within the categories discussed in this preamble are 

based on the study conducted in 2002 for the USDA Agricultural Research 

Service by CTC. The final report of the study can be viewed at the 

Office of Energy Policy and New Uses, Reporters Building, Room 361, 300 

7th Street, SW., Washington, DC 20024. To arrange for viewing, contact 

Marvin Duncan at 202-401-0532. USDA also has posted the study on its 

informational Web site, http://www.biobased.oce.usda.gov.



    The items discussed below are intended to be the items that will be 

proposed for designation for preferred procurement by Federal agencies 

after the Secretary has sufficient information on availability of the 

items and the economic and technological feasibility of using such 

items, including life cycle costs. The information on availability of 

the items is determined from the CTC study from which the categories, 

items, and proposed minimum biobased content data were developed. 

However, items will not be designated for preferred procurement until 

the additional information required by section 9002 is considered by 

the Secretary. As items are designated for procurement preference, they 

would be added to Sec.  2902.12 of the guidelines.

    Comments proposing a new item should include information similar to 

that found in USDA's initial survey of the industry, including biobased 

products from which the items are derived, item characteristics, likely 

uses of the item, and percentage of biobased content of the items. In 

addition to new items proposed for inclusion in the guidelines, USDA is 

seeking comment on procedural issues, such as a process for proposing 

additional items, the review of such proposals, and what market 

information should be necessary to support the addition or deletion of 

an item. USDA particularly seeks public comment on the proposed 

categories and items, and the reasonableness of the biobased content 

percentages, discussed below.

    Proposed Sec.  2902.12 would contain items, grouped according to 

category, that are or can be produced with biobased products and 

provide the minimum biobased content for each listed item. It is 

anticipated that as the biobased product industry develops, new 

products will enter the market. As necessary, new items will be 

designated. USDA intends to periodically survey the industry to learn 

of new products entering the marketplace and to determine new items for 

designation. While Sec.  2902.12 in these proposed guidelines contains 

no categories or items, given that none have yet been designated for 

procurement preference, the following paragraphs contain a discussion 

of future proposed categories and minimum content levels thus far 

identified. USDA seeks comments on the following categories, items 

(subcategories), minimum content levels based on manufactured value, 

and the minimum biobased content levels.



Adhesives Category



    Biobased adhesives are chemical products used to join or bond two 

or more other materials together. A wide range of agricultural 

materials can be used to make biobased adhesives, including but not 

limited to starch from corn, potatoes, wheat, tapioca, and other 

plants; casein from skimmed milk; soy protein; soybean oil; vegetable 

gums; gelatin; livestock derivatives; tannins from woody biomass; and 

marine animal derivatives.



[[Page 70737]]



    USDA proposes to include in this category both biobased adhesives 

and items embodying those adhesives. Items using such adhesives include 

book bindings, envelopes, stamps, medical application such as tapes and 

alternatives to sutures, doors, windows, paper bonds, corrugated paper 

boxes, lumber, furniture, and more. Biobased pressure sensitive 

adhesives have been developed for clear tape, duct tape, masking tape, 

labels, and a variety of disposable items. Another example of biobased 

adhesives is soy-based products used to glue wood to form finger-

jointed lumber, glulam beams, I-joists, and other engineered wood 

products.



Proposed Minimum Content--Adhesives Category



    Adhesive products are to have a minimum biobased content of 70 

percent by weight of the adhesive. Biobased adhesive additives may also 

be used to reduce the total amount of phenol-formaldehyde and 

isocyanate-containing adhesives used to bond plywood and other wood 

panels. These products and wood products made with these products are 

proposed to qualify when the additive is used to reduce total adhesive 

content of the finished product by at least 25 percent and when the 

minimum content of the additive is at least 70 percent biobased 

material. Finished products in which 90 percent of all of the adhesives 

used in production are biobased would be designated as biobased 

products.



Construction Materials and Composites Category



    The Construction Material Subcategory (or item) includes product 

applications containing biobased adhesives, such as plywood and finger 

jointed lumber; oriented strand board, medium density fiberboard, and 

hardboard; engineered wood building components, e.g., laminated beams, 

trusses, finger jointed lumber, oriented strand lumber; moldings and 

trim; and decorative composites. Construction products include round 

wood; lumber; composites; and plastic-wood composite lumber and panels 

such as plywood, oriented strand board, medium density fiberboard, and 

hardboard that contains agricultural or wood-based materials.

    The Composite Panels Subcategory (or item) is composed of 

nonstructural composite materials such as highly engineered blends of 

recycled paper products or agricultural wastes, biobased resins, and 

color additives can combine to provide a composite and composite 

panels. Product applications include furniture, tabletops, trim, store 

fixtures, awards, plaques, trophies, indoor signs, and other interior 

or nonstructural uses. Composite panel products include panels made 

from straw or other agricultural residues.

    Molded Reinforced Composites subcategory (or item) products, such 

as decorative trim, shingles, or siding, may be made from bioplastic 

resins used to bind inorganic fibers such as fiber glass or 

agricultural fibers such as kenaf. These resins may be made from a 

combination of biobased materials and may be reacted with petro-based 

chemicals to achieve functional properties.

    The Insulating Foams and Films Subcategory (or item) includes 

biobased polyurethane made from a soybean oil polyol, poly-lactides 

made from cornstarch, polyesters made from vegetable oils, and other 

bioplastic materials. Hundreds of products can employ these materials 

ranging from carpet backing to foam cushions; pads for furniture; 

automotive seats and dashboards; molded cases and covers for 

appliances; telephones; computers; and rigid insulating foams used to 

insulate refrigerators, freezers, coolers, and appliances. Each use may 

have different biobased content requirements.

    This item also includes bioplastic rigid and soft foam, used to 

produce such products as fiber and foam insulation. Starch mixtures 

such as aqua gels or vegetable compounds can be added to concrete 

mixture during setting to reduce the density of concrete, and concrete 

mold release agents from vegetable oils are available products.

    The Mixed System Products Subcategory (or item) is composed of 

products where specific component parts are designated as biobased 

(such as carpets and carpet squares with backing, attached pad, or face 

material that is biobased) but other components of the products may be 

from another product subcategory (item) or be non-biobased. The minimum 

content requirement may be applied to the biobased component rather 

than the complete product. An example would be the replacement of a 

portion of petroleum-based urethane for carpet backing with a 

percentage of soybean oil-based urethane.

    In use, these items may include a large percentage of inert fillers 

and extenders which are not counted in computing total product weight. 

When determining the percent biobased content, calculations should be 

made on the weight of the component less excluded materials, and not on 

the weight of the total product.



Proposed Minimum Content--Construction Materials and Composites 

Category



    The minimum biobased content requirement may be based on the weight 

of the biobased component rather than the complete material. USDA is 

providing guidance on the more prevalent products. As subsequent 

regulations to designate items for preferred procurement continue to 

evolve, more content information will be forthcoming. USDA particularly 

welcomes comments on adding additional subcategories to this section to 

more clearly define content requirements. The minimum biobased content 

of each item in this category must be:



------------------------------------------------------------------------

                                                                Minimum

                                                               biobased

                            Items                               content

                                                                  (%)

------------------------------------------------------------------------

Construction material.......................................          85

Composite panels............................................          70

Molded reinforced composites................................          10

Insulating foams and films..................................          15

Components of mixed system products.........................          20

------------------------------------------------------------------------



Fibers, Paper, and Packaging Category



    There is a broad range of agricultural crops, forest biomass, and 

livestock that contributes materials to this category including non-

tree sources such as bamboo, corn stover, low-grade cotton, flax, 

kenaf, cereal and grain straws, sugar cane bagasse, switch grass, 

leaves, and poultry feathers; and wood from forest thinnings, saw dust, 

flour, shavings, chips, grindings, and curls from trees.

    Fibers from biobased sources can be used in the manufacture of 

product containers such as boxes, drums, and pails for the storage or 

shipment of food or manufactured products. Biobased fibers can also be 

used as bulk packaging materials for filler and protection of stored or 

transported goods. Natural biobased fibers are very ductile and 

typically do not splinter. Their properties have been compared to 

carbon and glass fibers for use in fiberglass composites.

    Fiber composites are created when biobased fibers are blended with 

molten plastic in ratios of up to 70 percent fiber by weight to make 

furniture, toys, and other molded items.

    Composite packaging materials use an emerging technology that 

relies on a mix of organic and inorganic materials, such as starch and 

limestone, and sometimes include fibers and coating materials that are 

also biodegradable. These materials often use starch from potatoes, 

corn, or



[[Page 70738]]



other crops, and can sometimes be derived from reclaimed waste streams. 

Recent developments have also allowed for the development of non-rigid 

wrap materials and other food packaging innovations in addition to the 

sandwich ``clamshells'' made from starch and agricultural fibers.

    Woven fiber products represent important uses of biobased fibers. A 

variety of biobased fibers can be spun or woven into items such as 

ropes, textiles, and yarns. For example, flax is a traditional textile 

fiber used to make linen, while other fibers, such as jute, are woven 

to make burlap for bags and coverings.

    Packaging materials can be made from waste fibers described above 

that, if not used in the paper making process, might be sent to a 

landfill.

    Paperboard and packaging products, strong lightweight honeycomb 

panels made from recycled and agricultural fibers, illustrate another 

use of biobased fibers. Panel items can also be made almost entirely 

from cereal straw residue and used in nonstructural applications such 

as furniture, cabinets, store displays, door panels, moldings, and 

other fixtures.

    Items such as pillows and comforters are made from milkweed fibers 

mixed with goose down to create bedding materials.



Proposed Minimum Content--Fibers, Paper, and Packaging Category



    Like the construction category above, this item application is very 

large and each application may have separate content requirements. The 

category may require additional subcategories, or the creation of new 

categories; for instance tree-free paper versus tree-derived paper. In 

this guideline, USDA has listed a few of the more common uses and 

encourages comment on content requirements for a wide range of uses. To 

be included in the biobased fiber, paper, and packaging category, the 

minimum biobased content of each item must be:



------------------------------------------------------------------------

                                                                Minimum

                                                               biobased

                            Items                               content

                                                                  (%)

------------------------------------------------------------------------

Fibers......................................................          90

Fibers composites...........................................          30

Composite packaging materials...............................          30

Woven fiber products........................................          75

Packaging materials.........................................          80

Uncoated printing and writing papers........................          20

Coated printing and writing papers..........................          20

Bristols....................................................          50

Newsprint...................................................          20

Sanitary tissues............................................          30

Paperboard and packaging products...........................          30

Other paper products........................................          50

------------------------------------------------------------------------



Fuel Additives Category



    A variety of fuel additives can be made from agricultural and 

forest materials and can be used to help power vehicles, heat 

buildings, provide heat for steam for industrial process, and other 

applications. Fuel additives can be mixed or diluted with other 

materials or used as an additive to enhance certain properties of a 

fuel.

    Raw material sources for these biobased liquid fuel additive items 

include processed products from agricultural crops such as corn; soy 

bean; rapeseed; canola; animal fat; wood; and crop and processing 

residues such as stalks, manure, used cooking oils, used wood, 

nonrecyclable paper and paper sludge, and hulls.

    Raw material sources for solid fuel additive items include 

agricultural and forest materials such as wood and wood processing 

residues, formed wood residue; nonrecyclable papers, paper sludge, and 

other paper processing residues; grains, grain processing byproducts 

and residues; byproducts or residues from soy, cotton, and sugar 

processing; pelletized residues from livestock production and 

processing, including manures.

    Ethanol is the most widely used biobased fuel additive. It is 

typically made by fermentation of an agricultural product or residue 

and can be used as an oxygenated additive and a source of octane in a 

formulation with other fuels. Another liquid biobased fuel additive is 

biodiesel. Biodiesel is defined as a mono-alkyl ester of vegetable oils 

or animal fats and can be use as a lubricity agent with low-sulfur 

conventional diesel fuel.

    Biobased items that are solid fuels are typically ``formed'' for 

ease of handling into a wide variety of shapes and sizes including 

pellets, rolls, briquettes, and other forms. Combustible binders, which 

may both act as fuels or be blended with other primary fuels, allow the 

fuel to be formed into various shapes and sizes. Biobased and other 

binders, such as resins and propellants, are also used to facilitate 

ignition and combustion. Formed coal fines are one example of a solid 

fuel. Recovered coal fines can be formed into a variety of shapes and 

sizes, e.g., pellets and briquettes, by using a biobased binder such as 

proteins or sugars derived from soy or milk, or a combination binder 

composed of biobased materials and other chemicals. Biobased binders 

typically comprise only a small part of the total solid fuel and can be 

derived from dairy byproducts and other agricultural sources. The 

binder would be considered a biobased fuel additive.

    As noted previously, section 9002 and these guidelines do not apply 

to the procurement of motor vehicle fuels or electricity.



Proposed Minimum Content--Fuel Additives Category



    To be included in this fuel additives category, the minimum 

biobased content of each item must be:



------------------------------------------------------------------------

                                                                Minimum

                                                               biobased

                            Items                               content

                                                                  (%)

------------------------------------------------------------------------

Solid fuels.................................................           5

Liquid fuel additives.......................................          80

------------------------------------------------------------------------



Landscaping Materials, Compost, and Fertilizer Category



    This category includes materials and items associated with 

landscaping materials and compost. Many biobased items, such as 

construction materials, coatings, paper, fibers, and sorbents are 

compostable and reusable as landscaping materials.

    Various agricultural crops and residues, including straws and short 

rotation woody crops, are the sources of landscaping materials. For the 

purposes of this category, woody materials are those obtained from 

activities such as forest thinning, fuel reduction in plantation 

stands, regenerated forest stands, intensively cultivated short 

rotation woody stands (i.e., less than 10 years old), or from wood 

residue or recovered wood products.

    Compost is derived from a managed process that decomposes and 

transforms organic material into a soil-like item called humus. Food 

scraps, leaves, paper, wood, livestock manures, and agricultural 

residues are organic materials that can be composted. Composting 

reduces the amount of waste that may go to a landfill and it produces a 

soil amendment that can improve the texture and fertility of the soil. 

Mulches and composted materials can be used to control moisture and 

nutrients in soils and reduce the potential for erosion. Other 

materials, such as agricultural and animal wastes, serve as 

fertilizers.

    Items include landscaping materials such as bark, chips, mulch, and 

pine needles. Composted materials provide fertilizer and ground cover. 

These



[[Page 70739]]



materials may also be coated with biobased materials to provide color, 

retard biodegradation, or reduce loss from wind or water erosion.

    Agricultural and animal wastes are fertilizers and may be in 

composted form or, in the case of manures, may be applied as 

fertilizers without further composting or processing.



Proposed Minimum Content--Landscaping Materials, Compost, and 

Fertilizer Category



    To be included in the landscaping materials and compost category, 

the minimum biobased content of each item must be:



------------------------------------------------------------------------

                                                                Minimum

                                                               biobased

                            Items                               content

                                                                  (%)

------------------------------------------------------------------------

Landscaping materials.......................................         100

Compost.....................................................         100

Fertilizer..................................................          80

------------------------------------------------------------------------



Lubricants and Functional Fluids Category



    Biobased lubricants and functional fluids are important materials 

used to reduce friction between moving surfaces or between moving and 

stationary surfaces in engines and other machinery, to reduce wear and 

dissipate heat on those surfaces, and to provide other benefits such as 

corrosion protection. Items like 2-cycle engine oils can be formulated 

from biobased sources. These formulated lubricants are added to fuels 

used in 2-cycle engines found in lawnmowers, chainsaws, string 

trimmers, and other small machinery.

    Biobased functional fluids are used as items that transfer heat 

and/or pressure to or from surfaces, reduce friction in machining 

operations, provide electrical insulation, and for many other purposes. 

There is a broad range of biobased lubricant and functional fluid 

items, each carefully designed to meet particular performance needs and 

applications. These materials often need to be replaced on a routine 

schedule to maintain their expected performance.

    Biobased lubricants and functional fluids are typically made from 

multiple components, including one or more base stocks plus additives 

that enhance performance or extend the life of the item. A variety of 

agricultural-based oils can be used as biobased lubricants and 

functional fluids, including but not limited to canola, corn, rapeseed, 

soybean, sunflower, other plant materials, and animal fats. The base 

oil used must have sufficient natural or enhanced stability to be used 

as base stock for biobased lubricants. Biobased items in this category 

can be base stock (the starting material into which additives and other 

materials are blended to make the final formulated product), lubricant 

or functional fluid additive (materials that are used for specific 

performance benefits such as lower pour point, increased flash point, 

greater extreme pressure properties, a desired viscosity, or reduced 

foam), or formulated lubricant or functional fluid (the final product 

including base stock and all additives).

    Vehicles, heavy machinery, and mobile equipment use lubricant items 

such as crankcase oils and greases, and functional fluids such as 

transmission fluids, coolants, power steering fluids, brake fluids, and 

others. Industrial equipment uses for lubricants include metal working 

fluids (cutting and drilling oils/lubricants, stamping and forming 

lubricants), hydraulic fluids, and process fluids (heat transfer and 

dielectric fluids). Total loss lubricants are released directly into 

the environment in such applications as rail and flange, wire rope, and 

chain saw lubricants; concrete and asphalt form release fluids; and 2-

cycle engine oils.

    Biobased lubricants can include bar, chain, and sprocket oils or 

general purpose lubricants used for general cleaning, lubrication, and 

corrosion prevention of metal parts including wheels, bearings, gears, 

rollers, chains, hinges, hand tools, guns, and sporting equipment.

    Biobased hydraulic fluid items can be used in construction 

equipment, industrial pumps, and other equipment, as well as in 

specialty uses where incidental food contact may occur. These specialty 

fluids can also be used in transmission systems of vehicles and other 

transportation equipment.

    Biobased functional fluid items include the fluids used to 

lubricate and cool equipment/metals and nonmetal parts during cutting 

and parts fabrication, as well as drilling and machining operations.

    Biobased functional fluids can be used for specialty purposes items 

such as mold release agents that are applied to wood, metal, or plastic 

forms prior to pouring concrete to facilitate the removal of forms 

after concrete has cured, or to foundry molds prior to pouring the 

foundry metal to facilitate the removal of metal parts from the molds. 

These biobased items can also be used as dielectric fluids that are 

used in electric transformers to provide insulation and to dissipate 

heat generated by the transmission of electric current.



Proposed Minimum Content--Lubricants and Functional Fluids Category



    To be included in this lubricants and functional fluids category, 

the minimum biobased content of each item must be:



------------------------------------------------------------------------

                                                                Minimum

                                                               biobased

                            Items                               content

                                                                  (%)

------------------------------------------------------------------------

Crankcase oils (water cooled engines).......................          10

Crankcase oils (air cooled engines).........................          50

2-cycle engine oils.........................................          50

Fifth-wheel grease..........................................          40

Automotive and other metal complex grease...................          25

Total loss lubricants (wire rope, bar-chain, etc.)..........          50

Turbine and other industrial lubricants.....................          50

Penetrating oils............................................          50

General purpose and other...................................          90

Hydraulic, power steering, transmission fluids..............          50

Brake fluids................................................          20

Cutting, drilling, and tapping oils (neat use)..............          50

Metal working concentrates (for dilution)...................          30

Forming pastes and extreme pressure stamping................          30

Concrete and asphalt release................................          70

Metal foundry and mold release..............................          50

Transformer oil and dielectric fluids.......................          70

------------------------------------------------------------------------



Plastics Category



    Most plastics are made from petroleum-based monomers and polymers. 

Biobased plastics from renewable resources are sometimes biodegradable 

and have positive life-cycle benefits. Biobased plastics can be derived 

from a wide variety of agricultural and forest materials in the form of 

starch, cellulose, and other polymers or synthesized from plant oil and 

process byproduct monomers.

    Biobased plastic polymers include cellulose, the most plentiful 

carbohydrate since 40 percent of all organic matter in the world is 

cellulose; starch, found in corn, potatoes, wheat, tapioca, and other 

plants can be used for such nonfood items as paper, cardboard, textile 

sizing, and adhesives; collagen, the most abundant protein found in 

mammals, including gelatin used to make sausage casings, capsules for 

drugs and vitamin preparations, and other miscellaneous industrial 

applications, including photography; and casein, a commercial product 

derived mainly from milk, used in adhesives, binders, protective 

coatings, and other biobased items. Corn, soy, and wheat proteins are 

abundant and can be



[[Page 70740]]



used to make adhesives and coatings for paper and cardboard. Polyesters 

are produced by bacteria through fermentation processes and are used in 

biomedical applications.

    The plastic materials made with biobased monomers, such as plant 

oils, propane diol, and lactic acid, can be made to closely resemble 

the molecular structures of petroleum-based plastics and provide 

particular performance and application benefits, e.g., thermoplastic or 

thermoset characteristics, pressure sensitivity, elastomeric, or other 

characteristics. When used for disposable items such as food packaging, 

the biobased plastic packaging can be fully compostable.

    Used in durable goods for insulation and cushioning, biobased 

plastics may be rigid for panels in appliances, flexible in cushions, 

or molded for automotive dashboards, for example. Examples of 

biodegradable plastic films are biofilms, plastic films made 

biodegradable by formulation with starch. Examples of durable films and 

coatings are components in durable goods such as automotive and 

construction equipment, tools, electrical equipment, and appliances. 

Water-soluble polymers are biobased items used in wastewater facilities 

and can help mining and heavy industry clean heavy metals from their 

wastewater. Examples of biodegradable/compostable molded plastic items 

are table flat ware, knives, forks, and spoons. Examples of durable 

molded plastic items and composites using biobased resins are thermoset 

automotive parts and equipment hoods and doors and access panels for 

farm and industrial equipment. Examples of molded composite items using 

biobased fibers are automotive parts combining petroleum-based resins 

with natural fibers, such as interior door panels and trunk liners. 

Examples of synthetic fibers from biobased raw materials are synthetic 

fibers, similar in function to nylon, woven into various textiles such 

as carpeting.



Proposed Minimum Content--Plastics Category



    To be included in this bioplastics and biopolymers category, the 

minimum biobased content of each item must be:



------------------------------------------------------------------------

                                                                Minimum

                                                               biobased

                            Items                               content

                                                                  (%)

------------------------------------------------------------------------

Biodegradable foams.........................................          50

Durable foams...............................................          15

Biodegradable films.........................................          25

Durable films and coatings..................................          20

Water soluble polymers......................................          50

Compostable molded products.................................          75

Molded plastics and composites/biobased resins..............          10

Molded composites/biobased fibers...........................          20

Synthetic fibers............................................          50

------------------------------------------------------------------------



Paints and Coatings Category



    Paints and other types of coatings such as stains, varnishes, and 

sealants can be derived from agricultural materials. These coatings 

enhance the appearance and protect the materials onto which they are 

applied. The protective function includes reducing corrosion, water 

infiltration, weathering from sun and wind exposure, and other damage. 

Biobased paints and coatings are important alternatives to traditional 

paints and coatings that are derived from petroleum-based chemicals and 

metal pigments.

    A wide variety of agricultural materials can be used to produce 

items for biobased paint and coatings applications, including: xanthan 

gum to help thicken latex paints and coatings, and to uniformly suspend 

zinc, copper, and other metal additives in corrosion control coatings; 

cellulose esters and ethers can be used to make lacquers and paints; 

guayule derived epoxy-amine can be used to make coatings for metal 

panels that help protect the metal from corrosion during exposure to 

fog and salt; corn, soy, wheat, and other proteins are used to make 

coatings for paper and cardboard; and epoxidized linseed oil and 

soybean oil can be used as plasticizers, as well as intermediate 

chemicals in the manufacture of paints.

    Biobased paints and coatings have a wide range of item uses that 

include protection of seeds to enhance germination, marine coatings, 

concrete and wood sealers, stains, corrosion inhibitors, and polishes. 

Architectural coatings made from soybean and linseed oils constitute a 

significant portion of the coatings market. Industrial coatings made 

from vegetable oils have been the mainstay in architectural and 

industrial paints for corrosion prevention, weatherability, and ease of 

application.



Proposed Minimum Content--Paints and Coatings Category



    To be included in the paints and coatings category, the minimum 

biobased content of each item must be:



------------------------------------------------------------------------

                                                                Minimum

                                                               biobased

                            Items                               content

                                                                  (%)

------------------------------------------------------------------------

Formulated product..........................................          20

------------------------------------------------------------------------



Solvents and Cleaners Category



    Biobased solvents and cleaners are widely used as cleaners and de-

greasers in manufacturing and other processes and as ingredients in 

adhesives, paints, and coatings. Solvent and cleaner applications are 

broad and include alternatives to petroleum chemicals such as mineral 

spirits, ketones, acetone, trichloroethylene, xylene, toluene, and 

methylene chloride. As a cleaning item, uses include fabric and textile 

cleaning; fruit and vegetable cleaning; removal of grease, tar, oil, 

stains, paints from concrete and metal surfaces; paint stripper from 

metals and wood; carpet and upholstery cleaner; solvent for inks, 

paints; agricultural chemicals such as fertilizers, herbicides and 

pesticides; graffiti remover; and industrial parts cleaning. Some 

biobased solvents may also be used as carrier solvents for paints, 

inks, lotions, insect repellents, polishes, and other uses.

    Biobased solvents and cleaners are made from renewable agricultural 

materials including crops and livestock.

    Diluent items made from soybean oil, linseed oil, and tung oil can 

reduce the viscosity of a paint or coating. These diluents can act as 

both a solvent and a resin, thus eliminating the need for volatile 

organic compounds (VOCs). These solvents can be used in a variety of 

specialty applications such as metal finishing and ink formulation.

    Parts cleaning compounds can contain one or more biobased solvents 

that are formulated with other performance additives such as 

surfactants, biocides, and rheology agents. These items are used in 

manufacturing and fabrication operations for cleaning parts prior to 

assembly, or in repair operations such as automotive shops or jet 

aircraft engine repair. Printing ink removers can be formulated items 

used for the removal of ink from printing presses and other printing 

equipment, such as press and blanket washes and screen cleaners. 

Adhesive/mastic removers are generally formulated items designed to 

remove adhesives or mastics from machinery used in gluing applications 

or from surfaces where an adhesive or mastic has been applied, such as 

with tile removal. Paint strippers are generally formulated items 

designed to remove paints from wood or metal surfaces. Asphalt removal 

and release materials are formulated or neat solvent



[[Page 70741]]



items used to remove built up asphalt from machinery, or they can be 

used as a pre-spray for dump trucks to prevent sticking of asphalt to 

truck beds.

    Hard surface cleaners include general purpose formulated items for 

the removal of greases and other dirt from metal, tile, glass, 

plastics, and hard surfaces. Glass cleaners are generally formulated 

items for the removal of dirt from glass surfaces with minimal or no 

film residues. Food machinery cleaners are formulated items used to 

remove accumulated greases and soils from metal and non-metal parts of 

food machinery (meat saws and slicers, vent fans, ovens, cooking vats, 

etc.), and should be approved for incidental food contact or certified 

by the manufacturer as safe. Textile cleaners are formulated items for 

the removal of heavy stains from textiles prior to institutional 

cleaning (dry cleaning or laundry). Graffiti removers are formulated 

items for the removal of graffiti (spray paint, markers, crayons, etc.) 

from metal and or wood surfaces. Concrete, stone, and masonry cleaners 

are formulated items that remove oil, grease, soot, and other soils 

from concrete driveways/sidewalks, stone, and masonry.

    Hand cleaners and soaps are formulated items for the removal of 

heavy greases and dirt from skin. Laundry aids include stain removers 

and pre-washes for the treatment of stains on fabrics. Wood cleaners 

and polishes are formulated items for cleaning and polishing of wood 

surfaces and furniture.

    Some biobased solvents are used as carrier solvents for paints, 

inks, lotions, insect repellents, polishes, and other uses.



Proposed Minimum Content--Solvents and Cleaners Category



    To be included in this solvents and cleaners category, the minimum 

biobased content of each item must be:



------------------------------------------------------------------------

                                                                Minimum

                                                               biobased

                            Items                               content

                                                                  (%)

------------------------------------------------------------------------

Formulated product..........................................          50

Neat product (concentrate)..................................         100

------------------------------------------------------------------------



Sorbents Category



    Biobased sorbents are materials that are used to take up and hold 

liquids. A wide range of agricultural and forest materials can be used 

as biobased sorbents, including but not limited to wool, cotton and 

cotton linters, vegetable starch, kenaf, and agricultural residues such 

as corn stover and peanut hulls. The range of items produced includes 

products to collect oil and other environmental spills, collect blood 

and other fluids in medicinal and surgical applications, collect urine 

in diapers and incontinence products, and for animal bedding (including 

wood chips).

    Sorbents can be placed in items such as containers, packages, 

gauzes, or other carriers to create a sorbent system. This aids in 

handling of the sorbent and application of the sorbent at a location to 

achieve greatest benefit. The sorbent carrier may be of a material 

other than a biobased item. For the purposes of this category, the 

biobased material is the ``active'' part of the sorbent system. 

Biobased items in this category must address the function of the entire 

product, e.g., the sorbent itself as well as the casing or framework 

holding or enclosing the sorbent.

    Plant starch contained within a cotton bag is an illustration of a 

sorbent system. While the plant starch is not the end product, it is 

the ``active'' ingredient in these sorbent systems. The USDA 

Agricultural Research Service developed a patented sorbent gel that 

would be a sorbent system. The gel is capable of absorbing hundreds of 

times its own weight in water and has been used in such items as seed 

coatings, wound dressings, automobile fuel filters, plastic barriers 

used at construction sites, and, most notably, in disposable diapers.



Proposed Minimum Content--Sorbents Category



    The biobased sorbents product category is organized as two broad 

groups of items: sorbents and sorbent systems. A sorbent system 

involves the use of a sorbent (active ingredient) in combination with a 

non-active carrier or an active carrier. For example a disposable 

diaper is a carrier for a specialized absorbent material, which is the 

sorbent. To be included in the sorbents category, the minimum biobased 

content of each item must be:



------------------------------------------------------------------------

                                                                Minimum

                                                               biobased

                            Items                               content

                                                                  (%)

------------------------------------------------------------------------

Sorbents....................................................          90

Sorbent systems.............................................          75

------------------------------------------------------------------------



Plant and Vegetable Inks Category



    Here the category and the item are one and the same. Plant and 

vegetable oils can be used to make a wide variety of biobased inks. 

Over 90 percent of all U.S. daily newspapers use at least some soy ink, 

made by blending soybean oil with pigments, resins, and waxes to make 

either black or color ink. Unlike petroleum inks, soy ink does not 

release VOCs into the atmosphere upon drying. Newspapers printed with 

soy ink are easier to recycle.

    In 1994, the U.S. Congress enacted the ``Vegetable Ink Printing Act 

of 1994,'' Public Law 103-348, mandating that, when technologically 

feasible and price competitive, Federal lithographic printing be 

performed using ink containing minimum percentages of plant and 

vegetable oil. Plant and vegetable inks are not considered to be in 

mature markets because plant and vegetable inks did not have 

significant national market penetration prior to 1972.

    Biobased inks can be provided in black and a variety of colors. 

These inks can be used to print a broad range of documents, including 

newspapers, magazines, brochures, business cards, and reports. The inks 

can also be used with a variety of specialty applications including 

stencils, textiles, labeling, as well as pens and other writing 

instruments.



Proposed Minimum Content--Plant and Vegetable Inks Category



    To be included in the inks category, the minimum biobased content 

of each item must be:



------------------------------------------------------------------------

                                                                Minimum

                                                               biobased

                    Items by application                        content

                                                                  (%)

------------------------------------------------------------------------

News inks--black............................................          40

News inks--color............................................          30

Sheet-fed inks..............................................          20

Forms inks..................................................          20

Heat-set inks...............................................          10

Specialty inks..............................................          20

------------------------------------------------------------------------



VI. Plan for Future Development of Voluntary Labeling Program



    Section 9002(h) directs USDA to establish a voluntary labeling 

program for biobased items. USDA will address requirements for the 

labeling program in a future rulemaking. However, in order to signal 

USDA thinking in this regard, the potential parameters of the labeling 

program are described here.

    It is anticipated the labeling program will build on the 

requirements to qualify for preferred procurement of biobased items 

discussed in this current proposed regulation. Biobased products that 

qualify for preferred procurement would be eligible to qualify for use 

of the ``U.S.D.A. Certified Biobased Product'' label. Two additional 

criteria would determine eligibility to use the label. First, an 

analysis of life cycle costs and health benefits of the product would 

be required using NIST's BEES



[[Page 70742]]



(Building for Environmental and Economic Sustainability) analytical 

tool. This analysis would be conducted by NIST or by a third party 

authorized by NIST to conduct the BEES Analysis. Second, the product 

would have passed one or more tests against applicable ASTM, 

International Organization for Standardization (an international 

standards setting organization identified by the acronym ISO), Federal 

or military specifications, or industry performance standards by a 

third party ASTM/ISO compliant testing facility, and results of those 

tests would be available to Federal procurement officials.

    USDA seeks comments on the potential direction of future regulation 

regarding a voluntary program for use of the label by manufacturers and 

vendors of biobased products and on the possibility of assessing a user 

fee to support the labeling program.



VII. Regulatory Information



A. Executive Order 12866, Regulatory Planning and Review



    It is estimated the proposed rule, when finalized, will not have an 

annual effect on the economy of $100 million or more. This program will 

have only a relatively small effect on the economy for the foreseeable 

future. This rule does not propose to designate any items. Successive 

items will be designated for preferred procurement through subsequent 

rulemakings over a period of at least several years. The industry, 

itself, is still very small. Although this program is intended to spur 

development of the industry, that is likely to occur only over many 

years. Each time an item is proposed for designation, USDA will 

evaluate the economic effect of that designation, as well as the 

cumulative effect of that and previous item designations.

    For the above reasons, this rule has been determined to be not 

significant for purposes of Executive Order 12866 and, therefore, has 

not been reviewed by the Office of Management and Budget.



B. Regulatory Flexibility Act



    When an agency issues a rulemaking proposal, the Regulatory 

Flexibility Act (RFA), 5 U.S.C. 601-612, requires the agency to 

``prepare and make available for public comment an initial regulatory 

flexibility analysis'' which will ``describe the impact of the proposed 

rule on small entities.'' 5 U.S.C. 603(a). Section 605 of the RFA 

allows an agency to certify a rule, in lieu of preparing an analysis, 

if the proposed rulemaking is not expected to have a significant 

economic impact on a substantial number of small entities.

    Although this program ultimately may have a direct impact on a 

substantial number of small entities, USDA has determined that this 

proposed rule will not have a direct significant economic impact on a 

substantial number of small entities. This rule will affect directly 

primarily Federal agencies. Private sector manufacturers and vendors of 

biobased products voluntarily may provide information to USDA through 

the means set forth in this proposed rule. However, the proposed rule 

imposes no requirement on manufacturers and vendors to do so, and does 

not differentiate between manufacturers and vendors based on size. USDA 

does not know how many small manufacturers and vendors may opt to 

participate at this stage of the program.

    As explained above, when USDA issues a proposed rulemaking to 

designate items for preferred procurement under this program, USDA will 

assess the anticipated impact of such designations, including the 

impact on small entities. USDA anticipates that this program will 

impact small entities which manufacture or sell biobased products. For 

example, once items are designated, this program will provide 

additional opportunities for small businesses to manufacture and sell 

biobased products to Federal agencies. This program also will impact 

indirectly small entities that supply biobased materials to 

manufacturers. Additionally, this program may decrease opportunities 

for small businesses that manufacture or sell nonbiobased products or 

provide components for the manufacturing of such products. Again, USDA 

cannot assess these anticipated impacts on small entities until USDA 

proposes items for designation. This rule does not propose to designate 

any items.

    The proposed rule will directly impact small entities by 

implementing a cost-sharing program which gives first consideration to 

proposals for products of ``small and emerging business enterprises.'' 

Submission of a proposal is voluntary and not limited to small 

entities. The direct impact would be beneficial for those entities 

whose products are selected for cost-sharing. Because of the limited 

amount of funds available for cost-sharing, the proposed ceilings on 

cost-sharing, and the anticipated breadth of any competition (not 

limited to a particular manufacturing sector and open to other than 

small entities), USDA does not anticipate that this cost-sharing 

competition would have a significant economic impact on a substantial 

number of small entities.

    Accordingly, USDA hereby certifies that this proposed rule will not 

have a significant economic impact on a substantial number of small 

entities. USDA invites comments from members of the public who believe 

that the proposed rule will have a significant economic impact on a 

substantial number of small entities.



C. Executive Order 12630



    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



    This proposed rule has been reviewed in accordance with Executive 

Order 12988, Civil Justice Reform. This proposed 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



    This proposed rule does not have sufficient federalism implications 

to warrant the preparation of a Federalism Assessment. Provisions of 

this proposed 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 proposed 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



    For the reasons set forth in the Final Rule Related Notice for 7 

CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is 

excluded from the scope of the Executive Order 12372 which requires 

intergovernmental consultation with State and local officials. This 

program does not directly affect State and local governments.



H. Executive Order 13175



    The policies contained in this rulemaking do not have tribal 

implications and thus no further action is required under Executive 

Order 13175.



[[Page 70743]]



I. Paperwork Reduction Act



    In accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 

chapter 35, and the implementing Office of Management and Budget (OMB) 

regulations in 5 CFR part 1320, USDA has submitted the information 

collections contained in this proposed rule to the OMB for review under 

section 3507(d) of the Act. Comments addressing the proposed 

information collections should be submitted to the Office of 

Information and Regulatory Affairs of OMB, Attention: Desk Officer for 

Agriculture, Margaret Malanoski, 725 17th Street, NW., Room 10202, 

Washington, DC 20503.

    Title: Guidelines for Designating Biobased Products for Federal 

Procurement

    Abstract: USDA will collect information from biobased product 

manufacturers and vendors on a voluntary basis to support a website 

maintained by USDA for the use of those parties, as well as the use of 

Federal agencies and the public. Information to be requested will 

include identification of products offered for preferred procurement 

within a designated item, contact information for the manufacturer or 

vendor, and demographic information about the manufacturer or vendor 

that will assist Federal agencies in reporting on the performance of 

the preferred procurement program. In addition, information will be 

sought regarding availability of products within an item considered for 

designation; relative prices of the products; performance of the 

products against industry standards such as ASTM, ISO, Federal or 

military specifications, or other standards; and environmental and 

public health benefits using NIST's BEES analytical tool.

    This information may be included on the website or a hotlink may be 

established to manufacturers' or vendors' websites to access the 

information. The information sought for this voluntary website is 

envisioned to be non-proprietary. Should proprietary information be 

provided, the website will be password protected making that accessible 

only to USDA, Federal agencies, and to the manufacturer or vendor that 

provided the information.

    Estimate of respondent burden: Public reporting burden for the 

collection of information is estimated to average 50 hours per product. 

Reporting is voluntary on the part of manufacturers/vendors of biobased 

products.

    Respondents: Biobased product manufacturers and vendors.

    Estimated annual number of respondents: 200.

    Estimated number of responses per respondent: 1.

    Estimated total annual burden hours on respondents: 10,000.

    USDA invites written comments on:

    (a) Whether the proposed collection of information is necessary for 

the proper performance of the functions of the agency, including 

whether the information will have practical utility;

    (b) The accuracy of the agency's estimate of the burden of the 

proposed collection of information, including the validity of the 

methodology and assumptions used;

    (c) Ways to enhance the quality, utility, and clarity of the 

information to be collected; and

    (d) Minimizing the burden of the collection of the information on 

those who are to respond, including through the use of appropriate 

automated, electronic, mechanical, or other technological collection 

techniques or other forms of information technology.



List of Subjects in 7 CFR Part 2902



    Biobased products, Procurement.



    For the reasons stated in the preamble, the Department of 

Agriculture proposes to amend 7 CFR chapter XXIX as follows:



CHAPTER XXIX--OFFICE OF ENERGY POLICY AND NEW USES, DEPARTMENT OF 

AGRICULTURE



    1. The chapter heading of chapter XXIX is revised to read as set 

forth above.

    2. A new part 2902 is added to chapter XXIX to read as follows:



PART 2902--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL 

PROCUREMENT



Subpart A--General

Sec.

2902.1 Purpose and scope.

2902.2 Applicability.

2902.3 USDA guidance on item availability and procurement.

2902.4 Definitions.

2902.5 Preferred procurement program.

2902.6 Funding for testing.

Subpart B--Biobased Product Eligibility for Federal Preference

2902.10 Communicating information on qualifying biobased products.

2902.11 Characteristics required for obtaining designated item 

status.

2902.12 Items and minimum biobased content.



    Authority: 7 U.S.C. 8102.



Subpart A--General





Sec.  2902.1  Purpose and scope.



    (a) The purpose of the guidelines in this part is to assist Federal 

agencies in complying with the requirements of section 9002 of FSRIA, 7 

U.S.C. 8102, as they apply to the procurement of the items designated 

in subpart B of this part.

    (b) The guidelines in this part designate items that are or can be 

produced with biobased products and whose procurement by Federal 

agencies will carry out the objectives of section 9002 of FSRIA.





Sec.  2902.2  Applicability.



    (a) The guidelines in this part apply to all procurement actions by 

Federal agencies involving items designated by USDA in this part, where 

the Federal agency purchases $10,000 or more worth of one of these 

items during the course of a fiscal year, or where the quantity of such 

items or of functionally equivalent items purchased during the 

preceding fiscal year was $10,000 or more. The $10,000 threshold 

applies to procuring agencies as a whole rather than to agency 

subgroups such as regional offices or subagencies of a larger 

department or agency.

    (b) The guidelines in this part do not apply to:

    (1) Any procurement by any Federal agency that is subject to 

regulations of the Administrator of the Environmental Protection Agency 

under section 6002 of the Solid Waste Disposal Act (40 CFR part 247), 

to the extent that the requirements of this part are inconsistent with 

such regulations; or

    (2) The procurement of motor vehicle fuels or electricity.

    (c) FSRIA section 9002(c)(1) requires Federal agencies to procure 

designated items composed of the highest percentage of biobased 

products practicable, consistent with maintaining a satisfactory level 

of competition, considering such guidelines. Federal agencies may 

decide not to procure such items if they are not reasonably priced or 

readily available or do not meet specified or reasonable performance 

standards.





Sec.  2902.3  USDA guidance on item availability and procurement.



    An informational USDA website implementing section 9002 can be 

found at: http://www.biobased.oce.usda.gov. USDA will maintain a 



voluntary web-based information site for manufacturers and vendors of 

designated items produced with biobased products and Federal agencies. 

Through this website, USDA



[[Page 70744]]



intends to provide information as to the availability, relative price, 

performance and environmental and public health benefits of the 

designated items. USDA encourages manufacturers and vendors to provide 

product, business contacts, and product information for designated 

items. USDA also encourages Federal agencies to utilize this website to 

obtain current information on designated items, contact information on 

manufacturers and vendors, and access to information on product 

characteristics relevant to procurement decisions.





Sec.  2902.4  Definitions.



    These definitions apply to this part:

    Agricultural materials. Agricultural-based, including plant, 

animal, and marine materials, raw materials or residues used in the 

manufacture of commercial or industrial, nonfood/nonfeed products.

    ASTM International. ASTM International, a nonprofit organization 

organized in 1898, is one of the largest voluntary standards 

development organizations in the world with about 30,000 members in 

over 100 different countries. ASTM provides a forum for the development 

and publication of voluntary consensus standards for materials, 

products, systems, and services.

    BEES. An acronym for ``Building for Environmental and Economic 

Sustainability,'' an analytic tool used to determine the environmental 

and health benefits and life cycle costs of items, developed by the 

U.S. Department of Commerce's National Institute of Standards and 

Technology, with support from the U.S. Environmental Protection Agency, 

Office of Pollution Prevention and Toxics (BEES 3.0, Building for 

Environmental and Economic Sustainability Technical Manual and User 

Guide, NISTIR 6916, National Institute of Standards and Technology, 

U.S. Department of Commerce, October 2002). Also, see http://www.bfrl.nist.gov/oae/software/bees_USDA.html

 for a discussion of how 



biobased feedstocks are addressed in the BEES Analysis.

    Biobased components. Any intermediary materials or parts that, in 

combination with other components, are functional parts of the biobased 

product.

    Biobased content. The weight (or volume, where appropriate) of the 

biobased material in the product divided by the total weight (or 

volume, where appropriate) of the product, times 100 to yield the 

percent of biobased content. Total product weight may be calculated 

exclusive of water or other inactive ingredients, fillers and diluents.

    Biobased product. A product determined by the Secretary to be a 

commercial or industrial product (other than food or feed) that is 

composed, in whole or in significant part, of biological products or 

renewable domestic agricultural materials (including plant, animal, and 

marine materials) or forestry and materials.

    Biological products. Products derived from living materials other 

than agricultural or forestry materials.

    Designated item. A category of products identified in Sec.  2902.12 

that is eligible for the procurement preference established under 

section 9002 of FSRIA.

    Diluent. A substance used to diminish the strength, scent, or other 

basic property of a substance.

    Engineered wood products. Products produced with a combination of 

wood, food fibers and adhesives.

    Federal agency. Any executive agency or independent establishment 

in the legislative or judicial branch of the Government (except the 

Senate, the House of Representatives, the Architect of the Capitol, and 

any activities under the Architect's direction).

    Filler. A substance added to a product to increase the bulk, 

weight, viscosity, strength, or other property.

    Forest thinnings. The removal of trees from a dense forest, 

primarily to improve growth, enhance forest health, or recover 

potential mortality. To recover potential mortality means to remove 

trees that are going to die in the near future.

    Forestry materials. Materials derived from the practice of planting 

and caring for forests and the management of growing timber. Such 

materials must come from short rotation woody crops (less than 10 years 

old), sustainably managed forests, wood residues, or forest thinnings.

    Formulated product. A product that is prepared or mixed with other 

ingredients, according to a specified formula and includes more than 

one ingredient.

    FSRIA. The Farm Security and Rural Investment Act of 2002, Pub. Law 

107-171.

    Ingredient. A component; part of a compound or mixture; may be 

active or inactive.

    ISO. The International Organization for Standardization, a network 

of national standards institutes from 145 countries working in 

partnership with international organizations, governments, industries, 

business, and consumer representatives.

    Neat product. A product that is made of only one ingredient and is 

not diluted or mixed with other substances.

    Relative price. The price of a product as compared to the price of 

other products on the market that have similar performance 

characteristics.

    Residues. That which remains after a part is taken, separated, 

removed, or designated; a remnant; a remainder; and, for this purpose, 

is from agricultural materials, biological products, or forestry 

materials.

    Secretary. The Secretary of the United States Department of 

Agriculture.

    Small and emerging private business enterprise. Any private 

business that employs 50 or fewer employees and has less than $1 

million in projected annual gross revenues.

    Sustainably managed forests. Practice of a land stewardship ethic 

that integrates the reforestation, management, growing, nurturing, and 

harvesting of trees for useful products while conserving soil and 

improving air and water quality, wildlife, fish habitat, and 

aesthetics.





Sec.  2902.5  Preferred procurement program.



    (a) Within 1 year after the publication date of each designated 

item, Federal agencies that have the responsibility for drafting or 

reviewing specifications for items procured by Federal agencies shall 

ensure that their specifications require the use of designated items 

composed of biobased products, consistent with the guidelines in this 

part. The biobased content of a designated item may vary considerably 

from product to product based on the mix of ingredients used in its 

manufacture. In procuring designated items, the percentage of biobased 

content should be maximized, consistent with achieving the desired 

performance for the product.

    (b) Within 1 year after the publication date of the guidelines in 

this part, each Federal agency shall develop a procurement program 

which will assure that items composed of biobased products will be 

purchased to the maximum extent practicable and which is consistent 

with applicable provisions of Federal procurement laws. Each 

procurement program shall contain:

    (1) A preference program for purchasing designated items, (2) A 

promotion program to promote the preference program; and

    (3) Provisions for the annual review and monitoring of the 

effectiveness of the procurement program.

    (c) In developing the preference program, Federal agencies shall 

adopt one of the following options, or a substantially equivalent 

alternative, as part of the procurement program:

    (1) A policy of awarding contracts to the vendor offering a 

designated item



[[Page 70745]]



composed of the highest percentage of biobased product practicable 

except when such items:

    (i) Are not available within a reasonable time;

    (ii) Fail to meet performance standards set forth in the applicable 

specifications, or the reasonable performance standards of the Federal 

agency; or

    (iii) Are available only at an unreasonable price.

    (2) A policy of setting minimum biobased products content 

specifications in such a way as to assure that the biobased products 

content required is consistent with section 9002 of FSRIA and the 

requirements of the guidelines in this part except when such items:

    (i) Are not available within a reasonable time;

    (ii) Fail to meet performance standards for the use to which they 

will be put, or the reasonable performance standards of the Federal 

agency; or

    (iii) Are available only at an unreasonable price.





Sec.  2902.6  Funding for testing.



    (a) USDA will use funds to support testing for biobased content and 

conduct of the BEES Analysis for products within items USDA has 

selected to designate for preferred procurement through early 

regulatory action. USDA initially will focus on gathering the necessary 

test information on a sufficient number of products within an item 

(generic grouping of products) to support regulations to be promulgated 

to designate an item or items for preferred procurement under this 

program. USDA may accept cost sharing for such testing to the extent 

consistent with USDA product testing decisions. During this period USDA 

will not consider cost sharing in deciding what products to test. When 

USDA has concluded that a critical mass of items have been designated, 

USDA will exercise its discretion, in accordance with the competitive 

procedures outlined in paragraph (b) of this section, to allocate a 

portion of the available USDA testing funds to give priority to testing 

of products for which private sector firms provide cost sharing for the 

testing.

    (b)(1) Subject to the availability of funds and paragraph (a) of 

this section, USDA will announce annually the solicitation of proposals 

for cost-sharing for the testing of biobased products to carry out this 

program. Information regarding the submission of proposals for cost 

sharing also will be posted on the USDA informational Web site, http://www.biobased.oce.usda.gov

.



    (2) Cost-sharing proposals will be considered first for products of 

small and emerging private business enterprises. If funds remain to 

support further testing, a second tranche of applicants may be drawn 

from all other producers of biobased items. Proposals will be evaluated 

and assigned a priority rating. Priority ratings will be based on the 

following criteria:

    (i) A maximum of 25 points will be awarded a proposal based on the 

market readiness;

    (ii) A maximum of 20 points will be awarded a proposal based on the 

potential size of the market for that product in Federal agencies;

    (iii) A maximum of 25 points will be awarded based on the financial 

need for assistance of the manufacturer or vendor;

    (iv) A maximum of 20 points will be awarded a proposal based on the 

product's prospective competitiveness in the market place;

    (v) A maximum of 10 points will be awarded a proposal based on its 

likely benefit to the environment.

    (3) Proposals will be selected in order of declining priority 

ratings (from highest to lowest) until available funds for the fiscal 

year are committed.

    (4)(i) For products selected for BEES Analysis testing under this 

paragraph, USDA could provide up to 50 percent of the cost of 

determining the life cycle costs and environmental and health effects 

using the NIST's BEES Analysis, up to a maximum of $5,000 of assistance 

per product.

    (ii) For products selected for performance testing under this 

paragraph, USDA could provide up to 50 percent of cost for performance 

testing, up to $100,000 of assistance per product for up to two 

performance tests (measures of performance) per product.

    (5) For selected proposals, USDA will enter into agreements with 

and provide the funds directly to the testing entities.

    (6) Proposals submitted in one fiscal year, but not selected for 

cost-sharing of testing in that year, may be resubmitted to be 

considered for cost-sharing in the following year.



Subpart B--Biobased Product Eligibility for Federal Preference





Sec.  2902.10  Communicating information on qualifying biobased 

products.



    (a) Manufacturers and vendors are expected to provide relevant 

information to Federal agencies, upon request, with respect to product 

characteristics. USDA recommends that Federal agencies affirmatively 

seek this information. Manufacturers must be able to verify the 

biobased content in their products. The level of biobased content in 

the product is to be determined using the ASTM International standard 

that is a Radioisotope Standard Method to distinguish between carbon 

from fossil resources and that from renewable sources.

    (b) Manufacturers and vendors must use the National Institute of 

Standards and Technology BEES (Building for Environmental and Economic 

Sustainability) analytical tool to provide information on life cycle 

costs and environmental and health benefits to Federal agencies, when 

asked.

    (c) In assessing performance of qualifying biobased products, USDA 

requires that Federal agencies rely on results of performance tests 

using applicable ASTM International, International Organization for 

Standardization (ISO), Federal or military specifications, or other 

similarly authoritative industry test standards. Such testing must be 

conducted by a third party ASTM/ISO compliant laboratory.

    (d) Manufacturers and vendors are reminded that their advertising, 

labeling, and other marketing claims, including claims regarding health 

and environmental benefits of the product, must conform to the Federal 

Trade Commission Guides for the Use of Environmental Marketing Claims, 

16 CFR part 260.





Sec.  2902.11  Characteristics required for obtaining designated item 

status.



    (a) All qualifying items under this program must have at least 5 

percent of their total manufactured value (measured after manufacture 

at the location of manufacture) made up of biobased product(s).

    (b) Minimum biobased content requirements in Sec.  2902.12 refer to 

the biobased portion of the product, and not the entire item. These 

requirements are in addition to the 5 percent total manufactured value 

requirement in paragraph (a) of this section.

    (c) Manufacturers and vendors must utilize third party ASTM/ISO 

compliant test facilities using the ASTM International Radioisotope 

Standard Method to determine and certify the biobased content of their 

products offered for preferred procurement. Federal agencies and USDA 

may request verification of biobased content from manufacturers and 

vendors for products certified to qualify for preferred procurement.

    (d)(1) Biobased content shall be determined based on the weight of 

the biobased material (exclusive of water and other non-active 

ingredients, fillers,



[[Page 70746]]



and diluents) divided by the total weight of the product and expressed 

as a percentage by weight.

    (2) In the case of products that are essentially the same 

formulation, but marketed under a variety of brand names, the 

manufacturer or vendor may refer to the underlying biobased content 

test data as the basis to demonstrate the biobased content, rather than 

conducting a biobased content test on each branded product.

    (e) Products having mature markets are excluded from this program. 

For purposes of this program, a product has a mature market if the 

product falls within any of the following groups:

    (1) Silk, cotton and wool garments, household items, and industrial 

or commercial products unless made with a substantial amount of 

biobased plastic product.

    (2) Wood products made from traditionally-harvested forest 

materials.

    (3) Products having significant national market penetration prior 

to 1972.





Sec.  2902.12  Items and minimum biobased content.



    USDA shall designate items that meet the criteria set forth in this 

part as eligible for the procurement preference. In designating items, 

USDA will group items by category and will identify the minimum 

biobased content for each listed item. As items are designated for 

procurement preference, they will be added to this section.



    Dated: December 16, 2003.

Keith Collins,

Chief Economist, Department of Agriculture.

[FR Doc. 03-31347 Filed 12-18-03; 8:45 am]