[Federal Register Volume 89, Number 236 (Monday, December 9, 2024)]
[Rules and Regulations]
[Pages 97459-97477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28431]
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Rules and Regulations
Federal Register
________________________________________________________________________
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. 89, No. 236 / Monday, December 9, 2024 /
Rules and Regulations
[[Page 97459]]
DEPARTMENT OF AGRICULTURE
7 CFR Part 3201 and 3202
Rural Business-Cooperative Service
7 CFR Part 4270
[Docket No. RBS-22-BUSINESS-0004]
RIN 0570-AB05
Biobased Markets Program
AGENCY: Rural Business-Cooperative Service, USDA.
ACTION: Final rule.
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SUMMARY: The Rural Business-Cooperative Service (RBCS or the Agency),
an agency of the Rural Development (RD) mission area within the U.S.
Department of Agriculture (USDA), is issuing a final rule to adopt
changes from the Agriculture Improvement Act of 2018 (2018 Farm Bill)
that apply to the Biobased Markets (BioPreferred) Program. These
changes include the merger of the Guidelines for Designating Biobased
Products for Federal Procurement and the Voluntary Labeling Program for
Biobased Products into one streamlined regulation, Biobased Markets
(BioPreferred) Program.
DATES: This final rule is effective January 8, 2025.
ADDRESSES: Information regarding the BioPreferred[supreg] Program is
available at biopreferred.gov.
FOR FURTHER INFORMATION CONTACT: Vernell Thompson, Procurement Analyst,
USDA RD, 1400 Independence Avenue SW, Washington, DC 20250-1522, STOP
3250; email: [email protected]; phone (202) 720-4145.
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. Authority
II. Background
III. Discussion of Public Comments
A. Definitions
B. Criteria for Eligibility
C. Procurement Programs
D. Category Designation
E. Determining Biobased Content
F. Initial Approval Process/Oversight and Monitoring
G. Miscellaneous/General
IV. Summary of Changes
V. Executive Orders/Acts
A. Executive Order 12866--Classification
B. Executive Order 12372--Intergovernmental Consultation
C. Paperwork Reduction Act
D. National Environmental Policy Act
E. Regulatory Flexibility Act
F. Administrative Pay-As-You-Go-Act of 2023
G. Executive Order 12988--Civil Justice Reform
H. Unfunded Mandates Reform Act (UMRA)
I. Executive Order 13132--Federalism
J. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
K. E-Government Act Compliance
L. Civil Rights Impact Analysis
M. USDA Non-Discrimination Statement
N. Severability
I. Authority
The USDA Biobased Markets Program, called the BioPreferred[supreg]
Program, is established under the authority of Section 9002 of the Farm
Security and Rural Investment Act (FSRIA) of 2002 (Pub. L. 107-171)
(the 2002 Farm Bill), as amended by the Food, Conservation, and Energy
Act of 2008 (Pub. L. 10-246) (the 2008 Farm Bill), the Agricultural Act
of 2014 (Pub. L. 113-79) (the 2014 Farm Bill), and the Agriculture
Improvement Act of 2018 (Pub. L. 115-334) (the 2018 Farm Bill). Section
9002 of the 2002 Farm Bill, as amended by the 2008, 2014, and 2018 Farm
Bills, is referred to in this rule as section 9002 of FSRIA.
II. Background
On January 24, 2024, the Agency published a proposed rule, 89 FR
4770, with request for comments for the purpose of implementing the
amendments made to section 9002 of FSRIA by the 2018 Farm Bill by
combining the Guidelines for Designating Biobased Products for Federal
Procurement (7 CFR part 3201) and the Voluntary Labeling Program for
Biobased Products (7 CFR part 3202), the legacy rules of the
BioPreferred Program, into one regulation, 7 CFR part 4270, and making
amendments to streamline and improve the BioPreferred Program's rules.
The legacy rules established the two core initiatives of the
BioPreferred Program. Part 3201 of title 7 of the Code of Federal
Regulations detailed the rules for the procurement of Biobased Products
by Federal Agencies and their contractors, established the process for
designating categories of Biobased Products for preferred Federal
procurement, maintained the list of Designated Product Categories, and
outlined the requirements for Biobased Products to qualify for
preferred Federal procurement. Part 3202 of title 7 of the Code of
Federal Regulations established the rules for manufacturers and vendors
of Biobased Products to become certified to use the USDA Certified
Biobased Product Label (Label) and provided rules for maintaining
certification and utilizing the Label. With this rulemaking, the Agency
is merging the legacy rules into one streamlined regulation that will
facilitate the objective of the BioPreferred Program, which is to
encourage the increased use of Biobased Products in all market sectors.
Additionally, the Agency believes these changes will benefit
BioPreferred Program Stakeholders by implementing process improvements
and tying the two initiatives more closely together, making it easier
to qualify for both initiatives.
III. Discussion of Public Comments
Sixteen respondents submitted comments on the proposed rule. The
Agency reviewed the public comments in the development of the final
rule. A discussion of the comments is provided as follows.
A. Definitions
a. Three respondents expressed support for the inclusion of
Renewable Chemicals in the definition of the term Biobased Product.
Agency Response: The Agency thanks the respondents for their
support of the change to the definition of Biobased Product.
b. One respondent recommended establishing the BioPreferred
Program's definition of biobased as the uniform definition throughout
the federal government.
Agency Response: The Agency agrees that it is important to have a
uniform definition of biobased throughout the federal government. The
requirements
[[Page 97460]]
established by the BioPreferred Program apply to all federal agencies,
and therefore, the definitions established by the BioPreferred Program
apply to all federal agencies as well. The Agency will continue efforts
to educate federal agencies and their contractors about Biobased
Products and the requirements associated with the BioPreferred Program.
B. Criteria for Eligibility
a. Three respondents expressed support for establishing a single
participation process under which all products must undergo Biobased
Content Testing using ASTM D6866.
Agency Response: The Agency thanks the respondents for their
support in establishing a single participation process. For reader
clarification, ASTM D6866 is the American Society for Testing and
Materials (ASTM) International standard test methods for determining
the Biobased Content of solid, liquid, and gaseous samples using
radiocarbon analysis.
b. Two respondents expressed concern regarding the added
requirements for all products to undergo Biobased Content Testing. The
respondents noted that, through collaboration with USDA Forest Service
Forest Products Lab (FPL), the Agency has established guidelines for
testing wood products, under which specific types of wood and
engineered wood products are exempt from testing. The respondents
recommended that the Agency continue to uphold these guidelines under
this final rule. The respondents asserted that changing the testing
requirements for products that fall under the exemption guidelines
established with FPL would add unnecessary cost to manufacturers (and
therefore purchasers) and hinder the efficiency of the BioPreferred
Program.
Agency Response: The Agency agrees that the guidelines for testing
wood products that have been established in collaboration with FPL
should be maintained. The Agency is not intending to change these
guidelines with the implementation of this final rule. Products that
are eligible to be exempt from testing under the guidelines established
in collaboration with FPL will be exempt from testing as described by
Sec. 4270.7(d)(1) in this final rule.
c. Two respondents expressed support for maintaining the raw
material sourcing innovative criterion that allows participants to
demonstrate that their Biobased Product is innovative if the raw
material is sourced from responsible sources according to standards
such as ASTM Standard D7612--Standard Practice for Categorizing Wood
and Wood-Based Products According to Their Fiber Sources.
Agency Response: The Agency thanks the respondents for their
support.
d. One respondent expressed support for the addition of the raw
material sourcing innovative criterion that allows participants to
demonstrate that their Biobased Product is innovative if the raw
material is grown, harvested, manufactured, processed, sourced, or
applied in other sustainable and ethically sourced ways as determined
by the Agency.
Agency Response: The Agency thanks the respondent for their
support.
e. One respondent recommended that Biobased Products should never
be grown, sold, or used as an energy source and strongly recommended
against establishing any rules, requirements, or funding opportunities
related to biofuels.
Agency Response: The Agency notes that biofuels, including motor
vehicle fuels, heating oil, and electricity, are specifically excluded
from the BioPreferred Program as mandated by section 9002 of FSRIA, and
as such, this is outside the scope of the request for comment on the
proposed rule.
C. Procurement Programs
a. One respondent would like to see increased enforcement of the
requirements for federal agencies and their contractors to purchase
Qualified Biobased Products. The respondent noted that the U.S.
Government is the single largest purchaser of consumer goods in the
world, yet this is not reflected in the reported levels of Biobased
Products purchases.
Agency Response: The Agency appreciates this comment and agrees
that increased education and enforcement of the requirements to
purchase Qualified Biobased Products is needed. The Agency is actively
trying to increase awareness of these requirements through outreach
efforts such as hosting trainings for federal agencies as requested,
reminding federal agencies and their contractors about reporting
requirements near the end of each fiscal year, and reviewing
solicitations for compliance. These efforts have led to an increase of
1,000% in reporting of Biobased Product purchases in recent years.
While this increase is encouraging, the Agency acknowledges that more
is needed and hopes to see this trend continue with the implementation
of Executive Order (E.O.) 14081, which requires federal agencies to
report their Biobased Product purchasing to the Office of Management
and Budget.
b. One respondent expressed concerns with section 6 of E.O. 14081,
Executive Order on Advancing Biotechnology and Biomanufacturing
Innovation for a Sustainable, Safe, and Secure American Bioeconomy. The
respondent asserted that E.O. 14081 has a very narrow window of
improving the procurement by federal agencies for Renewable Chemicals
and Biobased Products by 2024, and by the time staff are trained on the
E.O., it may be rescinded by the next administration. The respondent
requested that the concepts described in section 6 of E.O. 14081 be
incorporated in the reauthorization of the next Farm Bill. The
respondent asserted that the guidelines on procuring Biobased Products
provided in section 6 of E.O. 14081 need to be codified in legislation
as agencies have not been given direction in the implementation of the
BioPreferred Program since its inception in the 2002 Farm Bill.
Agency Response: While the contents of E.O. 14081 and legislative
changes to the Farm Bill are outside the scope of the request for
comment on the proposed rule, the Agency agrees that efforts are needed
to ensure federal agencies and their contractors are aware of and
understand the requirements for purchasing Qualified Biobased Products.
D. Category Designation
a. Two respondents expressed support for the revised category
designation process included in the proposed rule. The respondents
noted that the revised process will encourage transparency and
timeliness in the procurement of Biobased Products by federal agencies.
One of the respondents further noted that the rapid advancement of
sophisticated fermentation techniques is leading to the development of
Biobased Products and Renewable Chemicals at an increasing rate and a
timely response to these advancements will be necessary for the
BioPreferred Program to keep pace with industry advancements. Thus, the
respondent supported the changes to the category designation process.
Agency Response: The Agency thanks the respondents for their
support for the revised category designation process.
b. Two respondents recommended maintaining the category designation
process established in the legacy rules. The respondents noted that the
process established in the legacy rules is transparent and provides
clear guardrails regarding procedural steps for designating product
categories. Specifically, the respondents were concerned that without
going through
[[Page 97461]]
the regulatory process, the revised process may not allow for the
collection and evaluation of Stakeholder feedback on category additions
and updates. Further, the respondents were concerned that the revised
process would lead to a loss of clear requirements to provide
Stakeholders with adequate notice and opportunity to comment, and in
turn, the requirement for the Agency to consider and respond to all
comments would be lost. The respondents strongly encouraged the Agency
to establish similar, robust procedures for notice, comment, and
Stakeholder feedback should the Agency move forward with the revised
process.
Agency Response: The Agency strongly agrees with maintaining the
transparency and robustness of the category designation process, and
the Agency intends to ensure that the revised designation process
provides Stakeholders with opportunities to review and provide input
equal to those provided by the process established by the legacy rules.
Under the revised category designation process, the Agency intends to
notify Stakeholders of potential updates and additions to designated
product categories. While these updates will no longer be made through
the formal rulemaking process, the Agency acknowledges that many
Stakeholders have become accustomed to learning about designated
category changes through Federal Register notices. As such, the Agency
intends to notify Stakeholders of changes to designated product
categories through Federal Register notices that will direct them to
view and submit comments on the changes through the BioPreferred
Program's website. Similarly, the Agency intends to maintain the
process for considering and responding to public comments on designated
product categories; this process will take place on the BioPreferred
Program's website rather than as a step in the formal rulemaking
process. The Agency believes that the revised process will create a
balance between proposing and implementing changes in a timely manner
and maintaining the transparency of the process established by the
legacy rules.
E. Determining Biobased Content
a. One respondent urged the Agency to require Biobased Content
Testing for products to qualify for the federal procurement preference.
The respondent asserted that without required testing, there is a
heightened risk for greenwashing and fraud. The respondent also
recommended establishing Biobased Content audit procedures for products
that are qualified to receive the federal procurement preference.
Agency Response: The Agency appreciates these comments. The Agency
notes that under section 9002 of FSRIA, any Biobased Product that meets
the requirement of one or more designated product category is qualified
to receive a federal procurement preference. This means that Biobased
Products may be qualified to receive a federal procurement preference
even if they do not participate in the BioPreferred Program. Qualified
Biobased Products that participate in the BioPreferred Program will be
required to undergo the same Biobased Content Testing and auditing
procedures as certified products according to this final rule. While
the Agency is unable to establish requirements for products that do not
participate in the BioPreferred Program, the Agency believes it is
important for federal buyers to be aware of Biobased Content
requirements and ask for validation of Biobased Content claims when
making purchasing decisions. To that end, the legacy rules included a
stipulation that required manufacturers and vendors to provide federal
agencies information to verify Biobased Content claims for Qualified
Biobased Products upon request. The Agency realized this stipulation
was unintentionally left out of the proposed rule language and is
revising the final rule to include it.
b. One respondent strongly supported the continued use of ASTM
D6866 to measure Biobased Content. The respondent also recommended
specifying the use of ASTM D6866 Method B when conducting Biobased
Content Testing, rather than also allowing the use of ASTM D6866 Method
C as the instruments used for Method C tend to be less accurate than
those used in Method B. The respondent stated that the results produced
by ASTM D6866 Method B are easily understood by regulators, policy
makers, corporate officers, and the public, and the overwhelming
advantage of this test method is that it is an independent and
standardized laboratory measurement that produces highly accurate and
precise values. This means that the test results can be easily
reproduced to verify the value if the results are challenged. The
respondent specifically supported the use of ASTM D6866 Method B over
the test method EN 16785-2 and mass balance measurements. The
respondent asserted that calculation-based approaches, such as mass
balance calculations, are difficult to audit and could lead to
greenwashing of Biobased Content claims.
Agency Response: The Agency thanks the respondent for their support
of the continued use of ASTM D6866 to validate Biobased Content claims.
The Agency agrees with the use of ASTM D6866 Method B when products
undergo Biobased Content Testing for certification and notes that this
is current practice. The Agency feels that specifying the use of Method
B in the final rule is unnecessary but will refer to Method B in
informational materials on the BioPreferred Program's website and in
information sent to participants prior to testing.
c. Two respondents strongly encouraged the Agency to include an
additional certification pathway that utilizes mass balance methods to
verify content claims, a recommendation that was included in the
Conference Report that accompanied the 2018 Farm Bill. The respondents
stated that while the ASTM D6866 test method is adequate for
determining the amount of traceable Biobased Content present in a
finished product, it is unable to account for renewable feedstocks
attributed under the mass balance approach. The respondents asserted
that modernizing the BioPreferred Program to include the mass balance
approach as one of the approved methods to qualify for the BioPreferred
Program would advance the program's goals of furthering the bioeconomy
and providing new markets for farm commodities. The respondents also
stated that incorporating the mass balance method to approve products
to qualify for the BioPreferred Program would substantially lower the
barrier to entry for Participating Organizations and further
incentivize U.S. production of mass balance Biobased Products and their
related markets.
Agency Response: The Agency appreciates the comments. The Agency
notes that it is required to follow the specifications included within
the 2018 Farm Bill itself; some of the recommendations in the
accompanying Conference Report were not included in the 2018 Farm Bill,
and establishing a certification pathway using mass balance approaches
is one such recommendation. The Agency acknowledges that industry use
of the mass balance approach can help advance the BioPreferred
Program's goals of furthering the bioeconomy and providing new markets
for farm commodities. However, the Agency believes that further
consideration is needed before including an additional certification
pathway that utilizes mass balance methods to verify content claims.
The Agency also acknowledges
[[Page 97462]]
that the mass balance process may make it easier for manufacturers to
transition to more sustainable feedstocks because segregated production
pathways are not needed. The Agency notes that products produced by
mass balance methods are not Biobased Products as defined by this final
rule. To maintain the integrity of the Label and to prevent diluting
public understanding of what the Label means, it is important that the
Agency maintain a consistent definition of what it means for a product
to be biobased. The Agency feels that allowing alternative methods that
certify claims other than Biobased Content as defined by this final
rule would cause confusion about what the Label is reporting. The
Agency believes that including the mass balance approach as one of the
approved methods to participate in the BioPreferred Program would
require establishing a separate Label and certification process with
separate requirements to those established for Biobased Products, which
would require significant resources. The Agency will continue to stay
informed of any advancements in the use of the mass balance approach
and will coordinate with program Stakeholders and the program's
Technical Advisory Committee to evaluate these advancements as
resources allow.
d. Two respondents recommended allowing alternative test methods in
addition to the use of ASTM D6866 to validate Biobased Content claims.
The respondents stated that the ASTM D6866 test method essentially
discounts the relative weight of the non-carbon biobased components in
products as ASTM D6866 only measures the weight of carbon content in a
product. The respondents noted that certain types of products, such as
wood products, contain a significant amount of molecular oxygen, and
failing to account for molecular oxygen substantially underrepresents
the proportion of ``biobased'' materials. The respondents recommended
amending the final rule to allow for the use of alternative, more
accurate methodologies for measuring Biobased Content as future
industry consensus standards are developed and adopted.
Agency Response: The Agency appreciates the comments. The Agency
believes it is important to maintain a consistent definition of
Biobased Content across all types of materials to maximize
understanding of what the Label means. At this time, the Agency defines
Biobased Content as the amount of recent, biologically derived organic
carbon in the material or product expressed as a percent of weight
(mass) of the total organic carbon in the material or product. The
Agency feels that allowing alternative test methods that measure
attributes other than Biobased Content as defined by this final rule
would cause confusion about what the Label is reporting.
e. One respondent recommended adding a certification attribute that
quantifies the carbon intensity of a given product.
Agency Response: This is outside the scope of the request for
comment on the proposed rule, which seeks to implement the amendments
made to section 9002 of FSRIA by the 2018 Farm Bill.
f. Two respondents recommended allowing testing exemptions for
products that have been certified to industry consensus standards that
are substantively equivalent to the third-party requirements set out in
the proposed rule. The respondents noted that doing so would avoid
duplicative costs and compliance burdens.
Agency Response: The Agency appreciates these comments. The Agency
agrees that, where possible, efforts should be made to minimize burdens
associated with participating in the BioPreferred Program. To that end,
the Agency allows testing exemptions in specific situations where the
Biobased Content of an exempt product has been demonstrated using the
alternative methods specified in Sec. 4270.7(d)(1) of this final rule.
Maintaining the integrity of the BioPreferred Program and the Label is
of upmost importance, and the Agency believes that accepting testing
that has been done outside of the Agency's oversight could erode that
integrity.
g. One respondent expressed support for allowing testing exemptions
for Biobased Product Ingredients with the same formulation as other,
already-approved products. The respondent noted that allowing these
exemptions reduces the cost and time burdens associated with
participating in the BioPreferred Program, which is important as many
potential participants already have tight margins as they work to scale
their operations.
Agency Response: The Agency thanks the respondent for their
support.
h. Two respondents recommended specifying that Biobased Content
Testing must be done by a laboratory that is ISO/IEC 17025 accredited
by an International Laboratory Accreditation Cooperation (ILAC)
recognized accreditation body.
Agency Response: For reader clarity, International Organization for
Standardization (ISO) is an independent, non-governmental,
international standard development organization composed of
representatives from the national standards organizations of member
countries. International Electrotechnical Commission (IEC) is an
organization that prepares and publishes international standards for
all electrical, electronic, and related technologies.
The Agency agrees that ISO accreditation is important to maintain
the integrity of the certification process. While the final rule does
not specify that testing facilities must be ISO/IEC 17025 accredited,
the Agency does require laboratories that are approved to perform
testing for the BioPreferred Program to maintain ISO/IEC 17025
accreditation. The Agency believes it is not necessary to specify in
the final rule that laboratories must be ISO/IEC 17025 accredited since
the Agency verifies accreditation before laboratories are approved to
perform testing for the BioPreferred Program.
i. One respondent recommended specifying that laboratories that are
approved to perform testing for the BioPreferred Program be carbon-14
tracer-free facilities.
Agency Response: The Agency agrees that it is important for
laboratories that are approved to perform testing for the BioPreferred
Program be carbon-14 tracer-free facilities to minimize the potential
for contamination of certification samples. Laboratories that are
approved to perform testing for the BioPreferred Program sign an
agreement with the Agency; the Agency believes the tracer-free
stipulation would be better suited to be included in the laboratory
agreement rather than in this final rule.
F. Initial Approval Process/Oversight and Monitoring
a. One respondent recommended reducing the time period between
recertification requirements (referred to by the respondent as audits)
from every 5 years to every 2 to 3 years. The respondent emphasized
that these requirements must include retesting using ASTM D6866 rather
than allowing a self-declaration attesting that the formulation has not
been altered. The respondent asserted that, given the frequency of
supply chain and formulation changes required in the Biobased Products
industry, a 5-year sampling period does not guarantee that products
displaying the USDA Certified Biobased Product Label will contain the
Biobased Content their companies receive certification for. The
respondent also recommended establishing a blind auditing procedure to
randomly select products for testing in between recertification
periods. The respondent
[[Page 97463]]
stated that coupling blind audits with more frequent recertification
requirements is the best way to ensure accurate, fair validation.
Agency Response: The Agency appreciates these comments. The Agency
notes that under the revised requirements, participants will be
required to participate in an annual informational audit, during which
they will self-verify that their company and product information
remains up to date, as well as have their products recertified by
undergoing ASTM D6866 testing every 5 years. Under the legacy rules,
informational audits and retesting audits both took place every 6
years. The Agency believes that establishing an annual information
audit during which participants must confirm or update their company
and product information will be frequent enough to remind participants
to notify the Agency of supply chain changes that may affect their
product formulations. While the Agency agrees that more frequent
retesting requirements, including the addition of a blind auditing
procedure, would better ensure that the Biobased Content of certified
products remain valid, the Agency must consider the burden associated
with maintaining certification on program participants. The Agency
believes that combining annual informational audits with 5-year
recertification requirements balances the need to obtain updated
information from participants while minimizing the burdens associated
with retesting. However, the final rule does allow the Agency to
request that a product be retested outside of the 5-year certification
period if concerns about the validity of the product's Biobased Content
are raised.
b. One respondent recommended reducing the window of time allowed
to conform to the updated requirements for participants with products
that are qualified but not certified or products that have been
certified for more than 5 years. The respondent asserted that a 3-year
window to conform to the final rule is too much time and recommended
reducing this to 6 months to a year maximum and any product that does
not conform within that timeframe should be removed from the
BioPreferred Program.
Agency Response: The Agency appreciates these comments. The Agency
agrees that allowing a 3-year window to conform to the final rule is a
generous amount of time. However, given the large number of products
that will be required to undergo Biobased Content Testing to conform to
the updated requirements, the Agency believes that a grace period of
this length is needed to minimize the burden that may be placed on
program resources in undertaking these activities. The Agency notes
that all participants will be required to participate in annual
informational audits during the grace period and may be removed from
the BioPreferred Program's website if they fail to participate in such
audits.
c. One respondent noted that the success for this type of
certification is dependent on its universality and flexibility.
Agency Response: The Agency thanks the respondent for their
comment.
G. Miscellaneous/General
a. Five respondents expressed support for the Agency's efforts to
streamline the BioPreferred Program's rules.
Agency Response: The Agency thanks the respondents for their
support.
b. One respondent expressed support for streamlining the
BioPreferred Program's rules but expressed concern that this final rule
does not do enough to streamline the program for participants. The
respondent stated that streamlining does not improve important issues
within the BioPreferred Program, such as improving the procurement
initiative. To further assist in the implementation and enforcement of
Biobased Product purchasing and reporting requirements, the respondent
requested that procurement officers be identified for the BioPreferred
Program.
Agency Response: The Agency appreciates the comments. The Agency
believes the efforts to streamline the BioPreferred Program will have
positive impacts for participants and potential participants by
establishing a single, efficient process through which products are
determined to be qualified for a federal procurement preference and
eligible to use the Label. The changes to the category designation
process will also streamline the program for participants by making it
quicker and easier to designate new categories, allowing more products
to qualify for the federal procurement preference. The Agency notes
that the BioPreferred Program does not itself procure products, and
therefore, procurement officers are not needed within the BioPreferred
Program. The Agency will continue its efforts to educate federal
agencies (including procurement officers) and their contractors on the
requirements for purchasing Qualified Biobased Products and reporting
such purchases.
c. One respondent expressed general support for the BioPreferred
Program. The respondent noted that the BioPreferred Program presents a
significant opportunity to promote sustainability, innovation, and
economic growth. The respondent also noted that the BioPreferred
Program parallels the success of the National Organic Program, and by
providing a clear framework for the certification and labeling of
Biobased Products, the final rule will enhance consumer awareness of
and confidence in Biobased Products in a similar manner to what the
National Organic Program has done for organic products. The respondent
further noted that the BioPreferred Program has the potential to create
new avenues for job growth and economic development, particularly in
rural communities. Additionally, the respondent noted that by
incentivizing investment in Biobased Product research, production, and
manufacturing, the BioPreferred Program can help bolster rural
economies.
Agency Response: The Agency thanks the respondent for their
support.
d. Three respondents recommended establishing North American
Industry Classification System (NAICS) codes for Biobased Products with
this final rule.
Agency Response: While establishing NAICS codes are outside the
scope of the request for comment on the proposed rule, the Agency
strongly agrees that it is necessary to establish NAICS codes for
Biobased Products and will share these comments with the Department of
Commerce. The Agency will continue its efforts to encourage the
Department of Commerce to establish NAICS codes for Biobased Products
and will continue to offer support as needed to advance these efforts.
e. One respondent recommended making updates to the BioPreferred
Program website to make it more consumer friendly.
Agency Response: The Agency appreciates this comment. While this is
outside the scope for the proposed rule request for comment, the Agency
agrees that the BioPreferred Program's website is in need of updates to
make information easier to find and understand. The Agency is currently
working to refresh the BioPreferred Program's website to make these
changes.
f. One respondent recommended that the BioPreferred Program be
incorporated into the Coordinated Framework established by section 8 of
E.O. 14081.
Agency Response: This is outside the scope of the proposed rule
request for comment.
g. One respondent requested the proposed rule plain language
summary.
[[Page 97464]]
Agency Response: The Agency provided the appropriate information
for locating the plain language summary at regulations.gov.
h. One respondent inquired whether there would be an interagency
review of the proposed rule.
Agency Response: The proposed rule did not require official
interagency review because the rulemaking was designated as non-
significant.
IV. Summary of Changes
The final rule will not include revisions based on the public
comments received in response to the proposed rule. The final rule will
include two technical amendments summarized below.
a. In the final rule, Sec. 4270.7(a) is being revised to include
the last sentence from 7 CFR 3201.7(a). While reviewing the public
comments, the Agency determined that this stipulation was
unintentionally excluded from the proposed rule language. This
requirement is being added to the final rule language to clarify that
manufacturers and vendors of Qualified Biobased Products may be asked
to prove their Biobased Content claims regardless of whether they
participate in the BioPreferred Program.
b. In addition, Sec. 4270.7(c)(2)(i) is being revised to correct
the notation used in the Complex Assemblies equation. The proposed rule
used ``of the nth component'' and the final rule is being revised to
correct this to ``of the ith component.''
V. Executive Orders/Acts
A. Executive Order 12866--Classification
This final rule has been determined to be not significant for
purposes of Executive Order 12866 and, therefore, has not been reviewed
by the Office of Management and Budget (OMB).
B. Executive Order 12372--Intergovernmental Consultation
This program is not subject to the requirements of Executive Order
12372, Intergovernmental Review of Federal Programs, as implemented
under 2 CFR part 415.
C. Paperwork Reduction Act
The information collection and recordkeeping requirements contained
in this final rule will not be effective until approved by OMB, subject
to the submission of a paperwork package submitted to OMB pursuant to
the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).
D. National Environmental Policy Act
In accordance with the National Environmental Policy Act of 1969,
Public Law 91-190, this final rule has been reviewed in accordance with
7 CFR part 1970. The Agency has determined that (i) this action meets
the criteria established in 7 CFR 1970.53(f); (ii) no extraordinary
circumstances exist; and (iii) the action is not ``connected'' to other
actions with potentially significant impacts, is not considered a
``cumulative action,'' and is not precluded by 40 CFR 1506.1.
Therefore, the Agency has determined that the action does not have a
significant effect on the human environment, and therefore neither an
Environmental Assessment nor an Environmental Impact Statement is
required.
E. Regulatory Flexibility Act
The final rule has been reviewed with regard to the requirements of
the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has
determined and certified by signature on this document that this final
rule will not have a significant economic impact on a substantial
number of small entities since this rulemaking action does not involve
a new or expanded program nor does it require any more action on the
part of a small business than required of a large entity.
F. Administrative Pay-As-You-Go-Act of 2023
The Administrative Pay-As-You-Go-Act of 2023 (Act) (See Fiscal
Responsibility Act of 2023, Pub. L. 118-5, 137 Stat 31, div. B, title
III) requires the U.S. Government Accountability Office (GAO) to assess
agency compliance with the Act, which establishes requirements for
administrative actions that affect direct spending, in GAO's major rule
reports. The Act does not apply to this final rule because it does not
increase direct spending.
G. Executive Order 12988--Civil Justice Reform
This final rule has been reviewed under Executive Order 12988. In
accordance with this final rule: (1) unless otherwise specifically
provided, all State and local laws that conflict with this final rule
will be preempted; (2) no retroactive effect will be given to this
final rule except as specifically prescribed in the final rule; and (3)
administrative proceedings of the National Appeals Division of the
Department of Agriculture (7 CFR part 11) must be exhausted before
bringing suit in court that challenges action taken under this final
rule.
H. Unfunded Mandates Reform Act (UMRA)
Title II of the UMRA, Public Law 104-4, establishes requirements
for Federal Agencies to assess the effects of their regulatory actions
on State, local, and Tribal Governments and on the private sector.
Under section 202 of the UMRA, Federal Agencies generally must prepare
a written statement, including cost-benefit analysis, for proposed and
Final Rules with ``Federal mandates'' that may result in expenditures
to State, local, or Tribal Governments, in the aggregate, or to the
private sector, of $100 million or more in any year. When such a
statement is needed for a final rule, section 205 of the UMRA generally
requires a Federal Agency to identify and consider a reasonable number
of regulatory alternatives and adopt the least costly, most cost-
effective, or least burdensome alternative that achieves the objectives
of the final rule.
This final rule contains no Federal mandates (under the regulatory
provisions of title II of the UMRA) for State, local, and Tribal
Governments or for the private sector. Therefore, this final rule is
not subject to the requirements of sections 202 and 205 of the UMRA.
I. Executive Order 13132--Federalism
The policies contained in this final rule do not have any
substantial direct effect on States, on the relationship between the
National Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Nor does this
final rule impose substantial direct compliance costs on State and
local governments. Therefore, consultation with the States is not
required.
J. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
This final rule has been reviewed in accordance with the
requirements of Executive Order 13175, Consultation and Coordination
with Indian Tribal Governments. Executive Order 13175 requires Federal
agencies to consult and coordinate with tribes on a government-to-
government basis on policies that have Tribal implications, including
regulations, legislative comments or proposed legislation, and other
policy statements or actions that have substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes or on the distribution of power and
responsibilities between the
[[Page 97465]]
Federal Government and Indian tribes. Consultation is also required for
any regulation that preempts Tribal law or that imposes substantial
direct compliance costs on Indian Tribal governments and that is not
required by statute.
The Agency has determined that this final rule does not, to our
knowledge, have Tribal implications that require formal Tribal
consultation under Executive Order 13175. If a Tribe requests
consultation, the Agency will work with the Office of Tribal Relations
to ensure meaningful consultation is provided where changes, additions
and modifications identified herein are not expressly mandated by
Congress.
K. E-Government Act Compliance
RD is committed to 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 and to promote the use of the internet and other
information technologies to provide increased opportunities for citizen
access to Government information and services, and for other purposes.
L. Civil Rights Impact Analysis
RD has reviewed this final rule in accordance with USDA Regulation
4300-4, Civil Rights Impact Analysis, to identify any major civil
rights impacts the final rule might have on program participants on the
basis of age, race, color, national origin, sex, disability, marital or
familial status. Based on the review and analysis of the final rule and
all available data, issuance of this final rule is not likely to
negatively impact low and moderate-income populations, minority
populations, women, Indian tribes or persons with disability, by virtue
of their age, race, color, national origin, sex, disability, or marital
or familial status. No major civil rights impact is likely to result
from this final rule.
M. USDA Non-Discrimination Statement
In accordance with Federal civil rights laws and USDA civil rights
regulations and policies, the USDA, its Mission Areas, agencies, staff
offices, employees, and institutions participating in or administering
USDA programs are prohibited from discriminating based on race, color,
national origin, religion, sex, gender identity (including gender
expression), sexual orientation, disability, age, marital status,
family/parental status, income derived from a public assistance
program, political beliefs, or reprisal or retaliation for prior civil
rights activity, in any program or activity conducted or funded by USDA
(not all bases apply to all programs). Remedies and complaint filing
deadlines vary by program or incident.
Program information may be made available in languages other than
English. Persons with disabilities who require alternative means of
communication to obtain program information (e.g., Braille, large
print, audiotape, American Sign Language) should contact the
responsible Mission Area, agency, or staff office; or the 711 Relay
Service.
To file a program discrimination complaint, a complainant should
complete a Form AD-3027, USDA Program Discrimination Complaint Form,
which can be obtained online at usda.gov/sites/default/files/documents/ad-3027.pdf from any USDA office, by calling (866) 632-9992, or by
writing a letter addressed to USDA. The letter must contain the
complainant's name, address, telephone number, and a written
description of the alleged discriminatory action in sufficient detail
to inform the Assistant Secretary for Civil Rights (ASCR) about the
nature and date of an alleged civil rights violation. The completed AD-
3027 form or letter must be submitted to USDA by:
a. Mail: U.S. Department of Agriculture, Office of the Assistant
Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC
20250-9410; or
b. Fax: (833) 256-1665 or (202) 690-7442; or
c. Email: [email protected].
N. Severability
It is USDA's intention that the provisions of this final rule shall
operate independently of each other. In the event that this final rule
or any portion of this final rule is ultimately declared invalid or
stayed as to a particular provision, it is USDA's intent that the final
rule nonetheless be severable and remain valid with respect to those
provisions not affected by a declaration of invalidity or stayed. USDA
concludes it would separately adopt all of the provisions contained in
this final rule.
List of Subjects in 7 CFR Parts 3201, 3202, and 4270
Biobased products, Business and industry, and Government
procurement.
For the reasons stated in the preamble, USDA amends chapters XXXII
and XLII of title 7 of the Code of Federal Regulations as follows:
CHAPTER XXXII--OFFICE OF PROCUREMENT AND PROPERTY MANAGEMENT
PART 3201 [REMOVED AND RESERVED]
0
1. Under the authority of 7 U.S.C. 8102, remove and reserve part 3201.
PART 3202 [REMOVED AND RESERVED]
0
2. Under the authority of 7 U.S.C. 8102, remove and reserve part 3202.
CHAPTER XLII--RURAL BUSINESS-COOPERATIVE SERVICE
0
3. Add part 4270, consisting of Sec. Sec. 4270.1 through 4270.99, to
read as follows:
PART 4270--USDA BIOBASED MARKETS PROGRAM: FEDERAL PROCUREMENT AND
VOLUNTARY LABELING
Sec.
4270.1 Purpose and scope.
4270.2 Definitions.
4270.3 Applicability.
4270.4 Criteria for eligibility
4270.5 Procurement programs.
4270.6 Category designation.
4270.7 Determining Biobased Content.
4270.8 [Reserved]
4270.9 Initial approval process.
4270.10 [Reserved]
4270.11 Requirements associated with promotional certification
materials.
4270.12 Violations of program requirements.
4270.13 Appeal process.
4270.14 Reporting and recordkeeping.
4270.15 Oversight and monitoring.
4270.16-4270.98 [Reserved]
4270.99 OMB control number.
Authority: 7 U.S.C. 8102.
Sec. 4270.1 Purpose and scope.
(a) This part sets forth the procedures and guidelines for the
implementation of the USDA Biobased Markets Program, called the
BioPreferred[supreg] Program, established by section 9002 of the Farm
Security and Rural Investment Act of 2002 (FSRIA) as amended by the
Food, Conservation, and Energy Act of 2008, and further amended by the
Agricultural Act of 2014, and the Agriculture Improvement Act of 2018
(Pub. L. 107-171, 116 Stat. 476, 7 U.S.C. 8102).
(b) The guidelines in this part establish:
(1) A process for designating categories of products that are, or
can be, produced with biobased Intermediate Ingredients or feedstocks
and whose procurement by procuring agencies and other relevant
Stakeholders will carry out the objectives of section 9002 of FSRIA;
[[Page 97466]]
(2) The criteria for eligibility and the process through which
Biobased Products can participate in the BioPreferred Program, be
subject to preferred Federal procurement, and be eligible to display
the USDA Certified Biobased Product Label;
(3) Specifications for the correct and incorrect uses of the USDA
Certified Biobased Product Label and Certification Icon, which apply to
Participating Organizations and Other Entities; and
(4) Actions that constitute noncompliance with this part.
Sec. 4270.2 Definitions
Agricultural materials. Plant, animal, and marine matter, raw
materials or residues used in the manufacturing of a commercial or
industrial product excluding food, feed, motor vehicle fuel, heating
oil, and electricity.
Applicable minimum biobased content. The required Biobased Content
level set by USDA that a product must meet or exceed to qualify for the
Federal procurement preference and use of the USDA Certified Biobased
Product Label.
ASTM International (ASTM). A nonprofit organization, formerly known
as American Society for Testing and Materials, that provides an
international forum for the development and publication of voluntary
consensus standards for materials, products, systems, and services.
Biobased content. The amount of recent, biologically derived
organic carbon in the material or product expressed as a percent of
weight (mass) of the total organic carbon in the material or product.
Biobased content testing. The testing that is performed to verify a
product's Biobased Content. For products participating in the
BioPreferred Program, the Biobased Content is to be determined using
ASTM Method D6866, Standard Test Methods for Determining the Biobased
Content of Solid, Liquid, and Gaseous Samples Using Radiocarbon
Analysis.
Biobased product(s). (1) A product determined by USDA to be a
commercial or industrial product (other than food or feed) that is:
(i) Composed, in whole or in significant part, of Biological
Products, including renewable domestic Agricultural Materials,
Renewable Chemicals, and forestry materials; or
(ii) An Intermediate Ingredient or Feedstock.
(2) The term Biobased Product includes, with respect to forestry
materials, Forest Products that meet Biobased Content requirements,
notwithstanding the market share the product holds, the age of the
product, or whether the market for the product is new or emerging. For
the purposes of the BioPreferred Program, the term Biobased Product
does not include motor vehicle fuels, heating oils, or electricity.
Biodegradability. A quantitative measure of the extent to which a
material is capable of being decomposed by biological agents,
especially bacteria.
Biological products. Products derived from living materials.
Certification icon. The distinctive image, as shown in figure 1
(note that actual size will vary depending on application), that
depicts the symbols of the sun, the soil, and the aquatic environments
to be used with USDA's permission to identify Certified Biobased
Products. The icon will be used in materials including, but not limited
to, advertisements, catalogs, procurement databases, websites, and
promotional and educational materials. The colors used in the
Certification Icon can be found in the USDA BioPreferred Program Brand
and Marketing Guidelines available on the BioPreferred Program website
(biopreferred.gov).
Figure 1 to Definition of Certified Icon--Certification Icon
[GRAPHIC] [TIFF OMITTED] TR09DE24.687
Certified application. An application for a Biobased Product to
participate in the BioPreferred Program that has completed all steps of
the certification process, including an initial Prequalification review
and Biobased Content Testing as required, and has received a notice of
certification.
Certified biobased product. A Biobased Product that is eligible for
preferred Federal procurement because it meets the definition and
Applicable Minimum Biobased Content criteria for one or more Designated
Product Categories as specified in the Register of Designated
Categories, and for which the Participating Organization has received
approval from USDA to utilize the USDA Certified Biobased Product
Label.
Complex assembly. A system of distinct materials and components
assembled to create a finished product with specific functional intent
where some or all of the system components contain some amount of
biobased material or feedstock.
Days. As used in this part means calendar Days.
Defined product category. Any product category that has been
established for a specified grouping of Biobased Products with similar
characteristics and intended uses. A Defined Product Category includes
a description of the product characteristics that fall within the
category. The other product category is not a Defined Product Category.
Designated product category. A grouping of Biobased Products,
including finished products, Intermediate Ingredients or Feedstocks,
and Complex Assemblies, identified in the Register of Designated
Categories on the BioPreferred Program website (biopreferred.gov).
Certified or Qualified Biobased Products that meet the criteria for at
least one designated category are eligible for the procurement
preference established under section 9002 of FSRIA.
Designated representative. An entity authorized by a Participating
Organization to act on their behalf to obtain certification or to affix
the USDA Certified Biobased Product Label to the Participating
Organization's Certified Biobased Product or its packaging or perform
other marketing functions.
Federal agency. Any executive agency or independent establishment
in the legislative or judicial branch of the Government (except the
Senate, the House of Representatives, the Architect of the Capitol, and
any activities under the Architect's direction).
Forest product. A product made from materials derived from the
practice of forestry or the management of growing timber. The term
Forest Product includes:
(1) Pulp, paper, paperboard, pellets, lumber, and other wood
products; and
(2) Any recycled products derived from forest materials.
Formulated product. A product that is prepared or mixed with other
Ingredients, according to a specified formula and includes more than
one Ingredient.
FSRIA. The Farm Security and Rural Investment Act of 2002, Public
Law 107-171, 116 Stat. 134 (7 U.S.C. 8102).
Ingredient. A component, or a part of a compound or mixture, that
may be active or inactive.
Innovative criteria. Benchmark for demonstrating new and emerging
approaches in the growing, harvesting, sourcing, procuring, processing,
manufacturing, or application of the Biobased Product. Biobased
Products must meet one of the Innovative Criteria
[[Page 97467]]
as defined by USDA to be eligible for preferred Federal procurement and
to display the USDA Certified Biobased Product Label.
Intermediate ingredient or feedstock. A material or compound made
in whole or in significant part from Biological Products, including
renewable Agricultural Materials (including plant, animal, and marine
materials) or forestry materials that have undergone value added
processing (including thermal, chemical, biological, or a significant
amount of mechanical processing), excluding harvesting operations,
offered for sale by a Participating Organization and that is
subsequently used to make a more complex compound or product.
ISO. The International Organization for Standardization, a network
of national standards institutes working in partnership with
international organizations, governments, industries, business, and
consumer representatives.
ISO 9001 conformant. An entity that meets all the requirements of
the ISO 9001 standard, but that is not required to be ISO 9001
certified. ISO 9001 refers to the ISO's standards and guidelines
relating to quality management systems. Quality management is defined
as what the manufacturer does to ensure that its products or services
satisfy the customer's quality requirements and comply with any
regulations applicable to those products or services.
Other entity. Any person, group, public or private organization, or
business other than USDA or Participating Organizations that may wish
to use the USDA Certified Biobased Product Label or Certification Icon
in informational or promotional material related to a Certified
Biobased Product.
Parent product. The Certified Biobased Product in a test exempt
relationship that was originally tested for certification. A test
exempt product references the Certified Application of its Parent
Product.
Participating organization. An entity that has completed the steps
required to have a Certified and/or Qualified Biobased Product under
the BioPreferred Program. Participants can include entities that
perform the necessary chemical and mechanical processes to make a
Biobased Product, and entities that offer for sale Biobased Products
that they do not manufacture but that are marketed and sold under their
own brand.
Prequalification. The step during the certification process at
which an application is conditionally approved pending the product
undergoing Biobased Content Testing.
Procuring agency. Any Federal Agency that is using Federal funds
for procurement or any business contracting with any Federal Agency
with respect to work performed under the contract.
Qualified biobased product(s). A product that is eligible for
preferred Federal procurement because it meets the definition and
Applicable Minimum Biobased Content criteria for one or more Designated
Product Categories as specified in the Register of Designated
Categories.
Register of Designated Categories. The list of product categories
that are eligible for the procurement preference established under
section 9002 of FSRIA, including the category name, description,
required minimum Biobased Content, and date of finalization. The
Register of Designated Categories can be found on the BioPreferred
Program website at biopreferred.gov.
Renewable chemical. A monomer, polymer, plastic, Formulated
Product, or chemical substance produced from renewable biomass.
Secretary. The Secretary of the United States Department of
Agriculture.
Stakeholder. Individuals or officers of State or local government
organizations, private non-profit institutions, or organizations, and
private businesses or consumers.
USDA. The United States Department of Agriculture.
USDA Certified Biobased Product label. A combination of the
Certification Icon (as defined in this part); one of three statements
identifying whether the USDA certification applies to the product, the
package, or both the product and package; and the letters ``FP'' to
indicate that the product is within a Designated Product Category and
eligible for preferred Federal procurement. The distinctive image, as
shown in figures 2, 3, and 4 (note that actual size will vary depending
on application), identifies products as USDA Certified Biobased
Products. The colors used in the USDA Certified Biobased Product Label
can be found in the USDA BioPreferred Program Brand and Marketing
Guidelines available on the BioPreferred Program website
(biopreferred.gov). The USDA Certified Biobased Product Label is owned
and its use is managed by USDA (standard trademark law definition
applies).
Figure 2 to Definition of USDA Certified Biobased Product Label--USDA
Certified Biobased Product Label
[GRAPHIC] [TIFF OMITTED] TR09DE24.688
Figure 3 to Definition of USDA Certified Biobased Product Label--USDA
Certified Biobased Package Label
[GRAPHIC] [TIFF OMITTED] TR09DE24.689
Figure 4 to Definition of USDA Certified Biobased Product Label--USDA
Certified Biobased Product & Package Label
[GRAPHIC] [TIFF OMITTED] TR09DE24.690
Sec. 4270.3 Applicability.
(a) Applicability to Federal procurements--(1) Applicability to
procurement actions. The guidelines in this part apply to all
procurement actions by Procuring Agencies involving product categories
designated by USDA in this part, where the Procuring Agency makes
purchases of $10,000 or more of one of these products during a fiscal
year, or where the quantity of such products or of functionally
equivalent products purchased during the preceding fiscal year was
$10,000 or more. The $10,000 threshold applies to Federal Agencies as a
whole rather than to agency subgroups such as regional offices or
subagencies of a larger Federal department or agency.
(2) Exception for procurements subject to Environmental Protection
Agency (EPA) regulations under the Solid Waste Disposal Act. For any
procurement by any Procuring Agency that is subject to regulations of
the Administrator of the EPA under section 6002 of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act
of 1976 (40 CFR part
[[Page 97468]]
247), these guidelines do not apply to the extent that the requirements
of this part are inconsistent with such regulations.
(3) Procuring products composed of the highest percentage of
Biobased Content. Section 9002(a)(2) of FSRIA (7 U.S.C. 8102(a)(2))
requires Procuring Agencies to procure Qualified Biobased Products
composed of the highest percentage of Biobased Content practicable.
Procuring agencies may decide not to procure such Qualified Biobased
Products if they are not reasonably priced or readily available or do
not meet specified or reasonable performance standards.
(4) Incidental purchases. This part does not apply to purchases of
Qualified Biobased Products that are unrelated to or incidental to
Federal funding (i.e., purchases that are not the direct result of a
contract or agreement with persons supplying products to a Procuring
Agency or providing support services that include the supply or use of
products).
(5) Exemptions. The following applications are exempt from the
preferred procurement requirements of this part:
(i) Military equipment: Products or systems designed or procured
for combat or combat-related missions.
(ii) Spacecraft systems and launch support equipment.
(b) Applicability to Participating Organizations and Other
Entities--(1) Participating Organizations. The requirements in this
part apply to all prospective Participating Organizations who wish to
participate in the BioPreferred Program. Those wishing to participate
in the BioPreferred Program are required to obtain and maintain product
certification. USDA will allow only one owner or Designated
Representative of a branded product to participate. Participating
Organizations may not obtain product certification for a product using
a brand name owned by a separate organization unless they are acting on
behalf of the brand owner, with their approval, as a Designated
Representative.
(2) Other Entities. The requirements in this part apply to Other
Entities who wish to use the USDA Certified Biobased Product Label or
Certification Icon in promoting the sales or the public awareness of
Certified Biobased Products.
Sec. 4270.4 Criteria for eligibility.
A product must meet each of the criteria specified in paragraphs
(a) through (c) of this section to be eligible to participate in the
BioPreferred Program.
(a) Biobased Product. The product for which certification is sought
must be a Biobased Product as defined in Sec. 4270.2. Products must
undergo Biobased Content Testing as described in Sec. 4270.7 of this
part to confirm the products meet or exceed the applicable minimums.
(1) Products that are qualified for preferred Federal procurement
but not certified as of the date of publication of this rule. If the
product is qualified for preferred Federal procurement through the
BioPreferred Program as of January 8, 2025, the product will remain
eligible under the legacy rules, which can be found on the BioPreferred
Program website (biopreferred.gov), until the product is reformulated,
discontinued, or until December 9, 2027, whichever comes first. These
products must follow the procedures described in Sec. 4270.9 before
December 9, 2027 to remain eligible.
(2) Exclusions. Motor vehicle fuels, heating oil, and electricity
are excluded by statute from this Program. For the purposes of this
Program, food, animal feed, and products intended to be ingested or
inhaled such as pharmaceuticals or nutraceuticals are also excluded.
(b) Minimum Biobased Content. The Biobased Content of the product
must be equal to or greater than the Applicable Minimum Biobased
Content, as described in paragraphs (b)(1) and (2) of this section.
(1) Products that fall under one or more Defined Product
Categories--(i) Product is within a single product category. If the
Biobased Product is within a single Defined Product Category that, at
the time the application for certification is submitted, has been
designated by USDA for preferred Federal procurement, the Applicable
Minimum Biobased Content requirement for the product is the minimum
Biobased Content specified for the Defined Product Category as found in
the Register of Designated Categories on the BioPreferred Program
website at biopreferred.gov.
(ii) Product is within multiple product categories. If the Biobased
Product is marketed within more than one Defined Product Category
identified for preferred Federal procurement at the time the
application for certification is submitted and uses the same packaging
for each use, the product's Biobased Content must meet or exceed the
specified minimum Biobased Content for each of the applicable product
categories, as found in the Register of Designated Categories on the
BioPreferred Program website at biopreferred.gov, to become certified
in each category. If the product's Biobased Content does not meet the
specified minimum Biobased Content for the category that most closely
matches the product's primary intended use, the product is not eligible
to participate.
(2) Products that do not meet the definition of at least one
Defined Product Category. If the Biobased Product does not meet the
definition of a Defined Product Category that has been designated by
USDA at the time the application for certification is submitted, the
Applicable Minimum Biobased Content is 30 percent. USDA will evaluate
such products as described in Sec. 4270.6 to determine the viability
of designating a new product category. If a new category is
subsequently designated for preferred Federal procurement, the
Applicable Minimum Biobased Content will become, as of the effective
date indicated in the Register of Designated Categories, the minimum
Biobased Content specified for the newly Defined Product Category.
(c) Innovative Criteria. In determining eligibility for
certification under the BioPreferred Program, USDA will consider as
eligible only those products that use innovative approaches in the
growing, harvesting, sourcing, procuring, processing, manufacturing, or
application of the Biobased Product. USDA will consider products that
meet one or more of the criteria in paragraphs (c)(1) through (4) of
this section to be eligible for certification. USDA will also consider
other documentation of innovative approaches in the growing,
harvesting, sourcing, procuring, processing, manufacturing, or
application of Biobased Products on a case-by-case basis. USDA may deny
or revoke certification for any products whose manufacturers are unable
to provide USDA with the documentation necessary to verify claims that
innovative approaches are used.
(1) Product applications. (i) The Biobased Product or material is
used or applied in applications that differ from historical
applications; or
(ii) The Biobased Product or material is grown, harvested,
manufactured, processed, sourced, or applied in other innovative ways;
or
(iii) The Biobased Content of the product or material makes its
composition different from products or material used for the same
historical uses or applications.
(2) Manufacturing and processing. (i) The Biobased Product or
material is manufactured or processed using renewable, biomass energy
or using technology that is demonstrated to increase energy efficiency
or reduce
[[Page 97469]]
reliance on fossil-fuel based energy sources; or
(ii) The Biobased Product or material is manufactured or processed
with technologies that reduce waste and ensure high feedstock material
recovery and use.
(3) Environmental Product Declaration. The product has a current
Environmental Product Declaration as defined by International Standard
ISO 14025, Environmental Labels and Declarations--Type III
Environmental Declarations--Principles and Procedures.
(4) Raw material sourcing. (i) The raw material used in the product
is sourced from a Legal Source, a Responsible Source, or a Certified
Source as designated by ASTM D7612 (Standard Practice for Categorizing
Wood and Wood-Based Products According to Their Fiber Sources); or
(ii) The raw material used in the product is 100% resourced or
recycled (such as material obtained from building deconstruction or
agricultural wastes); or
(iii) The raw material used in the product is acquired as a result
of activities related to a natural disaster, debris clearing, right-of-
way maintenance, tree health improvement, or public safety; or
(iv) The raw material used in the product is grown, harvested,
manufactured, processed, sourced, or applied in other sustainable and
ethically sourced ways as determined by USDA. Examples include but are
not limited to rainforest and habitat conservation, wildlife
protection, ethical workplace practices, and adherence to environmental
management systems, such as ISO 14001.
Sec. 4270.5 Procurement programs.
(a) Integration into the Federal procurement framework. The Office
of Federal Procurement Policy, in cooperation with USDA, has the
responsibility to coordinate this policy's implementation in the
Federal procurement regulations. These guidelines are not intended to
address full implementation of these requirements into the Federal
procurement framework. This will be accomplished through revisions to
the Federal Acquisition Regulation.
(b) Federal Agency preferred procurement programs. (1) Each Federal
Agency will maintain and implement a procurement program that will
assure that Qualified Biobased Products are purchased to the maximum
extent practicable and that is consistent with applicable provisions of
Federal procurement laws. Each procurement program will contain:
(i) A preference program for purchasing Qualified Biobased
Products;
(ii) A training program to educate the Federal Agency and its
contractors on the requirements for purchasing Qualified Biobased
Products;
(iii) Provisions for the annual review and monitoring of the
effectiveness of the procurement program;
(iv) Provisions for reporting quantities and types of Biobased
Products purchased by the Federal Agency and its contractors through
the BioPreferred Program Portal in the System for Award Management
(https://sam.gov) as required by 48 CFR 52.223-2; and
(v) Provisions for reviewing and eliminating specifications that
prohibit the purchasing of Qualified Biobased Products.
(2) In developing their preference program, Federal agencies will
adopt one of the following options, or a substantially equivalent
alternative, as part of the procurement program:
(i) A policy of awarding contracts on a case-by-case basis to the
vendor offering a Qualified Biobased Product composed of the highest
percentage of Biobased Content practicable except when such products:
(A) Are not available within a reasonable timeframe;
(B) Fail to meet performance standards for their intended use, or
the reasonable performance standards of the Federal Agency; or
(C) Are not available at a reasonable price.
(ii) A policy of setting minimum Biobased Content specifications in
such a way as to assure that the required Biobased Content of Qualified
Biobased Products is consistent with section 9002 of FSRIA and the
requirements of the guidelines in this part.
(iii) A policy of documenting and reporting cases where it is not
possible to award contracts and set specifications in such a way that
is consistent with section 9002 of FSRIA and the requirements of this
part.
(3) In implementing the preference program, Federal agencies will
treat as eligible for the preference Biobased Products from designated
countries, as that term is defined in 48 CFR 25.003 (Federal
Acquisition Regulation), provided that those products otherwise meet
all requirements for participation in the preference program.
(4) Each Federal Agency will continue to establish an annual
targeted biobased-only procurement requirement under which the
Procuring Agency will issue a certain number of biobased-only contracts
when the Procuring Agency is purchasing products, or purchasing
services that include the use of products, that are included in a
Biobased Product category designated by the Secretary.
(c) Procurement specifications. Federal agencies that have the
responsibility for drafting or reviewing specifications for products
procured by Federal agencies will ensure that their specifications
require the use of Qualified Biobased Products, consistent with the
guidelines in this part. These specifications must be put in place no
later than six months after a designated category of products is
finalized and added to the Register of Designated Categories. USDA will
identify the allowable time frame for specifications to be put in place
in the Register of Designated Categories found on the BioPreferred
Program website at biopreferred.gov. The Biobased Content of Qualified
Biobased Products within a Designated Product Category may vary
considerably from product to product based on the mix of Ingredients
used in its manufacture. In procuring Qualified Biobased Products, the
percentage of Biobased Content should be maximized, consistent with
achieving the desired performance for the product.
Sec. 4270.6 Category designation.
(a) Procedure. Designated Product Categories are found in the
Register of Designated Categories on the BioPreferred Program website
(biopreferred.gov).
(1) General. In designating product categories, USDA will designate
categories composed of generic groupings of specific products,
Intermediate Ingredients or Feedstocks, or Complex Assemblies and will
identify the minimum Biobased Content for each listed category or
subcategory. As product categories are designated for procurement
preference, they will be added to the Register of Designated Categories
on the BioPreferred Program website at biopreferred.gov.
(i) Adding new product categories to the Register of Designated
Categories. If a product does not fall within a Defined Product
Category that has been designated by USDA at the time the application
for certification is submitted, the Applicable Minimum Biobased Content
is 30 percent, and it will be listed in the other product category.
USDA will evaluate the viability of designating new product categories
to categorize products in the other product category more
appropriately, following the procedure described in paragraphs
(a)(1)(i)(A) through (D) of this section.
[[Page 97470]]
(A) New Defined Product Categories that are identified during the
category evaluation process will be added to the Register of Designated
Categories on the BioPreferred Program website (biopreferred.gov).
Using the data gathered during the certification process, USDA will
establish a provisional category name, definition, and minimum Biobased
Content for each new product category based on the product(s) that fall
within the new category.
(B) The provisional minimum will be in place for a period of six
months following the addition of the new Defined Product Category to
the Register of Designated Categories. During that time, any product
that falls within the category based on the category definition and has
a Biobased Content that is either at least 30 percent or within 30
percentage points of the provisional minimum, whichever is higher, will
be considered for inclusion.
(C) After a period of six months following the addition of the new
product category to the Register of Designated Categories, USDA will
re-evaluate the provisional category name, description, and minimum
Biobased Content based on the data gathered during the year. At that
time, USDA will make final the product category name, description, and
minimum Biobased Content, and the category will no longer be considered
provisional.
(D) Procuring agencies, in accordance with this part, are
encouraged to give a procurement preference for Qualified Biobased
Products that falls within provisionally designated categories and are
required to give a procurement preference for Qualified Biobased
Products that falls within designated categories no later than six
months after the finalized product category is added to the Register of
Designated Categories. By that date, Federal agencies responsible for
products to be procured will ensure that the relevant specifications
require the use of Biobased Products that fall within the designated
categories.
(ii) Revising Defined Product Categories on the Register of
Designated Categories. USDA will periodically evaluate the need to
update the product categories included in the Register of Designated
Categories by reviewing items including, but not limited to, the
category names, definitions, minimum Biobased Contents, subcategories,
and the need for the category or subcategory. If the data support
making updates, USDA will amend the category and publish the updated
category to the Register of Designated Categories. No later than six
months after the amended category is published to the Register of
Designated Categories, procuring agencies, in accordance with this
part, will give a procurement preference for Qualified Biobased
Products that fall within the amended designated category. By that
date, Federal agencies responsible for products to be procured will
ensure that the relevant specifications require the use of Biobased
Products that fall within the designated categories.
(2) Public comments. Interested parties, including manufacturers,
vendors, groups of manufacturers and/or vendors, and trade associations
may propose an alternative Applicable Minimum Biobased Content for a
new, provisional, defined, or Designated Product Category by, in
consultation with USDA, developing and conducting an analysis to
support the proposed alternative Applicable Minimum Biobased Content.
If approved by USDA, the proposed alternative Applicable Minimum
Biobased Content would become the Applicable Minimum Biobased Content
for products that fall within that category to be certified.
(3) Continued eligibility. If the applicable required minimum
Biobased Content for a product to be eligible to participate in the
BioPreferred Program is revised by USDA, the product will remain
certified or qualified, as applicable, only if it meets the new minimum
Biobased Content level. In those cases where the Biobased Content of a
certified or qualified product fails to meet the new minimum Biobased
Content level, USDA will notify the Participating Organization that
their certification is no longer valid. Such Participating
Organizations must notify USDA of their intent to increase the Biobased
Content of their product to a level at or above the new minimum
Biobased Content level within 120 Days and must re-apply for
certification within an additional 120 Days if they wish to continue to
participate in the Program. The affected product's certification will
expire if the Participating Organization does not notify USDA of the
intent to reformulate within 120 Days or if the Participating
Organization does not re-apply within the additional 120 Days.
Participating Organizations who have re-applied for certification may
continue using the existing USDA Certified Biobased Product Label until
they receive notification from USDA on the results of their re-
application for certification.
(b) Considerations. (1) In designating product categories, USDA
will consider the availability of Qualified Biobased Products and the
economic and technological feasibility of using such products,
including price. USDA will gather information on individual Qualified
Biobased Products within a category and extrapolate that information to
the category level for consideration in designating product categories.
(2) In designating product categories for the BioPreferred Program,
USDA will consider as eligible only those products that use innovative
approaches in growing, harvesting, sourcing, procuring, processing,
manufacturing, or application of the Biobased Product. USDA will
consider products that meet one or more of the criteria in Sec.
4270.4(b)(1) and (2) to be eligible for the BioPreferred Program. USDA
will also consider other documentation of innovative approaches in
growing, harvesting, sourcing, procuring, processing, manufacturing, or
application of Biobased Products on a case-by-case basis.
Sec. 4270.7 Determining Biobased Content.
(a) Certification requirements. For any Biobased Product seeking to
participate in the BioPreferred Program, prospective Participating
Organizations must submit an application as specified in Sec. 4270.9
and confirm that the product meets the Applicable Minimum Biobased
Content requirements and the definition for the Defined Product
Category within which the Biobased Product falls. Paragraph (c) of this
section addresses how to determine Biobased Content. Upon request,
manufacturers and vendors must provide USDA and Federal agencies
information to verify Biobased Content claims for Qualified Biobased
Products.
(b) Minimum Biobased Content. Unless specified otherwise in the
designation of a particular product category, the minimum Biobased
Content requirements in a specific category designation refer to the
organic carbon portion of the product, and not the entire product.
(c) Determining Biobased Content. Verification of Biobased Content
must be based on third party ASTM/ISO compliant test facility testing
using the ASTM Standard Method D6866 (Standard Test Methods for
Determining the Biobased Content of Solid, Liquid, and Gaseous Samples
Using Radiocarbon Analysis). ASTM Standard Method D6866 determines
Biobased Content based on the amount of biobased carbon in the product
as a percent of the weight (mass) of the total organic carbon in the
product.
(1) General. Biobased Content will be based on the amount of
biobased carbon in the product as a percent of the weight
[[Page 97471]]
(mass) of the total organic carbon in the product.
(2) Complex Assemblies--(i) Equation. The Biobased Content of a
Complex Assembly product, where the product has n components whose
Biobased Content and organic carbon content can be experimentally
determined, may be calculated using the following equation:
[GRAPHIC] [TIFF OMITTED] TR09DE24.691
Where:
Mi = mass of the ith component
BCCi = biobased carbon content of the ith component (%)
OCCi = organic carbon content of the ith component (%)
(ii) Proportional sampling. The Biobased Content of an Assembly
product may be determined by sub-sampling (by weight) each organic
constituent in a proportion representative of its content within the
assembly and combining the sub-samples into a measurable quantity so
that a single ASTM D6866 analysis of the combined sub-samples is
representative of the assembly.
(d) Products and Intermediate Ingredients or Feedstocks with the
same formulation. In the case of products and Intermediate Ingredients
or Feedstocks that are essentially the same formulation but marketed
under more than one brand name, Biobased Content test data may be
shared as specified in paragraphs (d)(1) and (2) of this section.
(1) Test exemptions. In situations where a new product for which
certification is sought is composed of the same Ingredients and has the
same Biobased Content as a product that has already been certified and
tested by a company that the interested party has a direct relationship
with, the interested party may apply for a test exemption by
referencing the Certified Application of the certified Parent Product
in lieu of having the new product undergo Biobased Content Testing
using ASTM D6866.
(2) Families. In situations where a Participating Organization is
seeking certification for two or more products that are composed of the
same Ingredients and have the same Biobased Content but are marketed
for different uses or under more than one brand name, the products may
be grouped in a family. Biobased Content test data must only be
obtained for one of the products in the family, and the test data will
apply to all products within the family.
Sec. 4270.8 [Reserved]
Sec. 4270.9 Initial approval process.
(a) Application. Prospective Participating Organizations seeking
USDA approval to use the USDA Certified Biobased Product Label and to
become qualified for preferred Federal procurement for an eligible
Biobased Product must submit an application for each Biobased Product
or product family. USDA has developed a standardized application form
that must be used. The standardized application form and instructions
are available on the BioPreferred Program website (biopreferred.gov).
The contents of an acceptable application are as specified in
paragraphs (a)(1) and (2) of this section.
(1) General content. The applicant must provide the information as
specified in paragraphs (a)(1)(i) though (viii) of this section.
(i) Contact information, including the name, mailing address, email
address, and telephone number of the applicant.
(ii) The product's brand name(s) or other identifying information.
(iii) Intended uses of the product.
(iv) The biobased source(s) of the raw materials used in the
product.
(v) Information to document that one or more of the Innovative
Criteria specified in Sec. 4270.4(c) has been met.
(vi) The corresponding Designated Product Category classification
for preferred Federal procurement.
(vii) The estimated Biobased Content of the product.
(viii) A web link directly to the applicant's website (if
available).
(2) Commitments. The applicant must verify in the application that
the product for which use of the USDA Certified Biobased Product Label
is sought is a Biobased Product as defined in Sec. 4270.2. The
applicant must also agree to statements in the application that commit
the applicant to submitting to USDA the information specified in
paragraphs (a)(1)(i) through (viii) of this section, some of which USDA
will post to the BioPreferred Program website (biopreferred.gov), and
to providing USDA with up-to-date information on this website.
(b) Evaluation of applications--(1) Initial evaluation. USDA will
evaluate each application to determine if it contains the information
specified in paragraph (a) of this section and to determine compliance
with the criteria specified in Sec. 4270.4. If USDA determines that
the application is incomplete, USDA will contact the applicant via
email with an explanation of the application's deficiencies. Once the
deficiencies have been addressed, the applicant may respond to USDA
with an explanation of how the application's deficiencies were
addressed for re-evaluation by USDA, and USDA will update the
application as needed. If the applicant does not provide a response
within 90 Days, USDA will make the application inactive.
(2) Prequalification. (i) USDA will provide a written response to
each applicant as quickly as practicable, but no later than 90 Days
after the receipt of a complete application, depending on the
responsiveness of the applicant. The written response will inform the
applicant of whether the application has been conditionally approved,
or prequalified, to move forward to Biobased Content Testing, or has
been disapproved. After notification that the application has been
conditionally approved, if any of the information specified in
paragraphs (a)(1)(i) through (viii) of this section has changed, the
applicant must provide updates to USDA (for posting by USDA on the
BioPreferred Program website).
(ii) For those applications that are conditionally approved to move
forward, Biobased Content Testing must be completed as described in
Sec. 4270.7. Test results obtained prior to the application being
conditionally accepted or obtained in a manner that does not comply
with this part cannot be accepted.
(iii) After Biobased Content Testing has been completed, USDA will
evaluate the results and determine if the product meets the criteria
described in Sec. 4270.4(b). For those applications that meet the
criteria described in Sec. 4270.4(b), USDA will issue a notice of
certification, as specified in paragraph (c) of this section. A notice
of certification must be issued before the use of the USDA Certified
Biobased Product Label can begin.
(iv) For those applications that are disapproved, USDA will inform
the applicant in writing of each criterion not met.
[[Page 97472]]
(c) Notice of certification. Once USDA confirms that the test
results document an acceptable Biobased Content, USDA will issue a
notice of certification to the applicant that includes the date of
certification, name of the product(s) covered by the certification, and
certified Biobased Content of the product(s). Upon receipt of a notice
of certification, the applicant may begin using the USDA Certified
Biobased Product Label on the Certified Biobased Product and may
advertise that the product is a Certified Biobased Product. Paragraph
(c)(1) of this section presents the procedures for revising the
information provided under paragraphs (a)(1)(i) through (viii) of this
section after a notice of certification has been issued.
(1) If at any time, during the application process or after a
product has been certified, any of the information specified in
paragraphs (a)(1)(i) through (viii) of this section changes, the
applicant must notify USDA of the change within 30 Days. Such
notification must be provided in writing via email to USDA. Failure to
notify USDA of any change made to a Certified Biobased Product may
result in the violation actions described in Sec. 4270.12.
(2) After receiving the notice of certification, the Participating
Organization may request to display a Biobased Content percentage that
is lower than the content measured by the ASTM D6866 test results but
is greater than or equal to the applicable category minimums. Such
requests must be sent in writing via email to USDA and must be approved
by USDA.
(3) If, after reviewing the test results, USDA determines that the
product does not meet the Applicable Minimum Biobased Content, USDA
will issue a notice of denial of certification and will inform the
applicant in writing via email of each criterion not met.
(d) Term of certification--(1) General. The effective date of
certification is included in the notice of certification from USDA.
Except as specified in paragraphs (d)(1)(iii) and (iv) and (d)(2)
through (4) of this section, certifications will remain in effect for
five years. The applicant will be notified 90 Days before the
certification expires, at which time, the product must be re-tested in
accordance with the procedure as specified in Sec. 4270.7.
(i) If the certification is not renewed within the 90 Days, the
product certification will expire, the product will no longer be a
Certified Biobased Product, and the product information will be removed
from the BioPreferred Program website (biopreferred.gov).
(ii) If a Participating Organization whose product certification
has expired wishes to renew the certification, the participant must
follow the procedures required for original certification.
(iii) All certifications are subject to periodic USDA auditing
activities, as described in Sec. 4270.15. If a Participating
Organization fails to participate in such audit activities or if such
audit activities reveal Biobased Content violations, as specified in
Sec. 4270.12, the certification will be subject to suspension and
revocation according to the procedures specified in Sec.
4270.12(c)(3).
(iv) If USDA discovers that a certification has been issued for an
ineligible product as a result of errors on the part of USDA during the
approval process, USDA will notify the Participating Organization in
writing that the certification is revoked effective 30 Days from the
date of the notice.
(2) Reformulations. If at any time during the term of certification
a Certified Biobased Product is reformulated, the participant must
notify USDA of the change. USDA will consider the changes and inform
the participant if re-testing is required as specified in paragraphs
(d)(2)(i) through (iii) of this section.
(i) If the product formulation or raw materials of a Certified
Biobased Product are changed such that the Biobased Content of the
product is reduced to a level below that reported in the Certified
Application, the existing certification will no longer be valid for the
product under these revised conditions and the Participating
Organization and its Designated Representatives must discontinue
affixing the USDA Certified Biobased Product Label to the product and
must not initiate any further advertising of the product using the USDA
Certified Biobased Product Label. USDA will consider a product under
such revised conditions to be a reformulated product, and the
Participating Organization must submit a new application for
certification using the procedures specified in paragraph (a) of this
section.
(ii) If the product formulation of a Certified Biobased Product is
changed such that the Biobased Content of the product is increased from
the level reported in the Certified Application, and the raw materials
are not significantly changed, the existing certification will continue
to be valid for the product.
(iii) If the applicable required minimum Biobased Content for a
product to participate in the BioPreferred Program is revised by USDA,
Participating Organizations must follow the requirements specified in
Sec. 4270.6(a)(3).
(3) Test exemptions. For those products that are exempt from
Biobased Content Testing as described in Sec. 4270.7, the test exempt
certification will expire at the same time as the Certified Application
of the Parent Product.
(4) Special considerations. (i) For those Participating
Organizations who have Qualified Biobased Products that are not
certified as of January 8, 2025. USDA will solicit Biobased Content
test data obtained using the ASTM D6866 test method. Participants who
provide USDA with ASTM D6866 test data that has been obtained within
the past five years from January 8, 2025 and whose products meet the
requirements as described in Sec. 4270.4 will receive certification
for their products covered by the test data. The term of certification
as described in paragraph (d)(1) of this section will then apply.
(ii) Participants who have Qualified Biobased Products that are not
certified as of January 8, 2025 and do not provide recent ASTM D6866
test results within three years of the publication of this rule will be
required to have their products tested and certified as described in
Sec. 4270.7. If certification is not completed within three years of
the publication of this rule, these Biobased Products will no longer be
listed as Qualified Biobased Products on the BioPreferred Program's
website (biopreferred.gov) and will be removed from the BioPreferred
Program's website (biopreferred.gov).
(iii) For those participants who have Certified Biobased Products
that have been certified for more than five years as of the date of
publication of this rule, USDA will require that the certification be
renewed as described in paragraph (d)(1) of this section within three
years of January 8, 2025. If an application for renewal is not
completed within three years, the product certification will expire,
the product will no longer be a Certified Biobased Product, and the
product information will be removed from the BioPreferred Program
website (biopreferred.gov).
Sec. 4270.10 [Reserved]
Sec. 4270.11 Requirements associated with promotional certification
materials.
(a) How participation in the BioPreferred Program can be promoted.
Guidance on promoting participation in the BioPreferred Program is
provided in paragraphs (a)(1) and (2) of this section. USDA will
evaluate additional requests for uses of promotional materials or
references to the Program and will offer
[[Page 97473]]
guidance on the BioPreferred Program website (biopreferred.gov).
(1) Participating Organizations. Only Participating Organizations
that have received a notice of certification, or Designated
Representatives of the Participating Organization, may utilize
certification materials provided by the BioPreferred Program. A
Participating Organization that has received a notice of certification
for a product under this part:
(i) May use the USDA Certified Biobased Product Label (in one of
the approved variations, as applicable) on the product, its packaging,
and other related materials including, but not limited to,
advertisements, catalogs, specification sheets, procurement sheets,
procurement databases, promotional material, websites, or user manuals
for that product, according to the requirements set forth in this
section.
(ii) Is responsible for the manner in which the USDA Certified
Biobased Product Label is used by its companies, as well as its
Designated Representatives, including advertising agencies, marketing
and public relations firms, and subcontractors.
(2) Other Entities. Other Entities who have entered into a
partnership agreement with USDA may use the BioPreferred Program's
promotional certification materials to advertise or promote Certified
Biobased Products in materials including, but not limited to,
advertisements, catalogs, procurement databases, websites, and
promotional and educational materials. Other Entities may use:
(i) The Certification Icon;
(ii) The phrase ``USDA Certified Biobased Product/Package/Product &
Package,'' as applicable; and
(iii) The BioPreferred Program name in general statements as
described in paragraph (b) of this section, as long as the statements
do not imply that a non-certified product is certified or endorsed by
USDA.
(b) Correct usage of the USDA Certified Biobased Product Label and
other promotional certification materials. (1) The USDA Certified
Biobased Product Label can be affixed only to Certified Biobased
Products and their associated packaging.
(2) The USDA Certified Biobased Product Label may be used in
material including, but not limited to, advertisements, catalogs,
procurement databases, websites, and promotional and educational
materials to distinguish certified products from those that are not
certified. The USDA Certified Biobased Product Label may be used in
advertisements for both Certified Biobased Products and non-certified/
labeled products if the advertisement clearly indicates which products
are certified/labeled. Care must be taken to avoid implying that any
non-certified products are certified.
(3) When educating the public about the USDA Certified Biobased
Product Label, the watermarked sample version of the USDA Certified
Biobased Product Label may be used without reference to a specific
Biobased Product. For example, the following or similar claims are
acceptable: ``Look for the `USDA Certified Biobased Product Label. It
means that the product meets USDA standards for the minimum amount of
Biobased Content and the manufacturer or vendor has provided relevant
information on the product to be posted on the BioPreferred Program
website (biopreferred.gov).'' This exception allows Participating
Organizations or Other Entities to use a sample USDA Certified Biobased
Product Label in documents such as corporate reports, but only in an
informative manner, not as a statement of product certification.
(4) The USDA Certified Biobased Product Label may appear next to a
picture of the Certified Biobased Product(s) or text describing it.
(5) The USDA Certified Biobased Product Label must stand alone and
not be incorporated into any other certification mark or logo designs.
(6) The USDA Certified Biobased Product Label may be embossed,
stamped, or used as a watermark provided the use does not violate any
BioPreferred Program brand standards or usage restrictions specified in
this part.
(7) The text portion of the USDA Certified Biobased Product Label
must be written in English and may not be translated, even when the
certification mark is used outside of the United States.
(c) Incorrect usage of the USDA Certified Biobased Product Label
and other promotional certification materials. (1) The USDA Certified
Biobased Product Label will not be used on any product that has not
been certified by USDA as a ``USDA Certified Biobased Product.''
(2) The USDA Certified Biobased Product Label will not be used in a
way that does not maintain the integrity of the label and the
BioPreferred Program.
(3) The word ``BioPreferred'' will not be used as a descriptor for
anything other than the Program, including but not limited to products,
categories, and companies. The BioPreferred Program name, the word
``BioPreferred,'' and the phrase ``USDA Certified Biobased Product''
are not interchangeable. For example, certified products may not be
referenced as being ``BioPreferred products.''
(4) The USDA Certified Biobased Product Label will not be used on
any advertisements or informal materials where both Certified Biobased
Products and non-certified products are shown unless it is clear that
the USDA Certified Biobased Product Label applies to only the Certified
Biobased Product(s).
(5) The BioPreferred Program name and the USDA Certified Biobased
Product Label will not be used to imply endorsement by USDA or the
BioPreferred Program of any particular product, service, or company.
(6) The BioPreferred Program name and the USDA Certified Biobased
Product Label will not be used in any form that could be misleading to
the consumer.
(7) The BioPreferred Program name and the USDA Certified Biobased
Product Label will not be used by manufacturers or vendors of Certified
Biobased Products in a manner disparaging to USDA or any other
government body.
(8) The BioPreferred Program name, the word ``BioPreferred,'' the
USDA Certified Biobased Product Label, and the Certification Icon will
not be altered or incorporated into other label or logo designs.
(9) The USDA Certified Biobased Product Label will not be used on
business cards, company letterhead, company stationary, or email
signatures.
(10) The BioPreferred Program name, the word ``BioPreferred,'' the
USDA Certified Biobased Product Label, and the Certification Icon will
not be used in, or as part of, any company name, logo, product name,
service, or website, except as may be provided for in this part.
(11) The BioPreferred Program name, the word ``BioPreferred,'' the
USDA Certified Biobased Product Label, and the Certification Icon will
not be used in a manner that violates any of the applicable
requirements contained in this part.
(d) Imported products. The USDA Certified Biobased Product Label
can be used only with a product that is certified by USDA under this
part. The USDA Certified Biobased Product Label cannot be used to imply
that a product meets or exceeds the requirements of biobased programs
in other countries. Products imported for sale in the U.S. must adhere
to the same guidelines as U.S. sourced Biobased Products. Any product
sold in the U.S. as a ``USDA Certified Biobased Product/Package/Product
& Package'' must have received certification from USDA.
[[Page 97474]]
(e) Elements of the USDA Certified Biobased Product Label. The USDA
Certified Biobased Product Label will consist of the Certification
Icon, the Biobased Content percentage, the letters ``FP'' to indicate
that the product is qualified for preferred Federal procurement, and
one of the three variations of text specified in paragraphs (e)(1)
through (3) of this section, as applicable.
(1) USDA Certified Biobased Product: Product.
(2) USDA Certified Biobased Product: Package.
(3) USDA Certified Biobased Product: Product & Package.
(f) Physical aspects of the USDA Certified Biobased Product Label.
The USDA Certified Biobased Product Label elements may not be altered,
cut, separated into components, or distorted in appearance or
perspective. The USDA Certified Biobased Product Label must appear only
in the colors specified in paragraphs (f)(1) and (2) of this section
unless approval is given by USDA for an exception.
(1) A multi-color version of the USDA Certified Biobased Product
Label is preferred. The USDA Certified Biobased Product Label colors to
be applied will be stipulated in the ``USDA BioPreferred Program Brand
and Marketing Guidelines'' document available on the BioPreferred
Program website (biopreferred.gov).
(2) Black or white outline versions of the USDA Certified Biobased
Product Label are acceptable.
(g) Placement of the USDA Certified Biobased Product Label. (1) The
USDA Certified Biobased Product Label can appear directly on a product,
its associated packaging, in user manuals, and in other materials
including, but not limited to, advertisements, catalogs, procurement
databases, and promotional and educational materials.
(2) The USDA Certified Biobased Product Label will not be placed in
a manner that is ambiguous about which product is a Certified Biobased
Product or that could indicate certification of a non-certified
product.
(3) When used to distinguish a Certified Biobased Product in
material including, but not limited to, advertisements, catalogs,
procurement databases, websites, and promotional and educational
materials, the USDA Certified Biobased Product Label must appear near a
picture of the product or text describing it.
(i) If all products on a page are Certified Biobased Products with
the same Biobased Content percentage, the USDA Certified Biobased
Product Label may be placed anywhere on that page.
(ii) If a page contains a mix of Certified Biobased Products and
non-certified Biobased Products, the USDA Certified Biobased Product
Label will be placed in close proximity to the Certified Biobased
Products. An individual USDA Certified Biobased Product Label near each
Certified Biobased Product may be necessary to avoid confusion.
(h) Minimum size and clear space requirements for the USDA
Certified Biobased Product Label. (1) The USDA Certified Biobased
Product Label may be sized to fit the individual application as long as
the correct proportions are maintained, and all elements of the USDA
Certified Biobased Product Label remain legible.
(2) The USDA Certified Biobased Product Label must be surrounded by
a border of clear space that must be of sufficient width to offset it
from surrounding images and text to avoid confusion. If a one-color
outline version of the USDA Certified Biobased Product Label is used,
the USDA Certified Biobased Product Label must appear on a solid
background that is a contrasting color.
(i) Where to obtain copies of the promotional certification
materials. The USDA Certified Biobased Product Label and other
associated promotional materials including the USDA BioPreferred
Program Brand and Marketing Guidelines are available at the
BioPreferred Program website (biopreferred.gov).
Sec. 4270.12 Violations of program requirements.
This section identifies the types of actions that USDA considers
violations under this part and the penalties (e.g., the suspension or
revocation of certification) associated with such violations.
(a) General. Violations under this section occur on a per product
basis and the penalties are to be applied on a per product basis.
Entities cited for a violation under this section may appeal using the
provisions in Sec. 4270.13. If certification for a product is revoked,
the Participating Organization whose certification has been revoked may
seek re-certification for the product specified under the provisions in
Sec. 4270.9.
(b) Types of violations. Actions that will be considered violations
of this part include, but are not limited to, the examples as described
in paragraphs (b)(1) through (4) of this section:
(1) Biobased Content violations. USDA reserves the right to request
occasional testing of Certified Biobased Products without notice to
compare the Biobased Content of the tested product with the product's
Applicable Minimum Biobased Content and the Biobased content reported
in its Certified Application. Such testing will be conducted using ASTM
Method D6866 in accordance with the procedures discussed in Sec.
4270.7.
(i) If the testing shows that the Biobased Content of a Certified
Biobased Product is less than its Applicable Minimum Biobased Content,
then a violation of this part will have occurred.
(ii) If the testing shows that the Biobased Content is less than
that reported in the product's Certified Application but is still equal
to or greater than its Applicable Minimum Biobased Content(s), USDA
will provide written notification to the Participating Organization.
The participant must submit, within 90 Days from receipt of USDA
written notification, a new application for the lower Biobased Content.
Failure to submit a new application within 90 Days will be considered a
violation of this part.
(A) The participant can submit a new application to use the
Biobased Content reported to it by USDA in the written notification.
(B) Alternatively, the participant may submit a new application and
elect to retest the product in question. If the participant elects to
retest the product, it must test a sample of the current product, and
the procedures in Sec. 4270.9 must be followed. USDA reserves the
right to select the sample that will be submitted for retesting.
(2) USDA Certified Biobased Product Label violations. (i) Any usage
or display of the USDA Certified Biobased Product Label that does not
conform to the requirements specified in Sec. 4270.10.
(ii) Affixing the USDA Certified Biobased Product Label to any
product prior to issuance of a notice of certification from USDA.
(iii) Affixing the USDA Certified Biobased Product Label to a
Certified Biobased Product during periods when certification has been
suspended or revoked.
(iv) Using an image or icon other than the official USDA Certified
Biobased Product Label in association with certification claims.
(3) Application violations. Knowingly providing false or misleading
information in any application for certification of a Biobased Product.
(4) BioPreferred Program website violations. Failure to provide
USDA with updated information when the information for a Certified
Biobased Product becomes outdated or when new information for a
Certified Biobased Product becomes available.
[[Page 97475]]
(c) Noncompliance and escalation of actions. Any identified
violations as described in paragraphs (b)(1) through (4) are considered
noncompliance with this part. USDA will respond to noncompliance
through actions that include, but are not limited to, the examples as
described in paragraphs (c)(1) through (4).
(1) Noncompliance. USDA will provide the applicable Participating
Organization and any Other Entity involved, as known to USDA, written
notification of any noncompliance identified by USDA, as well as
actions that should be taken to resolve the noncompliance. USDA may
remove the product or company information from the BioPreferred Program
website (biopreferred.gov) until the noncompliance is corrected. If
satisfactory resolution of the noncompliance is not reached, USDA will
consider the noncompliance to be a violation of this part and may
pursue further action as discussed in paragraphs (c)(2) through (4) of
this section.
(2) Violation. USDA will first issue a notice of violation.
Entities who receive a notice of violation for any violation must
correct the violation(s) within 30 Days from receipt of the notice of
violation. If the entity receiving a notice of violation is a
Participating Organization, USDA will also issue notices of suspensions
and revocations, as discussed in paragraph (c)(3) of this section. USDA
reserves the right to further pursue action against these entities as
provided in paragraph (c)(4) of this section. If the entity receiving a
notice of violation is an Other Entity (i.e., not a Participating
Organization), then USDA may pursue action according to paragraph
(c)(4) of this section.
(3) Suspension and Revocation. (i) If a violation is applicable to
a Participating Organization and the participant fails to make the
required corrections within 30 Days of receipt of a notice of
violation, USDA will notify the participant, via email and certified
mail as appropriate, of the continuing violation, and the certification
for that product will be suspended. As of the date that the participant
receives a notice of suspension, the participant and their Designated
Representatives must not affix the USDA Certified Biobased Product
Label to any of that product or associated packaging not already
labeled and must not distribute any additional products bearing the
USDA Certified Biobased Product Label. USDA will both remove the
product information from the BioPreferred Program website
(biopreferred.gov) and actively communicate the product suspension to
buyers in a timely and overt manner.
(ii) If, within 30 Days from receipt of the notice of suspension,
the participant whose USDA product certification has been suspended
makes the required corrections and notifies the USDA that the
corrections have been made, the participant and their Designated
Representatives may, upon receipt of USDA approval of the corrections,
resume use of the USDA Certified Biobased Product Label. USDA will also
restore the product information to the BioPreferred Program website
(biopreferred.gov).
(iii) If, following the 30-Day period, the participant does not
make the required corrections, the certification for that product will
be revoked. As of that date, the participant must not affix the USDA
Certified Biobased Product Label to any of that product not already
labeled. In addition, the participant and their Designated
Representatives are prohibited from further sales of the product to
which the USDA Certified Biobased Product Label is affixed, and the
product will no longer be listed on the BioPreferred Program website
(biopreferred.gov) as a product qualified for preferred Federal
procurement.
(iv) If a participant whose product certification has been revoked
wishes to participate in the BioPreferred Program again, the
participant must follow the procedures required for the original
certification specified in Sec. 4270.9.
(4) Other remedies. In addition to the suspension or revocation of
the product certification, depending on the nature of the violation,
USDA may pursue suspension or debarment of the entities involved in
accordance with 2 CFR part 417 and 48 CFR subpart 9.4. USDA further
reserves the right to pursue any other remedies available by law,
including any civil or criminal remedies, against any entity that
violates the provisions of this part.
Sec. 4270.13 Appeal process.
Participating Organizations whose product certification has been
revoked may appeal to USDA.
(a) Filing an appeal. (1) Appeals to the Agency must be filed
within 30 Days of receipt by the appellant of a notice of suspension
and revocation. Appeals must be filed in writing via email to the
BioPreferred Program's email address as noted on the BioPreferred
Program website (biopreferred.gov).
(2) All appeals must include a copy of the adverse decision and a
statement of the appellant's reasons for believing that the decision
was not made in accordance with the applicable Program regulations,
policies, or procedures, or otherwise was not proper.
(b) Reviewing appeals. (1) If USDA sustains a Participating
Organization's appeal of a notice of suspension and revocation, the
participant and its Designated Representative(s) may immediately resume
affixing the USDA Certified Biobased Product Label to the Certified
Biobased Product and sell and distribute the Certified Biobased Product
with the USDA Certified Biobased Product Label. In addition, USDA will
reinstate the product's information to the BioPreferred Program website
(biopreferred.gov).
(2) If USDA denies a participant's appeal of a notice of suspension
and revocation, then the notice of suspension and revocation stands.
(c) Appeals of decisions made on appeals. Appeals of any of the
BioPreferred Program's decisions may be made to the Rural Business-
Cooperative Service Administrator. Appeals must be made, in writing,
within 30 Days of receipt of USDA's decision and addressed to: Rural
Business-Cooperative Service Administrator, 1400 Independence Avenue
SW, Washington, DC 20250-1522 STOP 3250. If the Rural Business-
Cooperative Service Administrator sustains an appeal, the provisions of
paragraph (b) of this section will apply.
Sec. 4270.14 Reporting and recordkeeping.
(a) Providing product information to Federal agencies--(1)
Informational website. An informational USDA website implementing
section 9002 of FSRIA can be found at: biopreferred.gov. USDA will
maintain a web-based information site for participating originations
with Certified Biobased Products and Federal agencies to exchange
information, as described in paragraphs (a)(1)(i) through (iv) of this
section as applicable.
(i) Product information. The website will, as determined to be
necessary by the Secretary based on the availability of data, provide
the information specified in Sec. 4270.9. USDA encourages Federal
agencies to utilize this website to obtain current information on
designated categories, contact information for Participating
Organizations, and access to information on product characteristics
relevant to procurement decisions. In addition to any information
provided on the website, participants are expected to provide relevant
information to Federal agencies, subject to the limitations specified
in paragraph (a)(1)(ii) of this section, with respect to product
characteristics, including verification of such characteristics if
requested.
[[Page 97476]]
(ii) Providing information on price and environmental and health
benefits. Federal agencies may not require Participating Organizations
with Certified Biobased Products to provide procuring agencies with
more data than would be required of other manufacturers or vendors
offering products for sale to a Procuring Agency (aside from data
confirming the Biobased Contents of the products) as a condition of the
purchase of Biobased Products from the participant. USDA encourages
industry Stakeholders to provide information on environmental and
public health benefits based on industry accepted analytical approaches
including, but not limited to, material carbon footprint analysis, the
International Standards Organization (ISO) 14040, the ASTM
International life-cycle cost method (E917) and multi-attribute
decision analysis (E1765), and the British Standard Institution PAS
2050. USDA will make such Stakeholder-supplied information available on
the BioPreferred Program website (biopreferred.gov).
(iii) Industry standards test information. The product information
will include any relevant industry standard test information as
supplied by the participant. In assessing performance of a Certified
Biobased Product, USDA requires that procuring agencies rely on results
of performance tests using applicable ASTM, ISO, Federal or military
specifications, or other similarly authoritative industry test
standards. Such testing may be conducted by a laboratory compliant with
the requirements of the standards body. The procuring official will
decide whether performance data must be brand-name specific in the case
of products that are essentially of the same formulation.
(iv) Biodegradability information. If Biodegradability is claimed
by a participant with a Certified Biobased Product as a characteristic
of that product, USDA requires that, if requested by procuring
agencies, these claims be verified using the appropriate, product-
specific ASTM Biodegradability standard(s). Such testing must be
conducted by an ASTM/ISO-compliant laboratory. The procuring official
will decide whether Biodegradability data must be brand-name specific
in the case of products that are essentially of the same formulation.
ASTM Biodegradability standards include:
(A) D5338 (Standard Test Method for Determining Aerobic
Biodegradation of Plastic Materials Under Controlled Composting
Conditions);
(B) D5864 (Standard Test Method for Determining the Aerobic Aquatic
Biodegradation of Lubricants or Their Components);
(C) D5988 (Standard Test Method for Determining Aerobic
Biodegradation of Plastic Materials in Soil);
(D) D6006 (Standard Guide for Assessing Biodegradability of
Hydraulic Fluids);
(E) D6400 (Standard Specification for Compostable Plastics) and the
standards cited therein;
(F) D6139 (Standard Test Method for Determining the Aerobic Aquatic
Biodegradation of Lubricants of Their Components Using the Gledhill
Shake Flask);
(G) D6868 (Standard Specification for Biodegradable Plastics Used
as Coatings on Paper and Other Compostable Substrates); and
(H) D7081 (Standard Specification for Non-Floating Biodegradable
Plastics in the Marine Environment).
(2) Advertising, labeling, and marketing claims. Participating
Organizations are reminded that their advertising, labeling, and other
marketing claims, including claims regarding health and environmental
benefits of the product, must conform to 16 CFR part 260 (Federal Trade
Commission Guides for the Use of Environmental Marketing Claims). For
further requirements on marketing claims associated with the
BioPreferred Program, refer to the ``USDA BioPreferred Program Brand
and Marketing Guidelines'' found on the BioPreferred Program website
(biopreferred.gov).
(b) Records. Participating Organizations will maintain records
documenting compliance with this part for each product that has
received a notice of certification, as specified in paragraphs (b)(1)
through (3) of this section.
(1) The results of all tests, and any associated calculations,
performed to determine the Biobased Content of the product.
(2) The notice of certification from USDA, the dates of changes in
formulation that affect the Biobased Content of Certified Biobased
Products, and the dates when the Biobased Content of Certified Biobased
Products were tested.
(3) Documentation of analyses performed by participants to support
claims of environmental or human health benefits, life cycle cost,
sustainability benefits, and product performance made by the
participant.
(c) Record retention. For each Certified Biobased Product, records
kept under paragraphs (a) and (b) of this section must be maintained
for at least three years beyond the end of the certification period
(i.e., three years beyond the date the product's term of certification
expires). Records may be kept in either electronic format or hard copy
format. All records kept in electronic format must be readily
accessible and/or provided by request.
Sec. 4270.15 Oversight and monitoring.
(a) General. USDA will conduct oversight and monitoring of
Participating Organizations, Designated Representatives, and Other
Entities involved with the BioPreferred Program to ensure compliance
with this part. This oversight may include, but not be limited to,
conducting facility visits to Participating Organizations that have
Certified Biobased Products and their Designated Representatives.
Participating Organizations are required to cooperate fully with all
USDA audit efforts for the enforcement of the BioPreferred Program
requirements.
(b) Biobased Content Testing. USDA will conduct Biobased Content
Testing of Certified Biobased Products as described in Sec.
4270.12(b)(1) to ensure compliance with this part.
(c) Inspection of records. Participating Organizations must allow
Federal representatives access to the records required under Sec.
4270.14 for inspection and copying during normal business hours.
(d) Audits. USDA will conduct an annual desk audit on an ongoing
basis to verify that the product and company information supplied by
Participating Organizations remain valid. Through the BioPreferred
Program website (biopreferred.gov), Participating Organizations will be
asked to confirm that they still manufacture the product, that the
formulation remains the same, and that the information described under
Sec. 4270.9(a)(1) remains valid. Participants may also be asked for
additional supplemental information.
(1) If a Participating Organization indicates that their product or
company information needs to be updated during an annual desk audit,
these updates will be incorporated into the BioPreferred Program
website (biopreferred.gov). If it is indicated that a product is no
longer manufactured, the product information will be removed from the
BioPreferred Program website (biopreferred.gov).
(2) If a Participating Organization fails to complete an annual
desk audit, the participant will be considered to be in noncompliance
with this part, and the Participating Organization and associated
product information will be removed from the BioPreferred Program
website (biopreferred.gov). USDA reserves the right to revoke product
[[Page 97477]]
certification for failure to participate in an audit.
Sec. Sec. 4270.16-4270.98 [Reserved]
Sec. 4270.99 OMB control number.
The information collection requirements in this part are approved
by the Office of Management and Budget (OMB) and assigned OMB control
number 0570-0083.
Xochitl Torres Small,
Deputy Secretary, United States Department of Agriculture.
[FR Doc. 2024-28431 Filed 12-6-24; 8:45 am]
BILLING CODE 3410-XY-P