Designation of Product Categories for Federal Procurement
| Published date | 05 July 2019 |
| Citation | 84 FR 32015 |
| Record Number | 2019-14038 |
| Section | Rules and Regulations |
| Court | Procurement And Property Management Office |
Federal Register, Volume 84 Issue 129 (Friday, July 5, 2019)
[Federal Register Volume 84, Number 129 (Friday, July 5, 2019)]
[Rules and Regulations]
[Pages 32015-32028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14038]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 84, No. 129 / Friday, July 5, 2019 / Rules
and Regulations
[[Page 32015]]
DEPARTMENT OF AGRICULTURE
Office of Procurement and Property Management
7 CFR Part 3201
RIN 0599-AA26
Designation of Product Categories for Federal Procurement
AGENCY: Office of Procurement and Property Management, USDA.
ACTION: Final rule.
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SUMMARY: The U.S. Department of Agriculture (USDA) is amending the
Guidelines for Designating Biobased Products for Federal Procurement
(Guidelines) to add 30 sections that will designate the product
categories within which biobased products would be afforded procurement
preference by Federal agencies and their contractors. These 30 product
categories contain finished products that are made, in large part, from
intermediate ingredients that have been designated for Federal
procurement preference. Additionally, USDA is amending the existing
designated product categories of general purpose de-icers, firearm
lubricants, laundry products, and water clarifying agents.
DATES: This rule is effective August 5, 2019.
FOR FURTHER INFORMATION CONTACT: Karen Zhang, USDA, Office of
Procurement and Property Management, Room 1640, USDA South Building,
1400 Independence Avenue SW, Washington, DC 20250; email:
[email protected]; phone 919-765-9969. Information
regarding the Federal preferred procurement program (one initiative of
the BioPreferred Program) is available at http://www.biopreferred.gov.
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. Authority
II. Background
III. Discussion of Public Comments
IV. Summary of Changes
V. Regulatory Information
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Regulatory Flexibility Act (RFA)
C. Executive Order 12630: Governmental Actions and Interference
With Constitutionally Protected Property Rights
D. Executive Order 12988: Civil Justice Reform
E. Executive Order 13132: Federalism
F. Unfunded Mandates Reform Act of 1995
G. Executive Order 12372: Intergovernmental Review of Federal
Programs
H. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
I. Paperwork Reduction Act
J. E-Government Act
K. Congressional Review Act
I. Authority
These product categories are designated under the authority of
section 9002 of the Farm Security and Rural Investment Act of 2002 (the
2002 Farm Bill), as amended by the Food, Conservation, and Energy Act
of 2008 (the 2008 Farm Bill), and further amended by the Agricultural
Act of 2014 (the 2014 Farm Bill) and the Agricultural Improvement Act
of 2018 (the 2018 Farm Bill), 7 U.S.C. 8102. (Section 9002 of the 2002
Farm Bill, as amended by the 2008, 2014, and 2018 Farm Bills, is
referred to in this document as ``section 9002''.)
II. Background
As part of the BioPreferred Program, USDA published, on September
14, 2018, a proposed rule in the Federal Register (FR) for the purpose
of designating a total of 30 product categories for the preferred
procurement of biobased products by Federal agencies (referred to
hereafter in this FR document as the ``preferred procurement
program''). This proposed rule can be found at 83 FR 46780.
Section 9002 provides for the preferred procurement of biobased
products by Federal procuring agencies and is referred to hereafter in
this Federal Register document as the ``Federal preferred procurement
program.'' Under the provisions specified in the ``Guidelines for
Designating Biobased Products for Federal Procurement'' in title 7 of
the U.S. Code of Federal Regulations (CFR), part 3201 (Guidelines), the
USDA BioPreferred Program ``designates'' product categories to which
the preferred procurement requirements apply by listing them in subpart
B of 7 CFR part 3201.
The term ``product category'' is used as a generic term in the
designation process to mean a grouping of specific products that
perform a similar function. As originally finalized, the Guidelines
included provisions for the designation of product categories that were
composed of finished, consumer products such as mobile equipment
hydraulic fluids, penetrating lubricants, or hand cleaners and
sanitizers.
The 2008, 2014, and 2018 Farm Bills directed USDA to expand the
scope of the Guidelines to include the designation of product
categories composed of both intermediate ingredients and feedstock
materials and finished products made from those materials.
Specifically, the 2008 Farm Bill stated that USDA shall ``designate
those items (including finished products) that are or can be produced
with biobased products (including biobased products for which there is
only a single product or manufacturer in the category) that will be
subject to'' Federal preferred procurement, ``designate those
intermediate ingredients and feedstocks that are or can be used to
produce items that will be subject'' to Federal preferred procurement,
and ``automatically designate items composed of [designated]
intermediate ingredients and feedstocks . . . if the content of the
designated intermediate ingredients and feedstocks exceeds 50 percent
of the item (unless the Secretary determines a different composition
percentage is appropriate).''
In the proposed rule, USDA proposed to designate 30 product
categories that contain finished products made from biobased
intermediate ingredients and feedstocks. USDA also proposed to amend
the existing designated product categories of general purpose de-icers,
firearm lubricants, laundry products, and water clarifying agents.
This final rule designates the proposed product categories within
which biobased products will be afforded Federal procurement
preference. USDA has determined that
[[Page 32016]]
each of the product categories being designated under this rulemaking
meets the necessary statutory requirements; that they are being
produced with biobased products; and that their procurement will carry
out the following objectives of section 9002: To improve demand for
biobased products; to spur development of the industrial base through
value-added agricultural processing and manufacturing in rural
communities; and to enhance the Nation's energy security by
substituting biobased products for products derived from imported oil
and natural gas.
When USDA designates by rulemaking a product category for preferred
procurement under the BioPreferred Program, manufacturers of all
products under the umbrella of that product category that meet the
requirements to qualify for preferred procurement can claim that status
for their products. To qualify for preferred procurement, a product
must be within a designated product category and must contain at least
the minimum biobased content established for the designated product
category. With the designation of these specific product categories,
USDA invites the manufacturers and vendors of qualifying products to
provide information on the product, contacts, and performance testing
for posting on its BioPreferred website, http://www.biopreferred.gov.
Procuring agencies will be able to utilize this website as one tool to
determine the availability of qualifying biobased products under a
designated product category. Once USDA designates a product category,
procuring agencies are required generally to purchase biobased products
within the designated product category where the purchase price of the
procurement product exceeds $10,000 or where the quantity of such
products or of functionally equivalent products purchased over the
preceding fiscal year equaled $10,000 or more.
Subcategorization. In this final rule, USDA is subcategorizing one
of the product categories. That product category is concrete repair
materials, and the proposed subcategories are: Concrete leveling and
concrete patching. USDA is also adding a new subcategory for dryer
sheets to the laundry products product category that was designated
previously (73 FR 27994, May 14, 2008).
Minimum Biobased Contents. The minimum biobased contents being
established in this rule are based on products for which USDA has
biobased content test data. USDA obtains biobased content data in
conjunction with product manufacturers' and vendors' applications for
certification to use the USDA Certified Biobased Product label.
Products that are certified to display the label must undergo biobased
content testing by an independent, third-party testing lab using ASTM
D6866, ``Standard Test Methods for Determining the Biobased Content of
Solid, Liquid, and Gaseous Samples Using Radiocarbon Analysis.'' These
test data are maintained in the BioPreferred Program database, and
their use in setting the minimum biobased content for designated
product categories results in a more efficient process for both the
Program and manufacturers and vendors of products within the product
categories.
Overlap with the U.S. Environmental Protection Agency's (EPA)
Comprehensive Procurement Guideline program for recovered content
products under the Resource Conservation and Recovery Act (RCRA)
section 6002. Some of the products that are categorized in biobased
product categories that are designated for Federal preferred
procurement under the BioPreferred Program may overlap with product
categories that the U.S. Environmental Protection Agency (EPA) has
designated under its Comprehensive Procurement Guideline (CPG) for
products containing recovered (or recycled) materials. A list of EPA's
CPG program product categories may be found on its website (https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program) and in
40 CFR part 247. In this final rule, some products that are categorized
in the product categories of concrete curing agents; concrete repair
materials--concrete leveling; concrete repair materials--concrete
patching; exterior paints and coatings; folders and filing products;
other lubricants; playground and athletic surface materials; product
packaging; rugs or floor mats; shopping and trash bags; soil
amendments; and transmission fluids may also be categorized in one or
more of the following product categories that are designated in EPA's
CPG program:
Construction Products: Cement and Concrete; Consolidated
and Reprocessed Latex Paint for Specified Uses;
Landscaping Products: Compost Made From Recovered Organic
Materials; Fertilizer Made From Recovered Organic Materials;
Miscellaneous Products: Mats;
Non-Paper Office Products: Binders, Clipboards, File
Folders, Clip Portfolios, and Presentation Folders; Plastic Envelopes;
Plastic Trash Bags;
Paper Products: Paperboard and Packaging;
Parks and Recreation Products: Playground Surfaces;
Running Tracks; and
Vehicular Products: Re-refined Lubricating Oil.
Federal Government Purchase of Sustainable Products. The Federal
government's sustainable purchasing program includes the following
three mandatory preference programs for designated products: The
BioPreferred Program, the EPA's CPG program, and the Environmentally
Preferable Purchasing program. The Council on Environmental Quality
(CEQ) and the Office of Management and Budget (OMB) encourage agencies
to implement these components comprehensively when purchasing products
and services.
Other Federal Preferred Procurement Programs. Federal procurement
officials should also note that many biobased products may be available
for purchase by Federal agencies through the AbilityOne Program
(formerly known as the Javits-Wagner-O'Day (JWOD) program). Under this
program, members of organizations including the National Industries for
the Blind (NIB) and SourceAmerica (formerly known as the National
Industries for the Severely Handicapped) offer products and services
for preferred procurement by Federal agencies.
Some biobased products that are categorized in the product
categories of adhesives; cleaning tools; clothing; de-icers; durable
cutlery; durable tableware; exterior paints and coatings; feminine care
products; folders and filing products; gardening supplies and
accessories; kitchenware and accessories; other lubricants; rugs and
floor mats; and toys and sporting gear could be available for purchase
in one or more of the following product categories in the AbilityOne
Catalog:
Cleaning and Janitorial Products,
Clothing,
Furniture,
Hardware and Paints,
Kitchen and Breakroom Supplies,
Mailing and Shipping Supplies,
Office Supplies,
Outdoor Supplies, and
Skin and Personal Care.
Because additional categories of products are frequently added to
the AbilityOne Program, it is possible that biobased products within
other product categories being designated today may be available
through the AbilityOne Program in the future. Procurement of biobased
products through the AbilityOne Program would further the objectives of
both the AbilityOne Program and the Federal preferred procurement
program.
[[Page 32017]]
Outreach. To augment its own research, USDA consults with industry
and Federal stakeholders to the Federal preferred procurement program
during the development of the rulemaking packages for the designation
of product categories. USDA consults with stakeholders to gather
information used in determining the order of product category
designation and in identifying the following: Manufacturers producing
and marketing products that are categorized within a product category
proposed for designation; performance standards used by Federal
agencies evaluating products to be procured; and warranty information
used by manufacturers of end-user equipment and other products with
regard to biobased products.
III. Discussion of Public Comments
USDA solicited comments on the proposed rule for 90 days ending on
November 13, 2018. USDA received five comments by that date. All of the
comments were from manufacturers of biobased products. The comments are
presented below, along with USDA's responses, and are shown under the
product categories to which they apply.
Concrete Repair Materials
Comment: Two commenters recommend including an additional sub-
category under Concrete Repair Materials that would include products
designed to preserve concrete. The commenters note that the two
subcategories that were included in the proposed rule, Concrete Repair
Materials--Concrete Leveling and Concrete Repair Materials--Concrete
Patching, do not take into consideration products that work to preserve
the concrete instead of repairing it. The commenters suggest including
a third subcategory called ``Concrete Repair Materials--Concrete
Preservation'' that would include products that are designed to protect
concrete from further deterioration.
Response: USDA thanks the commenters for their suggestions
regarding an additional subcategory for the Concrete Repair Materials
category. USDA agrees that Concrete Repair Materials--Concrete
Preservation sounds like a reasonable subcategory. However, the
commenters have not supplied enough information to designate this
additional subcategory at this time. USDA will continue to collect
information about concrete preservation products, and a concrete
preservation subcategory will be evaluated for inclusion in future
rulemaking actions. In the meantime, USDA would like to encourage
manufacturers of concrete preservation products who would like to
participate in the BioPreferred Program to use the product category
``Wood and Concrete Sealers'' found in Sec. 3201.42.
Epoxy Systems
Comment: One commenter supports the creation of the Epoxy Systems
category and agrees that biobased technologies exist that can provide
performance properties that meet market requirements as well as the
proposed 23 percent minimum biobased content requirement.
Response: USDA thanks the commenter for their support of the
proposed designation of the Epoxy Systems product category.
Exterior Paints and Coatings
Comment: One commenter suggests adding performance criteria to the
description for this category. The commenter expresses concern that
without performance test standards associated with the category, higher
performing biobased products with less than 83 percent biobased content
would be excluded.
Response: USDA agrees that some exterior paint and coating products
may not meet the 83 percent minimum biobased content requirement;
however, the data available to USDA show that there are exterior paint
and coating products that are capable of meeting the 83 percent
minimum. USDA does not generally consider performance criteria when
establishing product categories. USDA does give manufacturers an
opportunity to provide data on performance criteria as supplemental
information when submitting information about their products. While
this information is not considered when determining criteria for
eligibility to participate in the BioPreferred Program, performance
criteria may be taken into consideration when determining the need to
establish subcategories. In the future, USDA may add subcategories to
the Exterior Paints and Coatings category based on performance criteria
if the data support this.
Rugs and Floor Mats
Comment: One commenter believes that the proposed minimum biobased
content (23 percent) will be extremely difficult to achieve for fiber-
based rugs, runners, and floor mats due to the carpet-like structure of
these types of floor coverings. The commenter states that the carpet
structure of carpet-based rugs, which does not lend itself to be coated
with a backing system with enough biobased formulation to reach the 23
percent biobased content requirement, accounts for 70 percent of the
structure of the rug. Thus, the commenter recommends adding language to
clarify that carpet-like rugs and floor coverings be included in the
previously designated Carpets category rather than in the proposed Rugs
and Floor Mats category. The commenter believes that non-fiber-based
chair pads or floor mats would not have this issue and would be able to
meet the 23 percent biobased content requirement.
Response: USDA reviewed the commenter's suggestions and agreed that
it would add clarity to revise the definition. USDA's intent was not to
supersede the designated product category ``Carpets'' (found in Sec.
3201.33) for products composed of woven, tufted, or knitted fiber and a
backing system, regardless of whether or not they are wall-to-wall
carpet products. USDA has revised the proposed definition to clarify
that products that include backing systems would fall under the Carpets
category rather than the Rugs and Floor Mats category. Loose fiber,
woven rugs or plastic-type floor mats will fall under the Rugs and
Floor Mats category.
Traffic and Zone Marking Paints
Comment: One commenter suggests that the category name be changed
to ``Parking Lot and Road Marking Paints.'' The commenter states that
while ``Traffic and Zone Marking Paints'' is common verbiage in the
pavement maintenance industry, the phrase does not adequately convey
the types of products that might fall into the category to individuals
who are not overly familiar with the industry, including federal
purchasing agents and specifiers. The commenter believes that changing
the category name to ``Parking Lot and Road Marking Paints'' will make
it more obvious to specifiers that biobased alternatives exist for
their parking lot and road marking projects. The commenter also
suggests changing the minimum biobased content to 32 percent rather
than the proposed 30 percent.
Response: USDA agrees that finding a name for a product category
that will be familiar to all users of these types of products is
difficult. Because ``Traffic and Zone Marking Paints'' is a common
phrase used by those in the industry, and it has been used for the
Voluntary Labeling initiative for a significant period of time, USDA
believes this is a reasonable name for the category. Although the name
of the product category will not be revised, USDA agrees that the
definition of the category can be revised to clarify the types of
products that are included in this
[[Page 32018]]
category. To promote awareness of newly designated product categories,
USDA prepares ``Fact Sheets'' describing the new designated categories
and their definitions and posts this information on the BioPreferred
website so that it is available to federal purchasing agents. Procuring
agencies will be able to utilize the information available on the
website as one tool to determine and become familiar with the
categories of products that are designated for Federal procurement
preference, as well as the availability of qualifying biobased products
under a designated product category.
USDA did not revise the proposed minimum biobased content for this
product category. As discussed in the Preamble to the proposed rule,
USDA has biobased content data on five traffic and zone marking paints,
and these products have biobased contents ranging from 33 to 38
percent. USDA set the minimum for this category based on the products
with tested biobased contents of 33 percent, taking into account the
slight imprecision of three percentage points in the ASTM D6866 test
method used to measure biobased content.
IV. Summary of Changes
After consideration of the public comments received in response to
the proposed rule, USDA made some changes in the final rule. These
changes are summarized below. In the final rule, USDA has revised the
definitions of the categories Rugs and Floors Mats and Traffic and Zone
Marking Paints. These changes were made to clarify or add examples of
the types of products that will be included or excluded in each of
these categories. The definition for the Rugs and Floor Mats category
has been revised to clarify that products composed of woven, tufted, or
knitted fiber and a backing system are excluded from this category as
they are already included in the designated product category
``Carpets.'' The definition for the Traffic and Zone Marking Paints
category has been revised to clarify the types of products (and the
common usages of these products) that would fall into this category for
those who may not be familiar with the traffic and zone marking paint
industry.
In addition, USDA has revised the minimum biobased content
requirement for the Folders and Filing Products category to account for
new data that USDA obtained. After the proposed rule was published,
USDA obtained new biobased content data regarding the products upon
which the proposed minimum for this category was set. These products
were reformulated and now each contain 59 percent biobased content, as
measured by ASTM D6866. USDA did not find a reason to exclude either of
these products and has determined that it is reasonable to change the
minimum biobased content for this category to include these products.
Thus, the minimum biobased content for this product category is 56
percent, based on the products with tested biobased content of 59
percent.
V. Regulatory Information
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Executive Order 12866, as supplemented by Executive Order 13563,
requires agencies to determine whether a regulatory action is
``significant.'' The Order defines a ``significant regulatory action''
as one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect, in a
material way, the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; (2) Create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) Materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) Raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order.
This final rule has been determined by the Office of Management and
Budget to be not significant for purposes of Executive Order 12866. We
are not able to quantify the annual economic effect associated with
this final rule. USDA attempted to obtain information on the Federal
agencies' usage within the proposed new product categories being added
and the existing categories being amended. These efforts were largely
unsuccessful. Therefore, attempts to determine the economic impacts of
this final rule would require estimation of the anticipated market
penetration of biobased products based upon many assumptions. In
addition, because agencies have the option of not purchasing products
within designated product categories if price is ``unreasonable,'' the
product is not readily available, or the product does not demonstrate
necessary performance characteristics, certain assumptions may not be
valid. While facing these quantitative challenges, USDA relied upon a
qualitative assessment to determine the impacts of this final rule.
1. Summary of Impacts
This final rule is expected to have both positive and negative
impacts to individual businesses, including small businesses. USDA
anticipates that the Federal preferred procurement program will
ultimately provide additional opportunities for businesses and
manufacturers to begin supplying products under the proposed designated
biobased product categories to Federal agencies and their contractors.
However, other businesses and manufacturers that supply only non-
qualifying products and do not offer biobased alternatives may
experience a decrease in demand from Federal agencies and their
contractors. USDA is unable to determine the number of businesses,
including small businesses, that may be adversely affected by this
final rule. The final rule, however, will not affect existing purchase
orders, nor will it preclude businesses from modifying their product
lines to meet new requirements for designated biobased products.
Because the extent to which procuring agencies will find the
performance, availability and/or price of biobased products acceptable
is unknown, it is impossible to quantify the actual economic effect of
the rule.
2. Benefits of the Final Rule
The designation of these product categories provides the benefits
outlined in the objectives of section 9002: To increase domestic demand
for many agricultural commodities that can serve as feedstocks for
production of biobased products and to spur development of the
industrial base through value-added agricultural processing and
manufacturing in rural communities. On a national and regional level,
this final rule can result in expanding and strengthening markets for
biobased materials used in these product categories.
3. Costs of the Final Rule
Like the benefits, the costs of this final rule have not been
quantified. Two types of costs are involved: Costs to producers of
products that will compete with the preferred products and costs to
Federal agencies to provide procurement preference for the preferred
products. Producers of competing products may face a decrease in demand
for their products to the extent Federal agencies refrain from
purchasing their products. However, it is not known to what extent this
may occur. Pre-award procurement costs for
[[Page 32019]]
Federal agencies may rise minimally as the contracting officials
conduct market research to evaluate the performance, availability, and
price reasonableness of preferred products before making a purchase.
B. Regulatory Flexibility Act (RFA)
The RFA, 5 U.S.C. 601-602, generally requires an agency to prepare
a regulatory flexibility analysis of any rule subject to notice and
comment rulemaking requirements under the Administrative Procedure Act
or any other statute unless the agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
USDA evaluated the potential impacts of its proposed designation of
these product categories to determine whether its actions would have a
significant impact on a substantial number of small entities. Because
the Federal preferred procurement program established under section
9002 applies only to Federal agencies and their contractors, small
governmental (city, county, etc.) agencies are not affected. Thus, this
final rule will not have a significant economic impact on small
governmental jurisdictions.
USDA anticipates that this program will affect entities, both large
and small, that manufacture or sell biobased products. For example, the
designation of product categories for Federal preferred procurement
will provide additional opportunities for businesses to manufacture and
sell biobased products to Federal agencies and their contractors.
Similar opportunities will be provided for entities that supply
biobased materials to manufacturers.
The intent of section 9002 is largely to stimulate the production
of new biobased products and to energize emerging markets for those
products. Because the program continues to evolve, however, it is
unknown how many businesses will ultimately be affected. While USDA has
no data on the number of small businesses that may choose to develop
and market biobased products within the product categories designated
by this rulemaking, the number is expected to be small. Because
biobased products represent an emerging market for products that are
alternatives to traditional products with well-established market
shares, only a small percentage of all manufacturers, large or small,
are expected to develop and market biobased products. Thus, the number
of small businesses manufacturing biobased products affected by this
rulemaking is not expected to be substantial.
The Federal preferred procurement program may decrease
opportunities for businesses that manufacture or sell non-biobased
products or provide components for the manufacturing of such products.
Most manufacturers of non-biobased products within the product
categories being proposed for designation for Federal preferred
procurement in this rule are expected to be included under the
following North American Industry Classification System (NAICS) codes:
314 Textile Product Mills;
3169 Other Leather and Allied Product Manufacturing;
32419 Other Petroleum and Coal Products Manufacturing;
3255 Paint, Coating, and Adhesive Manufacturing;
3256 Soap, Cleaning Compound, and Toilet Preparation
Manufacturing;
325212 Synthetic Rubber Manufacturing;
325998 All Other Miscellaneous Chemical Product and
Preparation Manufacturing;
325220 Artificial and Synthetic Fibers and Filaments
Manufacturing;
32611 Plastics Packaging Materials and Unlaminated Film
and Sheet Manufacturing;
32614 Polystyrene Foam Product Manufacturing;
32615 Urethane and Other Foam Product (except Polystyrene)
Manufacturing;
32616 Plastics Bottle Manufacturing;
32619 Other Plastics Product Manufacturing;
3262 Rubber Product Manufacturing;
3322 Cutlery and Handtool Manufacturing;
3324 Boiler, Tank, and Shipping Container Manufacturing;
3328 Coating, Engraving, Heat Treating, and Allied
Activities;
33992 Sporting and Athletic Goods Manufacturing;
33993 Doll, Toy, and Game Manufacturing;
33994 Office Supplies (except Paper) Manufacturing;
339994 Broom, Brush, and Mop Manufacturing; and
339999 All Other Miscellaneous Manufacturing.
USDA obtained information on these 24 NAICS categories from the
U.S. Census Bureau's Economic Census database. USDA found that in 2012,
the Survey of Business Owners data indicate that there were about
42,365 firms with paid employees within these 24 NAICS categories. When
considering the 2012 Business Patterns Geography Area Series data in
conjunction, these firms owned a total of about 48,532 individual
establishments. Thus, the average number of establishments per company
is about 1.15. The 2012 Business Patterns Geography Area Series data
also reported that of the 48,532 individual establishments, about
48,306 (99.5 percent) had fewer than 500 paid employees. USDA also
found that the average number of paid employees per firm among these
industries was about 35. Thus, nearly all of the businesses meet the
Small Business Administration's definition of a small business (less
than 500 employees, in most NAICS categories).
USDA does not have data on the potential adverse impacts on
manufacturers of non-biobased products within the product categories
being designated by this final rule, but believes that the impact will
not be significant. The ratio of the total number of companies with
USDA Certified Biobased Products that are categorized in the product
categories included in this final rule to the total number of firms
with paid employees in each of the NAICS codes listed above is 0.0038.
Thus, USDA believes that the number of small businesses manufacturing
non-biobased products within these product categories and selling
significant quantities of those products to government agencies that
would be affected by this rulemaking to be relatively low. Also, this
final rule will not affect existing purchase orders, and it will not
preclude procuring agencies from continuing to purchase non-biobased
products when biobased products do not meet the availability,
performance, or reasonable price criteria. This final rule will also
not preclude businesses from modifying their product lines to meet new
specifications or solicitation requirements for these products
containing biobased materials.
After considering the economic impacts of this final rule on small
entities, USDA certifies that this action will not have a significant
economic impact on a substantial number of small entities.
While not a factor relevant to determining whether the final rule
will have a significant impact for RFA purposes, USDA has concluded
that the effect of the rule will be to provide positive opportunities
for businesses engaged in the manufacture of these biobased products.
Purchase and use of these biobased products by procuring agencies
increases demand for these products and results in private sector
development of new technologies,
[[Page 32020]]
creating business and employment opportunities that enhance local,
regional, and national economies.
C. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This final rule has been reviewed in accordance with Executive
Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights, and does not contain
policies that would have implications for these rights.
D. Executive Order 12988: Civil Justice Reform
This final rule has been reviewed in accordance with Executive
Order 12988, Civil Justice Reform. This final rule does not preempt
State or local laws, is not intended to have retroactive effect, and
does not involve administrative appeals.
E. Executive Order 13132: Federalism
This final rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment. Provisions of this
final rule will not have a substantial direct effect on States or their
political subdivisions or on the distribution of power and
responsibilities among the various government levels.
F. Unfunded Mandates Reform Act of 1995
This final rule contains no Federal mandates under the regulatory
provisions of Title II of the Unfunded Mandates Reform Act of 1995
(UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal governments,
or the private sector. Therefore, a statement under section 202 of UMRA
is not required.
G. Executive Order 12372: Intergovernmental Review of Federal Programs
For the reasons set forth in the final rule related notice for 7
CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is
excluded from the scope of Executive Order 12372, which requires
intergovernmental consultation with State and local officials. This
program does not directly affect State and local governments.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This final rule does not significantly or uniquely affect ``one or
more Indian tribes . . . the relationship between the Federal
Government and Indian tribes, or . . . the distribution of power and
responsibilities between the Federal Government and Indian tribes.''
Thus, no further action is required under Executive Order 13175.
I. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 through 3520), the information collection under this final rule is
currently approved under OMB control number 0503-0011.
J. E-Government Act Compliance
USDA is committed to compliance with the E-Government Act, which
requires Government agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. USDA is implementing an electronic
information system for posting information voluntarily submitted by
manufacturers or vendors on the products they intend to offer for
Federal preferred procurement under each designated product category.
For information pertinent to E-Government Act compliance related to
this rule, please contact Karen Zhang at (202) 401-4747.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, that includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. USDA has submitted a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register.
List of Subjects in 7 CFR Part 3201
Biobased products, Business and industry, Government procurement.
For the reasons stated in the preamble, the Department of
Agriculture is amending 7 CFR part 3201 as follows:
PART 3201--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL
PROCUREMENT
0
1. The authority citation for part 3201 continues to read as follows:
Authority: 7 U.S.C. 8102.
0
2. Section 3201.37 is amended by revising the section heading and
paragraphs (a) and (c) to read as follows:
Sec. 3201.37 De-Icers.
(a) Definition. Chemical products (e.g., salts, fluids) that are
designed to aid in the removal of snow and/or ice, and/or in the
prevention of the buildup of snow and/or ice, by lowering the freezing
point of water.
* * * * *
(c) Preference compliance dates. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased de-icers. By that date,
Federal agencies responsible for drafting or reviewing specifications
for products to be procured shall ensure that the relevant
specifications require the use of biobased de-icers.
0
3. Section 3201.38 is revised to read as follows:
Sec. 3201.38 Firearm cleaners, lubricants, and protectants.
(a) Definition. Products that are designed to care for firearms by
cleaning, lubricating, protecting, or any combination thereof. Examples
include products that are designed for use in firearms to reduce the
friction and wear between the moving parts of a firearm, to keep the
weapon clean, and/or to prevent the formation of deposits that could
cause the weapon to jam.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 32 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance dates. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased firearm cleaners,
lubricants, and protectants. By that date, Federal agencies responsible
for drafting or reviewing specifications for products to be procured
shall ensure that the relevant specifications require the use of
biobased firearm cleaners, lubricants, and protectants.
0
4. Section 3201.40 is amended by adding paragraphs (a)(2)(iii) and
(b)(3) and revising paragraph (c) to read as follows:
Sec. 3201.40 Laundry products.
(a) * * *
(2) * * *
(iii) Dryer sheets. These are small sheets that are added to
laundry in clothes dryers to eliminate static cling, soften fabrics, or
otherwise improve the characteristics of the fabric.
(b) * * *
(3) Dryer sheets--90 percent.
[[Page 32021]]
(c) Preference compliance dates. (1) No later than May 14, 2009,
procuring agencies, in accordance with this part, will give a
procurement preference for those qualifying biobased laundry products
specified in paragraphs (a)(2)(i) and (ii) of this section. By that
date, Federal agencies that have the responsibility for drafting or
reviewing specifications for items to be procured shall ensure that the
relevant specifications require the use of biobased laundry products.
(2) No later than July 6, 2020, procuring agencies, in accordance
with this part, will give a procurement preference for those qualifying
biobased laundry products specified in paragraph (a)(2)(iii) of this
section. By that date, Federal agencies responsible for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased laundry
products.
0
5. Section 3201.99 is revised to read as follows:
Sec. 3201.99 Water and wastewater treatment chemicals.
(a) Definition. Chemicals that are specifically formulated to
purify raw water or to treat and purify wastewater from residential,
commercial, industrial, and agricultural systems. Examples include
coagulants, flocculants, neutralizing agents, activated carbon, or
defoamers. This category excludes microbial cleaning products.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 87 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased water and wastewater
treatment chemicals. By that date, Federal agencies responsible for
drafting or reviewing specifications for products to be procured shall
ensure that the relevant specifications require the use of biobased
water and wastewater treatment chemicals.
0
6. Add Sec. Sec. 3201.120 through 3201.149 to subpart B to read as
follows:
Subpart B--Designated Product Categories and Intermediate
Ingredients or Feedstocks
Sec.
* * * * *
3201.120 Adhesives.
3201.121 Animal habitat care products.
3201.122 Cleaning tools.
3201.123 Concrete curing agents.
3201.124 Concrete repair materials.
3201.125 Durable cutlery.
3201.126 Durable tableware.
3201.127 Epoxy systems.
3201.128 Exterior paints and coatings.
3201.129 Facial care products.
3201.130 Feminine care products.
3201.131 Fire logs and fire starters.
3201.132 Folders and filing products.
3201.133 Foliar sprays.
3201.134 Gardening supplies and accessories.
3201.135 Heating fuels and wick lamps.
3201.136 Kitchenware and accessories.
3201.137 Other lubricants.
3201.138 Phase change materials.
3201.139 Playground and athletic surface materials.
3201.140 Powder coatings.
3201.141 Product packaging.
3201.142 Rugs and floor mats.
3201.143 Shopping and trash bags.
3201.144 Soil amendments.
3201.145 Surface guards, molding, and trim.
3201.146 Toys and sporting gear.
3201.147 Traffic and zone marking paints.
3201.148 Transmission fluids.
3201.149 Wall coverings.
Sec. 3201.120 Adhesives.
(a) Definition. Adhesives are compounds that temporarily or
permanently bind two item surfaces together. These products include
glues and sticky tapes used in construction, household, flooring, and
industrial settings. This category excludes epoxy systems.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 24 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased adhesives. By that date,
Federal agencies responsible for drafting or reviewing specifications
for products to be procured shall ensure that the relevant
specifications require the use of biobased adhesives.
Sec. 3201.121 Animal habitat care products.
(a) Definition. Animal habitat care products are products that are
intended to improve the quality of animal habitats such as cleaning
supplies, sanitizers, feeders, and products that control, mask, or
suppress pet odors. This category excludes animal bedding or litter
products and animal cleaning products.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 22 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased animal habitat care
products. By that date, Federal agencies responsible for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased animal habitat
care products.
Sec. 3201.122 Cleaning tools.
(a) Definition. Cleaning tools are objects that are used to clean a
variety of surfaces or items and can be used multiple times. This
category includes tools such as brushes, scrapers, abrasive pads, and
gloves that are used for cleaning. The expendable materials used in
cleaning, such as glass cleaners, single-use wipes, and all-purpose
cleaners, are excluded from this category, as these materials better
fit in other categories.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 22 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased cleaning tools. By that
date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased cleaning tools.
Sec. 3201.123 Concrete curing agents.
(a) Definition. Concrete curing agents are products that are
designed to enhance and control the curing process of concrete.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 59 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased concrete curing agents.
By that date, Federal agencies
[[Page 32022]]
responsible for drafting or reviewing specifications for products to be
procured shall ensure that the relevant specifications require the use
of biobased concrete curing agents.
(d) Determining overlap with a designated product category in the
EPA's Comprehensive Procurement Guideline (CPG) program. Qualifying
products within this product category may overlap with the EPA's CPG-
designated recovered content product category of Construction Products:
Cement and Concrete. USDA is requesting that manufacturers of these
qualifying biobased products provide information on the BioPreferred
Program's website about the intended uses of the product, information
on whether the product contains any recovered material, in addition to
biobased ingredients, and performance standards against which the
product has been tested. This information will assist Federal agencies
in determining whether a qualifying biobased product overlaps with the
EPA's CPG-designated product category of Construction Products: Cement
and Concrete and which product should be afforded the preference in
purchasing.
Note 1 to Paragraph (d): Concrete curing agents within this
designated product category can compete with similar concrete curing
agents with recycled content. Under the Resource Conservation and
Recovery Act of 1976, section 6002, the U.S. Environmental
Protection Agency CPG-designated Construction Products: Cement and
Concrete containing recovered materials as products for which
Federal agencies must give preference in their purchasing programs.
The designation can be found in the Comprehensive Procurement
Guideline, 40 CFR 247.12.
Sec. 3201.124 Concrete repair materials.
(a) Definition. (1) Products that are designed to repair cracks and
other damage to concrete.
(2) Concrete repair materials for which preferred procurement
applies are:
(i) Concrete repair materials--concrete leveling. Concrete repair
materials--concrete leveling are products that are designed to repair
cracks and other damage to concrete by raising or stabilizing concrete.
(ii) Concrete repair materials--concrete patching. Concrete repair
materials--concrete patching are products that are designed to repair
cracks and other damage to concrete by filling and patching the
concrete.
(b) Minimum biobased content. The minimum biobased content for all
concrete repair materials shall be based on the amount of qualifying
biobased carbon in the product as a percent of the total organic carbon
in the finished product. The applicable minimum biobased contents are:
(1) Concrete repair materials--concrete leveling--23 percent.
(2) Concrete repair materials--concrete patching--69 percent.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased concrete repair
materials. By that date, Federal agencies responsible for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased concrete repair
materials.
(d) Determining overlap with a designated product category in the
EPA's CPG program. Qualifying products within this product category may
overlap with the EPA's CPG-designated recovered content product
category of Construction Products: Cement and Concrete. USDA is
requesting that manufacturers of these qualifying biobased products
provide information on the BioPreferred Program's website about the
intended uses of the product, information on whether the product
contains any recovered material, in addition to biobased ingredients,
and performance standards against which the product has been tested.
This information will assist Federal agencies in determining whether a
qualifying biobased product overlaps with the EPA's CPG-designated
product category of Construction Products: Cement and Concrete and
which product should be afforded the preference in purchasing.
Note 1 to Paragraph (d): Concrete repair materials within this
designated product category can compete with similar concrete repair
materials with recycled content. Under the Resource Conservation and
Recovery Act of 1976, section 6002, the U.S. Environmental
Protection Agency CPG-designated Construction Products: Cement and
Concrete containing recovered materials as products for which
Federal agencies must give preference in their purchasing programs.
The designation can be found in the Comprehensive Procurement
Guideline, 40 CFR 247.12.
Sec. 3201.125 Durable cutlery.
(a) Definition. Durable cutlery consists of dining utensils that
are designed to be used multiple times.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 28 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased durable cutlery. By that
date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased durable cutlery.
Sec. 3201.126 Durable tableware.
(a) Definition. Durable tableware consists of multiple-use
drinkware and dishware including cups, plates, bowls, and serving
platters.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 28 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased durable tableware. By
that date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased durable tableware.
Sec. 3201.127 Epoxy systems.
(a) Definition. Epoxy systems are two-component systems that are
epoxy-based and are used as coatings, adhesives, surface fillers, and
composite matrices.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 23 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased epoxy systems. By that
date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased epoxy systems.
Sec. 3201.128 Exterior paints and coatings.
(a) Definition. Exterior paints and coatings are pigmented liquid
products that typically contain pigments to add color and are
formulated for use on outdoor surfaces. When these products
[[Page 32023]]
dry, they typically form a protective layer and provide a coat of color
to the applied surface. This category includes paint and primers but
excludes wood and concrete sealers and stains and specialty coatings
such as roof coatings, wastewater system coatings, and water tank
coatings.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 83 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased exterior paints and
coatings. By that date, Federal agencies responsible for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased exterior paints
and coatings.
(d) Determining overlap with a designated product category in the
EPA's CPG program. Qualifying products within this product category may
overlap with the EPA's CPG-designated recovered content product
category of Construction Products: Consolidated and Reprocessed Latex
Paint for Specified Uses. USDA is requesting that manufacturers of
these qualifying biobased products provide information on the
BioPreferred Program's website about the intended uses of the product,
information on whether the product contains any recovered material, in
addition to biobased ingredients, and performance standards against
which the product has been tested. This information will assist Federal
agencies in determining whether a qualifying biobased product overlaps
with the EPA's CPG-designated product category of Construction
Products: Consolidated and Reprocessed Latex Paint for Specified Uses
and which product should be afforded the preference in purchasing.
Note 1 to Paragraph (d): Exterior paints and coatings within
this designated product category can compete with similar exterior
paints and coatings with recycled content. Under the Resource
Conservation and Recovery Act of 1976, section 6002, the U.S.
Environmental Protection Agency CPG-designated Construction
Products: Consolidated and Reprocessed Latex Paint for Specified
Uses containing recovered materials as products for which Federal
agencies must give preference in their purchasing programs. The
designation can be found in the Comprehensive Procurement Guideline,
40 CFR 247.12.
Sec. 3201.129 Facial care products.
(a) Definition. Facial care products are cleansers, moisturizers,
and treatments specifically designed for the face. These products are
used to care for the condition of the face by supporting skin
integrity, enhancing its appearance, and relieving skin conditions.
This category does not include tools and applicators, such as those
used to apply facial care products.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 88 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased facial care products. By
that date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased facial care
products.
Sec. 3201.130 Feminine care products.
(a) Definition. Feminine care products are products that are
designed for maintaining feminine health and hygiene. This category
includes sanitary napkins, panty liners, and tampons.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 65 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased feminine care products.
By that date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased feminine care
products.
Sec. 3201.131 Fire logs and fire starters.
(a) Definition. Fire logs and fire starters are devices or
substances that are used to start a fire intended for uses such as
comfort heat, decoration, or cooking. Examples include fire logs and
lighter fluid. This category excludes heating fuels for chafing dishes,
beverage urns, warming boxes, and wick lamps.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 92 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased fire logs and fire
starters. By that date, Federal agencies responsible for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased fire logs and
fire starters.
Sec. 3201.132 Folders and filing products.
(a) Definition. Folders and filing products are products that are
designed to hold together items such as loose sheets of paper,
documents, and photographs with clasps, fasteners, rings, or folders.
This category includes binders, folders, and document covers.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 56 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased folders and filing
products. By that date, Federal agencies responsible for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased folders and
filing products.
(d) Determining overlap with a designated product category in the
EPA's CPG program. Qualifying products within this product category may
overlap with the EPA's CPG-designated recovered content product
categories of Non-Paper Office Products: Binders, Clipboards, File
Folders, Clip Portfolios, and Presentation Folders and Non-Paper Office
Products: Plastic Envelopes. USDA is requesting that manufacturers of
these qualifying biobased products provide information on the
BioPreferred Program's website about the intended uses of the product,
information on whether the product contains any recovered material, in
addition to biobased ingredients, and performance standards against
which the product has been tested. This information will assist Federal
agencies in determining whether a qualifying biobased product overlaps
with the EPA's CPG-designated product
[[Page 32024]]
categories of Non-Paper Office Products: Binders, Clipboards, File
Folders, Clip Portfolios, and Presentation Folders and Non-Paper Office
Products: Plastic Envelopes and which product should be afforded the
preference in purchasing.
Note 1 to Paragraph (d): Biobased folders and filing products
within this designated product category can compete with similar
folders and filing products with recycled content. Under the
Resource Conservation and Recovery Act of 1976, section 6002, the
U.S. Environmental Protection Agency CPG-designated Non-Paper Office
Products: Binders, Clipboards, File Folders, Clip Portfolios, and
Presentation Folders and Non-Paper Office Products: Plastic
Envelopes containing recovered materials as products for which
Federal agencies must give preference in their purchasing programs.
The designation can be found in the Comprehensive Procurement
Guideline, 40 CFR 247.16.
Sec. 3201.133 Foliar sprays.
(a) Definition. Foliar sprays are products that are applied to the
leaves of plants and provide plants with nutrients. These products may
also repair plants from previous pest attacks. Examples include liquid
fertilizers, foliar feeds, and micronutrient solutions.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 50 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased foliar sprays. By that
date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased foliar sprays.
Sec. 3201.134 Gardening supplies and accessories.
(a) Definition. Gardening supplies and accessories are products
that are used to grow plants in outdoor and indoor settings. Examples
include seedling starter trays, nonwoven mats or substrates for
hydroponics, and flower or plant pots. This category excludes compost
activators and accelerators; erosion control materials; fertilizers,
including soil inoculants; foliar sprays; mulch and compost materials;
and soil amendments.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 43 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased gardening supplies and
accessories. By that date, Federal agencies responsible for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased gardening
supplies and accessories.
Sec. 3201.135 Heating fuels and wick lamps.
(a) Definition. Heating fuels and wick lamps are products that
create controlled sources of heat or sustain controlled open flames
that are used for warming food, portable stoves, beverage urns, or
fondue pots. This category also includes wick lamps and their fuels
that create controlled sources of light indoors and in camping or
emergency preparedness situations. This category excludes fire logs and
fire starters and candles and wax melts.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 75 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased heating fuels and wick
lamps. By that date, Federal agencies responsible for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased heating fuels
and wick lamps.
Sec. 3201.136 Kitchenware and accessories.
(a) Definition. Kitchenware and accessories are products designed
for food or drink preparation. These products include cookware and
bakeware, such as baking cups, cookie sheets, parchment paper, and
roasting bags or pans; cooking utensils, such as brushes, tongs,
spatulas, and ladles; and food preparation items, such as cutting
boards, measuring cups, mixing bowls, coffee filters, food preparation
gloves, and sandwich and snack bags. These products exclude kitchen
appliances, such as toasters, blenders, and coffee makers; disposable
tableware; disposable cutlery; disposable containers; durable
tableware; durable cutlery; and cleaning tools.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 22 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased kitchenware and
accessories. By that date, Federal agencies responsible for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased kitchenware and
accessories.
Sec. 3201.137 Other lubricants.
(a) Definition. Other lubricants are lubricant products that do not
fit into any of the BioPreferred Program's specific lubricant
categories. This category includes lubricants that are formulated for
specialized uses. Examples of other lubricants include lubricants used
for sporting or exercise gear and equipment, musical instruments, and
specialized equipment such as tree shakers. This category excludes
lubricants that are covered by the specific lubricant categories such
as chain and cable lubricants, firearm lubricants, forming lubricants,
gear lubricants, multi-purpose lubricants, penetrating lubricants,
pneumatic equipment lubricants, and slide way lubricants.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 39 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased other lubricants. By
that date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased other lubricants.
(d) Determining overlap with a designated product category in the
EPA's CPG program. Qualifying products within this product category may
overlap with the EPA's CPG-designated recovered content product
category of Vehicular Products: Re-Refined Lubricating Oil. USDA is
requesting that manufacturers of these qualifying biobased products
provide information on the BioPreferred
[[Page 32025]]
Program's website about the intended uses of the product, information
on whether the product contains any recovered material, in addition to
biobased ingredients, and performance standards against which the
product has been tested. This information will assist Federal agencies
in determining whether a qualifying biobased product overlaps with the
EPA's CPG-designated product category of Vehicular Products: Re-Refined
Lubricating Oil and which product should be afforded the preference in
purchasing.
Note 1 to Paragraph (d): Other lubricants within this designated
product category can compete with similar other lubricants with
recycled content. According to the Resource Conservation and
Recovery Act of 1976, section 6002, Federal agencies must give
preference in their purchasing programs for the U.S. Environmental
Protection Agency's CPG-designated Vehicular Products: Re-Refined
Lubricating Oil containing recovered materials as products. The
designation can be found in the Comprehensive Procurement Guideline,
40 CFR 247.11.
Sec. 3201.138 Phase change materials.
(a) Definition. Phase change materials are products that are
capable of absorbing and releasing large amounts of thermal energy by
freezing and thawing at certain temperatures. Heat is absorbed or
released when the material changes from solid to liquid and vice versa.
Applications may include, but are not limited to, conditioning of
buildings, medical applications, thermal energy storage, or cooling of
food. Materials such as animal fats and plant oils that melt at
desirable temperatures are typically used to make products in this
category.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 71 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased phase change materials.
By that date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased phase change
materials.
Sec. 3201.139 Playground and athletic surface materials.
(a) Definition. Playground and athletic surface materials are
products that are designed for use on playgrounds and athletic
surfaces. Examples include materials that are applied to the surfaces
of playgrounds, athletic fields, and other sports surfaces to enhance
or change the color or general appearance of the surface and to provide
safety and/or performance benefits. Such materials include, but are not
limited to, top coatings, primers, line marking paints, and rubberized
pellets that are used on athletic courts, tracks, natural or artificial
turf, and other playing surfaces. This category does not include the
artificial turf or surface itself, as that is included in the carpets
product category.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 22 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased playground and athletic
surface materials. By that date, Federal agencies responsible for
drafting or reviewing specifications for products to be procured shall
ensure that the relevant specifications require the use of biobased
playground and athletic surface materials.
(d) Determining overlap with a designated product category in the
EPA's CPG program. Qualifying products within this product category may
overlap with the EPA's CPG-designated recovered content product
categories of Parks and Recreation Products: Playground Surfaces and
Running Tracks. USDA is requesting that manufacturers of these
qualifying biobased products provide information on the BioPreferred
Program's website about the intended uses of the product, information
on whether the product contains any recovered material, in addition to
biobased ingredients, and performance standards against which the
product has been tested. This information will assist Federal agencies
in determining whether a qualifying biobased product overlaps with the
EPA's CPG-designated product categories of Parks and Recreation
Products: Playground Surfaces and Running Tracks and which product
should be afforded the preference in purchasing.
Note 1 to Paragraph (d): Playground and athletic surface
materials within this designated product category can compete with
similar playground and athletic surface materials with recycled
content. According to the Resource Conservation and Recovery Act of
1976, section 6002, Federal agencies must give preference in their
purchasing programs for the U.S. Environmental Protection Agency's
CPG-designated product categories of Parks and Recreation Products:
Playground Surfaces and Running Tracks containing recovered
materials as products. The designation can be found in the
Comprehensive Procurement Guideline, 40 CFR 247.10.
Sec. 3201.140 Powder coatings.
(a) Definition. Powder coatings are polymer resin systems that are
combined with stabilizers, curatives, pigments, and other additives and
ground into a powder. These coatings are applied electrostatically to
metallic surfaces and then cured under heat. Powder coatings are
typically used for coating metals, such as vehicle and bicycle parts,
household appliances, and aluminum extrusions.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 34 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased powder coatings. By that
date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased powder coatings.
Sec. 3201.141 Product packaging.
(a) Definition. Product packaging items are used to protect,
handle, and retain a product during activities related but not limited
to its storage, distribution, sale, and use. These containers are
typically designed to be used once. This category excludes packing and
insulating materials and shopping and trash bags.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 25 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased product packaging. By
that date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased product packaging.
[[Page 32026]]
(d) Determining overlap with a designated product category in the
EPA's CPG program. Qualifying products within this product category may
overlap with the EPA's CPG-designated recovered content product
category of Paper Products: Paperboard and Packaging. USDA is
requesting that manufacturers of these qualifying biobased products
provide information on the BioPreferred Program's website about the
intended uses of the product, information on whether the product
contains any recovered material, in addition to biobased ingredients,
and performance standards against which the product has been tested.
This information will assist Federal agencies in determining whether a
qualifying biobased product overlaps with the EPA's CPG-designated
product category of Paper Products: Paperboard and Packaging and which
product should be afforded the preference in purchasing.
Note 1 to Paragraph (d): Product packaging within this
designated product category can compete with similar product
packaging with recycled content. Under the Resource Conservation and
Recovery Act of 1976, section 6002, the U.S. Environmental
Protection Agency CPG-designated Paper Products: Paperboard and
Packaging containing recovered materials as products for which
Federal agencies must give preference in their purchasing programs.
The designation can be found in the Comprehensive Procurement
Guideline, 40 CFR 247.10.
Sec. 3201.142 Rugs and floor mats.
(a) Definition. Rugs or floor mats are floor coverings that are
used for decorative or ergonomic purposes and that are not attached to
the floor. This category includes items such as area rugs, rug runners,
chair mats, and bathroom and kitchen mats. This category excludes
products composed of woven, tufted, or knitted fiber and a backing
system because these products fall under the ``Carpets'' product
category.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 23 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased rugs and floor mats. By
that date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased rugs and floor
mats.
(d) Determining overlap with a designated product category in the
EPA's CPG program. Qualifying products within this product category may
overlap with the EPA's CPG-designated recovered content product
category of Miscellaneous Products: Mats. USDA is requesting that
manufacturers of these qualifying biobased products provide information
on the BioPreferred Program's website about the intended uses of the
product, information on whether the product contains any recovered
material, in addition to biobased ingredients, and performance
standards against which the product has been tested. This information
will assist Federal agencies in determining whether a qualifying
biobased product overlaps with the EPA's CPG-designated product
category of Miscellaneous Products: Mats and which product should be
afforded the preference in purchasing.
Note 1 to Paragraph (d): Rugs and floor mats within this
designated product category can compete with similar rugs or floor
mats with recycled content. Under the Resource Conservation and
Recovery Act of 1976, section 6002, the U.S. Environmental
Protection Agency CPG-designated Miscellaneous Products: Mats
containing recovered materials as products for which Federal
agencies must give preference in their purchasing programs. The
designation can be found in the Comprehensive Procurement Guideline,
40 CFR 247.17.
Sec. 3201.143 Shopping and trash bags.
(a) Definition. Shopping and trash bags are open-ended bags that
are typically made of thin, flexible film and are used for containing
and transporting items such as consumer goods and waste. Examples
include trash bags, can liners, shopping or grocery bags, pet waste
bags, compost bags, and yard waste bags. This category does not include
product packaging, disposable containers, or semi-durable and non-
durable films.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 22 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased shopping and trash bags.
By that date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased shopping and trash
bags.
(d) Determining overlap with a designated product category in the
EPA's CPG program. Qualifying products within this product category may
overlap with the EPA's CPG-designated recovered content product
category of Non-Paper Office Products: Plastic Trash Bags. USDA is
requesting that manufacturers of these qualifying biobased products
provide information on the BioPreferred Program's website about the
intended uses of the product, information on whether the product
contains any recovered material, in addition to biobased ingredients,
and performance standards against which the product has been tested.
This information will assist Federal agencies in determining whether a
qualifying biobased product overlaps with the EPA's CPG-designated
product category of Non-Paper Office Products: Trash Bags and which
product should be afforded the preference in purchasing.
Note 1 to Paragraph (d): Shopping and trash bags within this
designated product category can compete with similar shopping and
trash bags with recycled content. Under the Resource Conservation
and Recovery Act of 1976, section 6002, the U.S. Environmental
Protection Agency CPG-designated Non-Paper Office Products: Trash
Bags containing recovered materials as products for which Federal
agencies must give preference in their purchasing programs. The
designation can be found in the Comprehensive Procurement Guideline,
40 CFR 247.17.
Sec. 3201.144 Soil amendments.
(a) Definition. Soil amendments are materials that enhance the
physical characteristics of soil through improving water retention or
drainage, improving nutrient cycling, promoting microbial growth, or
changing the soil's pH. This category excludes foliar sprays and
chemical fertilizers.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 72 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased soil amendments. By that
date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased soil amendments.
[[Page 32027]]
(d) Determining overlap with a designated product category in the
EPA's CPG program. Qualifying products within this product category may
overlap with the EPA's CPG-designated recovered content product
categories of Landscaping Products: Compost Made From Recovered Organic
Materials and Landscaping Products: Fertilizer Made From Recovered
Organic Materials. USDA is requesting that manufacturers of these
qualifying biobased products provide information on the BioPreferred
Program's website about the intended uses of the product, information
on whether the product contains any recovered material, in addition to
biobased ingredients, and performance standards against which the
product has been tested. This information will assist Federal agencies
in determining whether a qualifying biobased product overlaps with the
EPA's CPG-designated product categories Landscaping Products: Compost
Made From Recovered Organic Materials and Landscaping Products:
Fertilizer Made From Recovered Organic Materials and which product
should be afforded the preference in purchasing.
Note 1 to Paragraph (d): Soil amendments within this designated
product category can compete with similar soil amendments with
recycled content. Under the Resource Conservation and Recovery Act
of 1976, section 6002, the U.S. Environmental Protection Agency CPG-
designated Landscaping Products: Compost Made From Recovered Organic
Materials and Landscaping Products: Fertilizer Made From Recovered
Organic Materials containing recovered materials as products for
which Federal agencies must give preference in their purchasing
programs. The designation can be found in the Comprehensive
Procurement Guideline, 40 CFR 247.15.
Sec. 3201.145 Surface guards, molding, and trim.
(a) Definition. Surface guards, molding, and trim products are
typically used during construction or manufacturing. These products are
designed to protect surfaces, such as walls and floors, from damage or
to cover the exposed edges of furniture or floors.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 26 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased surface guards, molding,
and trim. By that date, Federal agencies responsible for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased surface guards,
molding, and trim.
Sec. 3201.146 Toys and sporting gear.
(a) Definition. Toys and sporting gear are products that are
designed for indoor or outdoor recreational use including, but not
limited to, toys; games; and sporting equipment and accessories such as
balls, bats, racquets, nets, and bicycle seats. This category does not
include products such as cleaners, lubricants, and oils that are used
to maintain or clean toys and sporting gear.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 32 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased toys and sporting gear.
By that date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased toys and sporting
gear.
Sec. 3201.147 Traffic and zone marking paints.
(a) Definition. Traffic and zone marking paints are products that
are formulated and marketed for marking and striping parking lots,
roads, streets, highways, or other traffic surfaces including, but not
limited to, curbs, crosswalks, driveways, sidewalks, and airport
runways.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 30 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased traffic and zone marking
paints. By that date, Federal agencies responsible for drafting or
reviewing specifications for products to be procured shall ensure that
the relevant specifications require the use of biobased traffic and
zone marking paints.
Sec. 3201.148 Transmission fluids.
(a) Definition. Transmission fluids are liquids that lubricate and
cool the moving parts in a transmission to prevent wearing and to
ensure smooth performance.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 60 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased transmission fluids. By
that date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased transmission
fluids.
(d) Determining overlap with a designated product category in the
EPA's CPG program. Qualifying products within this product category may
overlap with the EPA's CPG-designated recovered content product
category of Vehicular Products: Re-refined Lubricating Oil. USDA is
requesting that manufacturers of these qualifying biobased products
provide information on the BioPreferred Program's website about the
intended uses of the product, information on whether the product
contains any recovered material, in addition to biobased ingredients,
and performance standards against which the product has been tested.
This information will assist Federal agencies in determining whether a
qualifying biobased product overlaps with the EPA's CPG-designated
Vehicular Products: Re-Refined Lubricating Oil and which product should
be afforded the preference in purchasing.
Note 1 to Paragraph (d): Transmission fluids within this
designated product category can compete with similar transmission
fluids with recycled content. Under the Resource Conservation and
Recovery Act of 1976, section 6002, the U.S. Environmental
Protection Agency CPG-designated product categories Vehicular
Products: Re-Refined Lubricating Oil containing recovered materials
as products for which Federal agencies must give preference in their
purchasing programs. The designation can be found in the
Comprehensive Procurement Guideline, 40 CFR 247.11.
[[Page 32028]]Sec. 3201.149 Wall coverings.
(a) Definition. Wall coverings are materials that are applied to
walls using an adhesive. This category includes, but is not limited to,
wallpaper, vinyl wall coverings, and wall fabrics. This category
excludes all types of paints or coatings.
(b) Minimum biobased content. The Federal preferred procurement
product must have a minimum biobased content of at least 62 percent,
which shall be based on the amount of qualifying biobased carbon in the
product as a percent of the total organic carbon in the finished
product.
(c) Preference compliance date. No later than July 6, 2020,
procuring agencies, in accordance with this part, will give a
procurement preference for qualifying biobased wall coverings. By that
date, Federal agencies responsible for drafting or reviewing
specifications for products to be procured shall ensure that the
relevant specifications require the use of biobased wall coverings.
Donald K. Bice,
Deputy Assistant Secretary for Administration, U.S. Department of
Agriculture.
[FR Doc. 2019-14038 Filed 7-3-19; 8:45 am]
BILLING CODE 3410-93-P
