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Proposed Rule2024-00981

Biobased Markets Program

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Published

January 24, 2024

Issuing agencies

Agriculture DepartmentProcurement and Property Management, Office ofRural Business-Cooperative Service

Abstract

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 proposed rule with request for comments to adopt changes from the Agriculture Improvement Act of 2018 (2018 Farm Bill). These proposed 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. The plain language summary of the proposal is available on Regulations.gov in the docket for rulemaking.

Full Text

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[Federal Register Volume 89, Number 16 (Wednesday, January 24, 2024)]
[Proposed Rules]
[Pages 4770-4797]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00981]

[[Page 4769]]

Vol. 89

Wednesday,

No. 16

January 24, 2024

Part IV

Department of Agriculture

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Office of Procurement and Property Management

Rural Business-Cooperative Service

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7 CFR Parts 3201, 3202, and 4270

Biobased Markets Program; Proposed Rule

Federal Register / Vol. 89 , No. 16 / Wednesday, January 24, 2024 /
Proposed Rules

[[Page 4770]]

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DEPARTMENT OF AGRICULTURE

Office of Procurement and Property Management

7 CFR Parts 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: Proposed rule; request for comments.

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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 proposed rule with
request for comments to adopt changes from the Agriculture Improvement
Act of 2018 (2018 Farm Bill). These proposed 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. The plain language summary of the proposal is available on
<a href="http://Regulations.gov">Regulations.gov</a> in the docket for rulemaking.

DATES: Comments are due on or before March 25, 2024.

ADDRESSES: Information regarding the BioPreferred[supreg] Program is
available at <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>.
Comments may be submitted on this rulemaking using the following
methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
All submissions must include the Agency name, Docket Number and
Regulatory Information Number (RIN). Also, submissions should be
identified as ``Redesignation of the BioPreferred Program.''

FOR FURTHER INFORMATION CONTACT: Vernell Thompson, Procurement Analyst,
USDA RD, 1400 Independence Avenue SW, Washington, DC 20250-1522, STOP
3250; email: <a href="/cdn-cgi/l/email-protection#a5d3c0d7cbc0c9c98bd1cdcac8d5d6cacbe5d0d6c1c48bc2cad3">[email&#160;protected]</a>; phone (202) 720-4145.

SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:

I. Authority
II. Background
III. Organization of the Rule
IV. Summary of Proposed Changes
A. Section 4270.1 Purpose and Scope
B. Section 4270.2 Definitions
C. Section 4270.3 Applicability
D. Section 4270.4 Criteria for Eligibility
E. Section 4270.5 Procurement Programs
F. Section 4270.6 Category Designation
G. Section 4270.7 Determining Biobased Content
H. Section 4270.8 [Reserved]
I. Section 4270.9 Initial Approval Process
J. Section 4270.10 [Reserved]
K. Section 4270.11 Requirements Associated With Promotional
Certification Materials
L. Section 4270.12 Violations of Program Requirements
M. Section 4270.13 Appeal Process
N. Section 4270.14 Reporting and Recordkeeping
O. Section 4270.15 Oversight and Monitoring
P. Section 4270.99 OMB Control Number
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. Environmental Impact Statement
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

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 proposed rule as section 9002 of FSRIA.

II. Background

The Agency is proposing to implement 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 proposing to make amendments as
outlined in section IV of this proposed rule.
The legacy rules established the two core initiatives of the
BioPreferred Program. part 3201 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 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 proposing to merge the legacy rules
into one streamlined regulation which 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. Organization of the Rule

To help the public locate existing regulatory provisions found in
the new rule, the Agency provides the following table showing sections
under the new BioPreferred Program regulations and where the
information and requirements were previously located in the legacy
regulations.

Table 1--BioPreferred Program CFR Sections
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New biopreferred program regulation Current (legacy) regulations
section number and title section numbers and titles
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Sec. 4270.1 Purpose and Scope........... Sec. 3201.1 Purpose and
scope. Sec. 3202.1
Purpose and scope.
Sec. 4270.2 Definitions................. Sec. 3201.2 Definitions.
Sec. 3202.2 Definitions.
Sec. 4270.3 Applicability............... Sec. 3201.3 Applicability
to Federal procurements.
Sec. 3202.3
Applicability.

[[Page 4771]]

Sec. 4270.4 Criteria for Eligibility.... Sec. 3202.4 Criteria for
product eligibility to use
the certification mark.
Sec. 3201.5 Category
designation.
Sec. 4270.5 Procurement programs........ Sec. 3201.4 Procurement
programs.
Sec. 4270.6 Category designation........ Sec. 3201.5 Category
designation. Sec. 3202.5
Initial approval process.
Sec. 4270.7 Determining Biobased Content Sec. 3201.7 Determining
biobased content.
Sec. 4270.8 [Reserved]..................
Sec. 4270.9 Initial Approval Process.... Sec. 3202.5 Initial
approval process. Sec.
3202.8 Violations.
Sec. 4270.10 [Reserved].................
Sec. 4270.11 Requirements Associated Sec. 3202.7 Requirements
with Promotional Certification Materials. associated with the
certification mark.
Sec. 4270.12 Violations of Program Sec. 3202.8 Violations.
Requirements.
Sec. 4270.13 Appeal Process............. Sec. 3202.6 Appeal
processes.
Sec. 4270.14 Reporting and Recordkeeping Sec. 3201.6 Providing
product information to
Federal agencies. Sec.
3201.8 Determining price,
environmental and health
benefits, and performance.
Sec. 3202.9 Recordkeeping
requirements.
Sec. 4270.15 Oversight and Monitoring... Sec. 3202.10 Oversight and
monitoring.
Sec. 4270.99 OMB Control Number.........
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IV. Summary of Proposed Changes

A. Section 4270.1 Purpose and Scope

The purpose of this proposed rule is to establish procedures and
guidelines for the implementation of the BioPreferred Program by
combining the purpose and scope of Sec. Sec. 3201.1 and 3202.1 into
one.

B. Section 4270.2 Definitions

The Agency is combining the definitions sections of Sec. Sec.
3201.2 and 3202.2 into one and amending as follows:
a. Merged Definitions Only. The following definitions were merged
from Sec. Sec. 3201.2 and 3202.2 without revisions or substantial
revisions: ASTM International (ASTM), Biobased Content,
Biodegradability, Biological Products, Complex Assembly, Days, Federal
agency, Forest Product, formulated product, FSRIA, Ingredient, ISO, ISO
9001 Conformant, Other Entity, Renewable Chemical, Secretary, and USDA.
The following terms do not occur anywhere throughout the proposed rule
other than in specific other definitions (term indicated in
parenthesis): Forest Product (Biobased Product), Renewable Chemical
(Biobased Product), and Biological Products (Biobased Product and
Intermediate Ingredient or Feedstock). Defining these terms associated
with these specific definitions is important to the Agency to provide
context and clarity.
b. Removal of Existing Definitions. The Agency is removing the
definitions for BEES, Biobased components, Designated Intermediate
Ingredient or Feedstock category, Diluent, Engineered wood products,
EPA-designated recovered content product, FCEA, Filler, Forest
thinnings, Functional unit, Manufacturer, Neat product, Program
manager, Relative price, Small and emerging private business
enterprise, Sustainably managed forests, and Vendor because these terms
are not referenced in the combined rule.
c. Revising Existing Definitions. The Agency is revising the
following definitions:
1. Agricultural materials. The Agency is making minor changes to
clarify this definition by including a complete list of exclusions
commensurate with section 9002 of FSRIA. The Agency believes that by
adding this clarification, interested parties will be able to find
these exclusions more easily. This term does not occur anywhere
throughout the proposed rule other than in the specific definitions for
Biobased Product and Intermediate Ingredient or Feedstock. The Agency
believes it is important to define this as a standalone term to provide
context and clarity.
2. Applicable minimum biobased content. The Agency is amending this
definition to note that the Applicable Minimum Biobased Content is the
level set by USDA that a product must meet or exceed to qualify for
both the Federal procurement preference and use of the Label. This
change is necessary because the combined rule provides one set of
requirements to qualify for both the Federal procurement preference and
the use of the Label. Previously, the term was defined only with
respect to the use of the Label.
3. Biobased product. The Agency is amending this definition to
include Renewable Chemicals, as directed by section 9002 of FSRIA. In
addition to this change, the Agency is also amending the definition of
Biobased Product to clarify that, for the purposes of the BioPreferred
Program, the term does not include motor vehicle fuels, heating oils,
or electricity. Motor vehicle fuels, heating oils, and electricity have
always been excluded from participating in the BioPreferred Program by
statute, and the Agency believes that by adding this clarification to
the definition of Biobased Product, interested parties will be able to
find these exclusions more easily.
4. Certification icon. The Agency is changing the term
``Certification mark artwork'' to ``Certification Icon,'' and the
definition for this term is being amended such that Certification Icon
refers only to the circular logo that depicts the symbols of the sun,
the soil, and the aquatic environments rather than to the complete
Label. The Agency believes this change will make it easier to clarify
what artwork can be used for Program participants and Other Entities
wishing to promote Certified Biobased Products.
5. Certified biobased product. The Agency is amending the
definition of Certified Biobased Product to describe that certified
products are eligible for preferred Federal procurement and that they
have been approved to display the Label. The Agency believes this
change, in conjunction with the process changes described in this
preamble, will satisfy the requirement of section 9002 of FSRIA to
establish one integrated process through which products can both be
determined to be eligible for preferred Federal procurement and
approved to use the Label.
6. Designated product category. The Agency is amending this
definition to include that Certified Biobased Products that meet the
criteria for at least one designated category will be eligible for the
procurement preference. The Agency is also amending the definition to
state that these categories will be identified in the Register of
Designated Categories on the BioPreferred Program website at <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a> and the Agency is adding the term Register of
Designated Categories to refer to the list of product categories that
have been designated for the procurement preference. Designated Product
Categories were identified in 7 CFR part 3201, subpart B. Because of
this, the process for adding and amending designated categories
required the Agency to go through the rulemaking process, which made
such changes time consuming. The Agency believes that by identifying
Designated

[[Page 4772]]

Product Categories on the BioPreferred Program website at <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a> rather than in the CFR, the Agency will be able to
make changes to Designated Product Categories more readily.
7. Designated representative. The Agency is amending this
definition to clarify that a Designated Representative is an entity
that has been authorized to act on behalf of a Participating
Organization throughout the certification process, rather than only
when affixing the Label to the Certified Biobased Product.
8. Intermediate Ingredient or Feedstock. The Agency is amending
this definition to use the new term Participating Organization in place
of manufacturer or vendor. The definition is otherwise unchanged.
9. Procuring Agency. The Agency is amending this definition to
clarify that the term Procuring Agency applies to businesses
contracting with any Federal agency to perform work under the contract,
rather than applying to persons contracting with any Federal agency.
The Agency believes this change will make it clear that the term
applies to business entities and not individuals.
10. Qualified biobased product. The Agency is amending this
definition to state that Designated Product Categories will be found on
the BioPreferred Program website at <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>.
11. Stakeholder. The Agency is changing the term Relevant
Stakeholder to Stakeholder. The Agency believes it is redundant to
specify Relevant Stakeholders as the term Stakeholder implies
relevancy. The definition is otherwise unchanged.
12. USDA Certified Biobased Product Label. The Agency is amending
the term Certification Mark to be referred to as USDA Certified
Biobased Product Label, and the definition for this term is being
amended to include figures depicting the Label. The Agency believes
this change will eliminate any confusion caused by using the general
term Certification Mark to refer to the Label.
d. Adding New Definitions. The agency is adding the definitions
below. An explanation for the addition of these definitions is
provided.
1. Biobased content testing. The Agency is defining this term
because it is regularly used when the Agency discusses testing and
verifying the Biobased Content of a product for the purposes of
participating in the BioPreferred Program.
2. Certified application. The Agency is defining this term because
it is regularly used when the Agency discusses participating in the
BioPreferred Program with Program Stakeholders. The Agency believes
defining this term will help Stakeholders understand the term in
context more readily.
3. Defined product category. The Agency is adding this term to
refer to a category that has been established for a specified grouping
of Biobased Products with similar characteristics and intended uses.
The Agency is adding this term to provide a distinction between the
Other product category and product categories that have been
established for a specified grouping of Biobased Products. Although
these changes are not required by section 9002 of FSRIA, the Agency
believes the added term and definition will provide clarity to the
rule.
4. Innovative criteria. This term is regularly used when the Agency
discusses participating in the BioPreferred Program with Program
Stakeholders. The Agency believes defining this term will help
Stakeholders understand the terms in context more readily.
5. Parent product. This term is regularly used when the Agency
discusses participating in the BioPreferred Program with Program
Stakeholders. The Agency believes defining this term will help
Stakeholders understand the terms in context more readily.
6. Participating organization. The Agency is defining this term to
replace the previously defined terms manufacturer and vendor. This new
term describes entities that have completed steps to participate in the
BioPreferred Program, including manufacturers and vendors of Biobased
Products. The term vendor has caused some confusion in the past as it
was not clear what qualified an entity as a vendor of a unique Biobased
Product in contrast to a retailer that sells Other Entities' Biobased
Products. The Agency believes that using the term Participating
Organization will reduce this confusion for Stakeholders.
7. Prequalification. This term is regularly used when the Agency
discusses participating in the BioPreferred Program with Program
Stakeholders. The Agency believes defining this term will help
Stakeholders understand the terms in context more readily.
8. Register of Designated Categories. This term is being added to
refer to the list of product categories that have been designated for
the procurement preference. The Agency believes defining this term will
help Stakeholders readily identify and locate the list of Designated
Product Categories as it will no longer be embedded in the BioPreferred
Program's regulation.

C. Section 4270.3 Applicability

This proposed rule combines and consolidates the applicability
sections of the BioPreferred Program's legacy rules, Sec. Sec. 3201.3
and 3202.3. Additionally, the Agency is adding language to clarify who
may participate respective of a given branded product. Over the years
of implementing the BioPreferred Program, the Agency has received
numerous questions regarding whether a given branded product could
participate under multiple organizations, and the Agency believes this
change will help clarify this question for Stakeholders. Otherwise, no
major changes are being made.

D. Section 4270.4 Criteria for Eligibility

This proposed rule incorporates information from Sec. 3202.4 with
the revisions discussed below. Part 3201 did not have a section for
criteria for product eligibility to use the Label.
a. Biobased Product. In this proposed rule, the Agency is
clarifying that, to demonstrate that a product meets the definition of
a Biobased Product, the Biobased Content of all products for which an
application for certification is submitted must undergo Biobased
Content Testing as described in Sec. 4270.7 of this proposed rule. One
of the goals of this proposed rule is to establish one set of rules for
any Biobased Product to be qualified for the Federal procurement
preference established by section 9002 of FSRIA and to be eligible to
display the Label. Under part 3202, the Agency established a well-
defined process through which Participating Organizations may apply to
have their Biobased Products certified; this process requires the
product to undergo Biobased Content Testing to demonstrate that the
product meets the definition of a Biobased Product. Under Sec. 3201.7,
Participating Organizations were similarly required to undergo Biobased
Content Testing to demonstrate that the product meets the minimum
requirements; however, under Sec. 3201.7, Participating Organizations
would self-certify that the testing was completed and the product met
the requirements. Through the years of implementing these rules,
Stakeholders, including Federal purchasers, have provided feedback
expressing uncertainty in this self-certification method due to the
lack of oversight. The Agency believes that requiring Biobased Products
to have their Biobased Contents tested and confirmed through a well-
defined process will allow

[[Page 4773]]

Federal agencies to make more informed decisions when evaluating
Biobased Products for purchase. Additionally, in recent years, the
Agency has found that most organizations interested in participating in
the BioPreferred Program elect to undergo Biobased Content Testing so
that they may display the Label in addition to becoming qualified for
the Federal procurement preference. Therefore, the Agency believes it
is reasonable and fair to require that all Biobased Products undergo
Biobased Content Testing to participate in the BioPreferred Program.
Participation in the BioPreferred Program is voluntary; if an
organization wishes to market their Biobased Product to Federal
agencies without undergoing Biobased Content Testing through the
BioPreferred Program, they may do so, provided the product meets the
two other criteria for eligibility. It is not a requirement that a
Biobased Product participates in the BioPreferred Program to be
qualified for the Federal procurement preference.
1. Products that are qualified for preferred Federal procurement
but not certified as of the date of publication for this rule. Due to
this change in requirements for Biobased Content Testing, the Agency is
including provisions in this proposed rule to provide a grace period
for Participating Organizations with products that are qualified for
preferred Federal procurement but not certified to use the Label. These
Qualified Biobased Products will continue to remain eligible to
participate in the BioPreferred Program for three years following [DATE
OF PUBLICATION OF THIS FINAL RULE IN THE FEDERAL REGISTER] unless the
product is reformulated or discontinued before three years have passed,
whichever comes first. To remain eligible to participate in the
BioPreferred Program after the three-year period, these products will
be required to submit an application and complete the certification
process as described in Sec. 4270.9 of this proposed rule. The Agency
believes it is necessary to implement a grace period for such
Participating Organizations to conform to the updated BioPreferred
Program rules as the Agency's goal is not to preclude any Participating
Organization from being able to continue to participate in the
BioPreferred Program.
2. Exclusions. The Agency is adding products that are intended to
be ingested or inhaled such as pharmaceuticals or nutraceuticals to the
list of types of products that are excluded from participating in the
BioPreferred Program. Food and animal feed are already excluded by
definition and, previously, it was unclear whether these exclusions
include any type of product that is ingested, such as pharmaceuticals
and nutraceuticals. The Agency believes it is reasonable to exclude
products that are intended to be ingested or inhaled as an extension of
excluding food and feed.
b. Minimum Biobased Content. The rule uses the language from Sec.
3202.4(b) with no significant revisions.
1. Products that fall under one or more defined product categories.
Section 3202.4(b)(1) established this section as Qualified Biobased
Products. The rule defines a Qualified Biobased Product as one that
meets the definition and Applicable Minimum Biobased Content criteria
for one or more Designated Product Category, which may include the
Other category. Section 3202.4(b)(1) was intended to refer specifically
to products that fall into one or more Defined Product Category, not
including the Other category. The Agency is renaming the Qualified
Biobased Products section to Products that fall under one or more
defined product categories to preserve the intent of Sec.
3202.4(b)(1).
i. Product is within a single product category. The rule uses the
language from Sec. 3202.4(b)(1)(i) with a modification to indicate
where the minimum Biobased Content for the defined project category can
be found. In Sec. 3202.4(b)(1)(i) the minimum Biobased Content
specified for the item was found within the regulation, and the revised
rule modifies this by having the defined project category found in the
Register of Designated Categories on the BioPreferred Program website
at <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>.
ii. Product is within multiple product categories. The rule uses
the language from Sec. 3202.4(b)(1)(ii) with a modification to where
the minimum Biobased Content is specified for the defined project
category is found. This rulemaking modifies this by having the defined
project category found in the Register of Designated Categories on the
BioPreferred Program website at <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>. This
rulemaking also clarifies that a product that falls under more than one
Defined Product Category must meet the minimum Biobased Content
requirement for the category that most closely describes the product's
primary intended use. The Agency believes this change from the legacy
rules will help ensure that products meet the minimum Biobased Content
requirements for the most appropriate category, and it will provide the
Agency a regulatory basis for determining if a product that may fall
under multiple defined categories is eligible to participate.
2. Products that do not meet the definition of at least one Defined
Product Category. The rule uses some of the language from Sec.
3202.4(b)(2) with modifications. In this proposed rule, the Agency is
setting the minimum Biobased Content requirement for products that do
not meet the definition of at least one Defined Product Category at 30
percent. Previously, the minimum Biobased Content requirement for
products that do not meet the definition of at least one Defined
Product Category was set at 25 percent. Given the technology advances
that have taken place in the ten years since the previous minimum was
set, the Agency believes it is reasonable to raise that minimum to 30
percent. The Agency believes this change will encourage Biobased
Product manufacturers to incorporate more biobased feedstocks in
products that are otherwise not biobased without setting the minimum so
high that utilizing biobased feedstocks becomes unfeasible.
The Agency is proposing a process to evaluate products that do not
fall under a Defined Product Category using the procedure outlined in
Sec. 4270.6 for adding new product categories to the Register of
Designated Categories. The requirement that a product must be at or
above its Applicable Minimum Biobased Content to participate in the
BioPreferred Program is consistent with the legacy rules of the
BioPreferred Program. The Agency believes this requirement is necessary
so that the Label is not used to promote products with de minimis
Biobased Content.
c. Innovative Criteria. The rule uses the language from Sec. Sec.
3201.5(b)(2) and 3202.4(c) with a few modifications. The last sentence
of the first paragraph was modified to add ``or revoke''. The Agency is
adding this language to clarify that products must meet one or more
Innovative Criteria throughout the life of the certification, and
failure to do so may result in the product's certification being
revoked. The Agency believes this change will help Participating
Organizations better understand the requirements for maintaining
product certification.
The rule uses the list of Innovative Criteria from Sec. Sec.
3201.5(b)(2)(i) through (iv) and 3202.4(c)(1) though (4) with a few
modifications. Since the implementation of the Innovative Criteria
requirement, the Agency has learned that many manufacturers use
technologies that reduce waste during the manufacturing process, which
allows the manufacturing process to be more sustainable. The Agency
believes these practices represent an innovative

[[Page 4774]]

approach to manufacturing products in a similar manner to using
technologies that ensure high feedstock material recovery and use as
described in Sec. Sec. 3201.5(b)(2)(ii)(B) and 3202.4(c)(2)(ii), and
therefore, the Agency is adding reducing waste to the previously
established language.
The rule modifies the language from Sec. Sec. 3201.5(b)(2)(iv)(C)
and 3202.4(c)(4)(iii) to include agricultural wastes in the example for
clarity. Through the years of implementing the Innovative Criteria
requirement, the Agency has received multiple inquiries about whether
using agricultural waste is considered a form of recycling. Since the
implementation of the Innovative Criteria requirement, the Agency has
found this criterion codified at Sec. 3202.4(c)(4)(iii) to be too
restrictive. The Agency believes the distinction that the raw material
come from an urban environment eliminates many products from meeting
this criterion even if the raw material used in the product is obtained
in a manner that otherwise meets this criterion. Thus, in this proposed
rule, the Agency is amending this criterion as codified at Sec.
4270.4(c)(4)(iii).
Additionally, in this proposed rule the Agency is adding an
innovative criterion at Sec. 4270.4(c)(4)(iv) to allow more
opportunities for products that are made from a variety of biobased raw
materials to demonstrate that the raw material is obtained or processed
in an innovative or ethical manner as prescribed by industry standards,
which ultimately may make it easier for organizations to show that
their Biobased Products meet the eligibility criteria. The Agency is
also providing some examples of how a product could meet this new
criterion. For example, a manufacturer that makes a laundry detergent
formulated using surfactants derived from palm oil could meet this
innovative criterion by showing that their palm oil has received
certification from the Roundtable on Sustainable Palm Oil, verifying
that the palm oil has been ethically and sustainably sourced. As
another example, a manufacturer of biobased water bottles that are
Cradle to Cradle Certified[supreg] through the Cradle to Cradle
Products Innovation Institute could meet this innovative criterion.
Products that are Cradle to Cradle Certified[supreg] are assessed for
environmental and social performance to determine if the
certification's standards are met across five performance categories:
material health, material reutilization, renewable energy and carbon
management, water stewardship, and social fairness.

E. Section 4270.5 Procurement Programs

a. Integration into the Federal procurement framework. The rule
uses the language from Sec. 3201.4(a) with no revisions.
b. Federal agency preferred procurement programs. The rule uses
language from Sec. 3201.4(b) with some amendments for clarification.
The amendments are discussed below.
Section 3201.4(b)(1) established guidelines for implementing the
procurement requirements associated with Biobased Products set forth by
section 9002 of FSRIA. In this rulemaking, the Agency is clarifying
that Federal agencies are required to maintain and implement
procurement programs to ensure that Qualified Biobased Products are
being purchased to the maximum extent practicable. Also, the Agency is
clarifying the language from Sec. 3201.4(b)(1)(ii) to state that these
procurement programs must include a training program, previously
referred to as a promotion program, to educate the Federal agency and
its contractors on the requirements. The Agency believes the meaning of
the term promotion program was unclear, which made it difficult for
Federal agencies to implement the requirement. The Agency believes the
term training program is more appropriate in this context, and the
Agency has provided further explanation of the purpose of the training
program for additional context.
The Agency is also clarifying the language from Sec.
3201.4(b)(1)(iv), that the procurement program must include 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 (<a href="https://sam.gov">https://sam.gov</a>), as
specified under the requirements in 48 CFR 52.223-2 (Federal
Acquisition Regulation (FAR)). While both Federal agencies and their
contractors have always been required to report quantities and types of
Biobased Products purchased, the Agency believes specifying that this
requirement applies to Federal contractors as well as Federal agencies
will lead to more accurate reporting of Biobased Product purchases.
Additionally, the Agency believes that clarifying in the rule to whom
Federal agencies and their contractors must report their biobased
purchases will also lead to more complete reporting of Biobased Product
purchases. The Agency hopes that more accurate and complete reporting
on the purchasing of Biobased Products by Federal agencies and their
contractors will allow the Agency to better determine the impact of the
BioPreferred Program on Federal purchasing and vice versa.
This proposed rule adds a new provision as Sec. 4270.5(b)(1)(v)
that calls for Federal agencies review and elimination of
specifications that prohibit the purchasing of Biobased Product. This
new provision is being added to emphasize the primary goal of the
procurement program to ensure that Qualified Biobased Products are
purchased to the maximum extent practicable.
The Agency is modifying the language previously found in Sec.
3201.4(b)(2)(i)(B), which stated that Federal agencies will adopt a
policy of awarding contracts to the vendor offering a Qualified
Biobased Product composed of the highest percentage of Biobased Content
possible except when such products ``fail to meet performance standards
set forth in the applicable specifications. . . .'' The Agency is
rewording this language for clarity to say, ``fail to meet performance
standards for the use to which they will be put. . . .''
Similarly, the Agency is modifying the language previously found in
Sec. 3201.4(b)(2)(i)(C), which states Federal agencies will adopt a
policy of awarding contracts to the vendor offering a Qualified
Biobased Product composed of the highest percentage of Biobased Content
possible except when such products ``are available only at an
unreasonable price.'' The Agency is rewording this for clarity to say,
``are not available at a reasonable price.'' The exception itself is
stipulated by section 9002 of FSRIA. It is up to the discretion of the
Federal agency or contractor to determine what price is reasonable.
This proposed rule adds a new provision as Sec. 4270.5(b)(2)(iii)
that calls for the preference program development by Federal agencies
to include a policy of documenting and reporting cases where it is not
possible to set specifications and award contracts in such a way that
is consistent with section 9002 of FSRIA and the requirements in this
proposed rule. Asking Federal agencies to document and report when they
are unable to procure Qualified Biobased Products will help the Agency
identify potential weaknesses in the requirements associated with
Designated Product Categories or with the BioPreferred Program rules.
The Agency believes receiving such feedback is vital to improving the
effectiveness of the BioPreferred Program and the effectiveness of the
preferred Federal purchasing initiative in particular.

[[Page 4775]]

Also, the Agency is modifying the language previously found in
Sec. 3201.4(b)(4) to clarify that Federal agencies should continue to
establish annual targeted biobased-only procurement requirements.
Previously, the language implied that this activity was completed once,
with a deadline of June 15, 2016, when the activity is meant to be an
ongoing practice to be evaluated each year.
c. Procurement specifications. This rulemaking is using some of the
language from Sec. 3201.4(c). This section is being modified because
the Agency is making updates to the guidelines to Federal agencies for
ensuring their procurement programs are updated when there are changes
or additions to Designated Product Categories. The Agency is directing
Federal agencies to ensure that their specifications for the use of
Qualified Biobased Products are consistent with the guidelines provided
in this proposed rule no later than six months after a Designated
Product Category is finalized and listed on the BioPreferred Program's
website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>), as discussed in section IV.F of
this preamble. Previously, under Sec. 3201.4(c), Federal agencies were
instructed to ensure their specifications require the use of Qualified
Biobased Products ``within a specified timeframe.'' The specified
timeframe was included under 7 CFR part 3201, subpart B for each
individual Designated Product Category. Typically, the specified
timeframe had been set as a period of one year. Shortening the
timeframe from one year to six months helps ensure that new categories
are established in a timely manner, and the Agency believes six months
is a reasonable timeframe for Federal agencies to review and update
specifications.

F. Section 4270.6 Category Designation

The Agency is making significant changes to the language in Sec.
3201.5. The 2018 Farm Bill instructed the Agency to create one
expedited process through which products may be determined to be
eligible for a Federal procurement preference and approved to use the
Label. The Agency evaluated options for satisfying those requirements,
and, in developing the revised procedure, the Agency was able to
accomplish the 2018 Farm Bill directives and establish a process that
requires less time and fewer resources.
a. Procedure. The Agency will maintain a Register of Designated
Categories on the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>) rather than in the Code of Federal Regulations
(CFR) as was previously done in 7 CFR part 3201, subpart B. The
Register of Designated Categories will include the category's name,
description, required minimum Biobased Content, and the date the
category was finalized as a designated category. The Register of
Designated Categories will include a list of all Designated Product
Categories, including categories of finished, consumer product
categories; Intermediate Ingredient and Feedstock (including Renewable
Chemicals) categories; and categories that include Complex Assembly
products. There will be two types of Designated Product Categories:
defined product categories, which are product categories that have been
established for a specified grouping of Biobased Products with similar
characteristics and intended uses, and the undefined product category
that is used to categorize new types of products while the Agency
evaluates the viability of designating a new Defined Product Category
for those products.
Under Sec. 3201.7, products were determined to be eligible for a
Federal procurement preference if the product met the requirements for
one or more Designated Product Category. Under Sec. 3202.4, Biobased
Products that did not meet the requirements for at least one Designated
Product Category could participate in the voluntary labeling initiative
of the BioPreferred Program under catalog categories, i.e., categories
that were established for the BioPreferred Program's product catalog
but that were not eligible for preferred Federal procurement. After
this proposed rule takes effect, it is the Agency's intention, to the
extent practicable, to designate all product categories for preferred
Federal procurement, including previously established catalog
categories. Additionally, the Agency intends to designate another
category in which products that do not meet the definition of a Defined
Product Category can be placed and still be eligible for preferred
Federal purchasing. With this change, all products will fall under at
least one Designated Product Category, making all products eligible for
preferred Federal procurement. The Agency believes this change, in
combination with the changes to the initial approval process as
discussed in section IV.I of this preamble, will satisfy the 2018 Farm
Bill directive to establish a single process to determine eligibility
for preferred Federal purchasing and approval to display the Label.
Further, the Agency believes the updates to the category
designation process will facilitate the process for creating or
updating Designated Product Categories in the future, so that specific
product category requirements can be revised as new data is gathered.
As the Designated Product Categories were imbedded in 7 CFR part 3201,
subpart B, it was difficult to make timely updates and additions due to
the sometimes lengthy rulemaking process. Rather than listing
Designated Product Categories in the BioPreferred Program's regulation,
the Agency will maintain the Register of Designated Categories on the
BioPreferred Program website <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>. The Agency
believes this change will expedite the process to designate new product
categories and amend existing Designated Product Categories.
Additionally, this change will give the Agency the ability to
investigate category suggestions from BioPreferred Program
Stakeholders, and then use that information to create or update
designated categories in a timely manner. The ability to make updates
to Designated Product Categories in a timely manner is especially
important because the Biobased Product industry is constantly evolving.
i. Adding new product categories to the Register of Designated
Categories. The Agency will use the data gathered during the product
application process to determine if a new defined product category
should be established. This aspect of the category designation process
is the same as was used for establishing new Designated Product
Categories requirements under the BioPreferred Program's legacy rules,
Sec. 3201.5(a). When the Agency determines that creating a new Defined
Product Category is appropriate, the Agency will create a category
name, definition, and required minimum Biobased Content for the new
category based on the product or products that fall within the new
category, and the category will be added to the Register of Designated
Categories with a provisional status. The provisional category
requirements 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 of at least 30 percent or within 30 percentage points of the
provisional minimum, whichever is higher, will be considered for
inclusion. The Agency believes this provision will prevent products
from being excluded from participation if the provisional category
requirements are too restrictive initially. Under the revised category

[[Page 4776]]

designation procedure, there will no longer be a proposed rule with a
public comment period to introduce new Designated Product Categories as
described in Sec. 3201.5(a)(3).
After the provisional period is over, the Agency will re-evaluate
the provisional category name, description, and required minimum
Biobased Content based on the new data gathered during the provisional
period. At that time, the Agency will make final the Defined Product
Category name, description, and minimum Biobased Content, and the
category will no longer be considered provisional. While the Agency
encourages Procuring Agencies to begin giving a procurement preference
for Qualified Biobased Products that fall within provisionally
designated categories, the Agency recognizes that Procuring Agencies
may need time to become familiar with the requirements of provisionally
designated categories. Therefore, no later than six months after a
finalized product category is added to the Register of Designated
Categories, Procuring Agencies will be required to give a procurement
preference for Qualified Biobased Products that fall within Designated
Product Categories. In total, Procuring Agencies have a period of one
year from the time a provisionally designated category is added to the
Register of Designated Categories to the time they are required to give
procurement preference to products that fall within that category,
which is consistent with the period of time allowed before a Designated
Product Category became effective under Sec. 3201.5(a)(3).
ii. Revising defined product categories on the Register of
Designated Categories. In this proposed rule, the Agency is also
establishing a process for revising Designated Product Categories. The
Agency will periodically evaluate the need to update Designated Product
Categories included in the Register of Designated Categories by
reviewing the category names, definitions, required minimum Biobased
Contents, subcategories, and the need for the category or subcategory.
If the data support making updates, the Agency will amend the category
and publish the updated category to the Register of Designated
Categories and Procuring Agencies will be required to give a
procurement preference for Qualified Biobased Products that fall within
the amended Designated Product Category within six months.
2. Public Comments. This is a new section created using some of the
language from Sec. 3201.5(a)(3). Interested parties (such as product
manufacturers or industry and Federal Stakeholders) may submit comments
to the Agency through the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>) regarding establishing new categories or amending
an existing category at any time. BioPreferred Program Stakeholders and
other interested parties provide valuable insight and data during the
category designation process, and as such, the Agency believes it is
important to maintain a process through which interested parties can
provide comments to the Agency.
3. Continued eligibility. The rule establishes this section as
Continued eligibility. As in Sec. 3202.5(d)(2)(iii), if the required
minimum Biobased Content for a category is revised, products that fall
within the category will remain certified or qualified, as applicable,
as long as the product meets the new minimum Biobased Content level. In
some cases, a participant may need to reformulate a product if the
participant wishes to continue participating in the BioPreferred
Program and the product no longer meets the applicable required minimum
Biobased Content. The Agency believes it is important to allow
participants with such products adequate time to be able to address
potential product changes after the Agency has notified them that a
change is required to remain eligible. If a product no longer meets the
minimum Biobased Content after a category revision, the Agency will
notify the Participating Organization in writing via email. The
Participating Organization will then have 120 days to notify the Agency
of their intent to reformulate their product to meet the requirements,
and then the participant will be allowed another 120 days, increased
from 60 days in Sec. 3202.5(d)(2)(iii), to reapply for certification.
The Agency believes this timeframe is more reasonable as a participant
may need to reformulate a product.
Participating Organizations that reapply for certification as
instructed will be allowed to continue using their existing Label until
they receive the new notice of certification from the Agency. The
Agency is clarifying in this proposed rule that that the certification
for products that no longer meet the required minimum will expire if
the participant does not notify the Agency of their intent to
reformulate within 120 days or if the participant does not reapply for
certification within an additional 120 days. The Agency believes this
addition is necessary to clarify the consequences of no action when a
participant is informed that their product no longer meets the required
minimum Biobased Content.
b. Considerations. This rulemaking uses the language from Sec.
3201.5(b)(1) and (2) with no significant revisions.

G. Section 4270.7 Determining Biobased Content

a. Certification requirements. In this rulemaking, the language
from Sec. 3201.7(a) was used with some modifications. As discussed in
section IV.D, under part 3202 the Agency has established a well-defined
process through which Participating Organizations demonstrate that
their products meet the certification requirements. The process
includes submitting an application for certification to the Agency so
that the Agency can determine if the certification requirements are
met, whereas under Sec. 3201.7(a), Participating Organizations self-
certify that the requirements are met. Based on feedback from
BioPreferred Program Stakeholders, the Agency believes there is more
transparency in having the Agency verify that the certification
requirements are met than allowing Participating Organizations to self-
certify, and therefore is adding language to indicate that an
application for certification must be submitted. The Agency is also
modifying the language from Sec. 3201.7(a) to clarify that meeting the
requirements for a Designated Product Category means the product must
meet both the category's definition and minimum Biobased Content
requirements.
b. Minimum Biobased Content. The language from Sec. 3201.7(b) was
used with no significant modifications.
c. Determining Biobased Content. The language from Sec. 3201.7(c)
was used with no significant modifications.
1. General. The language from Sec. 3201.7(c)(1) was used with
minimal modifications. The name of this section was ``Biobased
products, Intermediate Ingredients or Feedstocks'' but is being revised
to ``General.''
The Agency deliberated adopting other methods for measuring or
determining Biobased Content (such as measuring organic and inorganic
carbon or biomass content) other than through the ASTM D6866 test
method, which has been used by the Agency to measure Biobased Content
since the inception of the BioPreferred Program. The Agency believes
the ASTM D6866 test method for measuring Biobased Content is still the
best method for the purposes of the BioPreferred Program.
2. Complex assemblies. From Sec. 3201.7(c)(3), Complex Assembly
products only had one option for

[[Page 4777]]

manufacturers to test the Biobased Content of the product. This rule
provides two options for manufacturers, which is by equation or
proportional sampling.
i. Equation. The language from Sec. 3201.7(c)(3) was used with no
changes.
ii. Proportional sampling. This rulemaking is adding a second
option for measuring the Biobased Content of a Complex Assembly product
by using proportional sampling. For proportional sampling, the
manufacturer must sub-sample (by weight) each distinct material or
component within the Complex Assembly product and combine the sub-
samples into a single sample that can be analyzed using the ASTM D6866
test method. This method allows for a single ASTM D6866 analysis of a
composite sample that is representative of the full Complex Assembly
product. For example, if a Complex Assembly product is composed of
three distinct components: component A weighing 50 grams, component B
weighing 30 grams, and component C weighing 20 grams. The product can
be sub-sampled to obtain a single 20-gram composite sample suitable for
analysis by combining 10 grams of component A, 6 grams of component B,
and 4 grams of component C. The Agency added this provision to this
proposed rule to mirror the options that are included in the ASTM D6866
test method, which is the method the BioPreferred Program uses to
measure Biobased Content. Additionally, the Agency believes adding this
option to the rule will clarify for manufacturers that this option for
testing Complex Assembly products is acceptable for certification.
d. Products and Intermediate Ingredients or Feedstocks with the
same formulation. The language from Sec. 3201.7(d) was used but
modified to clarify the situations in which products that have
essentially the same formulation and Biobased Content may be eligible
to share Biobased Content test data. The Agency currently allows such
products to share Biobased Content test data through test exemption or
through family applications, whichever is applicable as described
below, and the Agency believes adding this to the BioPreferred
Program's regulation will help prospective participants understand when
additional Biobased Content Testing is not needed. This change simply
ratifies and clarifies the Agency's existing policies for such
products.
1. Test Exemptions. This rulemaking is adding this as a new
section. In some cases, products and Intermediate Ingredients may have
essentially the same formulation but are marketed under more than one
brand name. In these cases, Biobased Content data may be shared between
the products. In situations where a new product for an interested party
is seeking certification 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 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 product. This
allows the interested party to certify their product without having the
product tested again. For example, Company A has received certification
for a hand wash product that is sold both as a consumer product and is
sold to Company B, who rebrands the product to sell to consumers.
Company B may apply to certify their branded product through test
exemption and referencing Company A's Certified Application.
2. Families. This rulemaking is adding this as a new section. 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 under more than one
brand name, the products may share testing information by being grouped
in a family. Biobased Content test data must only be obtained for one
of the products within the family, and test data will apply to all
products within the family. For example, Company A makes a formulation
that they sell as a glass cleaner under one brand name and as an all-
purpose cleaner under a second brand name. Company A may group these
two products in a family; either the glass cleaner or the all-purpose
cleaner will undergo Biobased Content Testing, and the test results
will apply to both products within the family.

H. Section 4270.8 [Reserved]

This rulemaking is adding this as a new reserved section to
accommodate additional requirements that may be included in future Farm
Bills.

I. Section 4270.9 Initial Approval Process

In this proposed rule, the Agency is making process improvements
and updates to the initial approval process to create one expedited
process through which products may be determined to be eligible for a
Federal procurement preference and approved to use the Label. The
approval process will be the same for all products regardless of
whether the applicant wishes for the product to be eligible for a
Federal procurement preference, approved to use the Label, or both.
This means that organizations who wish to have their Biobased Products
participate in the BioPreferred Program must submit an application for
certification for each product, and each product will be required to
undergo Biobased Content Testing to confirm the product's Biobased
Content.
This proposed rule establishes the approval process by using the
approval process that was established in Sec. 3202.5 with some minor
improvements for clarification. The Agency believes this is the best
process to implement for the combined BioPreferred Program rules
because Participating Organizations are already familiar with it, and
the Agency has been able to simplify and streamline the process over
the past several years of implementation.
a. Application. The proposed rule uses the language from Sec.
3202.5(a) with some minor modifications. The Agency acknowledges that
Biobased Products that meet the eligibility criteria as previously
described will be considered qualified for preferred Federal
procurement regardless of the product's certification status. However,
products will not be listed on the BioPreferred Program website
(<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>) as certified or qualified products
unless the product has completed the application process. The Agency
believes requiring all products to undergo Biobased Content Testing is
reasonable as participation in the BioPreferred Program is voluntary.
1. General content. The information being asked for as part of the
initial approval process in this proposed rule is the same information
that was previously asked for in Sec. 3202.5(a)(1), with minimal
modifications and some additional information.
In this proposed rule, the Agency added language to clarify that
the contact information provided must include the name, mailing
address, email address, and telephone number of the applicant. This
information is already included in the current application process, and
the Agency is promulgating it in the rule with this added language.
The Agency is requesting that applicants provide the biobased
source(s) of the raw materials used in the product. This is due, in
part, to the correction factors used by ASTM D6866 to account for the
differing exposure to atmospheric carbon-14 during the biobased raw
material's growth. Without the requested information, the product's
Biobased Content cannot be accurately

[[Page 4778]]

measured. The Agency believes it is reasonable to request biobased raw
material information as applicants will not be required to disclose any
specific Ingredient or formulation information, and the biobased raw
material information the Agency gathers will not be made available to
the public. Applicants may choose not to disclose biobased raw material
information if they are uncomfortable doing so; however, the Agency
notes that it is in the interest of the applicant to disclose biobased
raw material information so that the test results are as accurate as
possible.
The Agency is also requesting that the applicants provide the
estimated Biobased Content of the product, which is used to
preliminarily determine whether the product meets the applicable
Biobased Content requirements. This information is currently requested
during the application process, and the Agency is promulgating it in
the rule with this added language.
The Agency is requesting that the applicant provide a web link to
their website (if available). The Agency uses web links provided by the
applicant to confirm the information in their application, allowing the
Agency to make more informed decisions about the appropriate product
category or categories the product will fall under. This information is
currently requested during the application process, and the Agency is
promulgating it in the rule with this added language.
2. Commitments. This proposed rule combines the language from Sec.
3202.5(a)(2) and (3) with no significant modifications to create this
section.
b. Evaluation of applications.
1. Initial evaluation. This proposed rule is establishing this
section as initial evaluation. As previously described under Sec.
3202.5(b)(1), the Agency will evaluate each application to determine if
it is a complete application (i.e., that it contains all the required
information). Applications will be evaluated on a first come first
served basis. In this proposed rule, the Agency is making updates to
note that the evaluation process may take up to 90 days to complete. If
after evaluating the application the Agency determines the application
is incomplete, it will contact the applicant via email and provide an
explanation of the deficiencies in the application, as is consistent
with Sec. 3202.5(b)(1). In this proposed rule, the Agency is
clarifying that if no response is received within 90 days after the
Agency attempts to ask the applicant clarifying questions about their
application, the Agency will inactivate the application. The Agency
currently follows this procedure as a working policy, and the Agency
believes codifying this practice in the BioPreferred Program's rule may
encourage more applicants to respond in a timely manner.
2. Prequalification. This rulemaking is establishing this section
as Prequalification.
i. When the Agency determines that an application is complete, it
will provide a written response to inform the applicant of whether the
application has been conditionally approved (i.e., prequalified) to
move forward to testing or has been disapproved. Depending on the
responsiveness of the applicant, the Agency will provide the written
response to notify the applicant of approval or disapproval within 90
days after the receipt of a complete application. If at any time after
the Agency notifies the applicant that the application has been
conditionally approved any of the information provided in the
application changes, the applicant is required to inform the Agency of
the change.
Under Sec. 3202.5(b)(2)(i), the Agency estimated that it could
take up to 60 days to complete the evaluation process. However, the
Agency believes it is reasonable to increase the amount of time to 90
days for the evaluation process because the number of applications the
BioPreferred Program receives has been steadily increasing over the
past several years. Additionally, the Agency anticipates that the
number of applications it receives may increase slightly because this
proposed rule will require all interested parties to submit an
application regardless of whether they are interested in preferred
Federal procurement or certification to display the Label.
ii. The Agency is also making updates to the application evaluation
process in the rule to clarify at what point in the process Biobased
Content Testing occurs. In this proposed rule, the Agency is adding
that applications that have been conditionally approved, or
prequalified, may move on to Biobased Content Testing. Test results
that are obtained prior to the application being conditionally approved
or obtained in a manner that does not comply with the rules established
by this proposed rule will not be accepted. Previously, it was not
clearly stated in the rule whether applicants were permitted to test at
any point during the application process, or if applicants were
required to wait until a specific step. The Agency believes that by
specifically listing this step in the rule, it will cut down on the
number of organizations who mistakenly send in their product for
Biobased Content Testing prior to being approved to do so by the
Agency.
iii. As under Sec. 3202.5(b)(2)(ii), the Agency will issue a
notice of certification before the use of the USDA Certified Biobased
Product Label can begin. This section was updated to clarify that if
the Biobased Content Testing shows that the product meets or exceeds
the Applicable Minimum Biobased Content requirements, the Agency will
issue a notice of certification.
iv. This section uses the language from Sec. 3202.5(b)(2)(iii)
with no significant modifications.
c. Notice of Certification. The process for issuing notices of
certification or denial is unchanged from the legacy rules in this
proposed rule. The Agency will issue a notice of certification to the
applicant after it confirms that the test results document an
acceptable Biobased Content. A notice of certification must be issued
before the use of the Label can begin, and at that point, the applicant
may advertise that the product is a Certified Biobased Product. The
notice of certification will include the date the certification was
issued, name of the product or products (in the case of product
families) covered by the certification, and certified Biobased Content
of the product(s).
1. The Agency has clarified in this proposed rule that if at any
time, during the application process or after a product has been
certified, any of the information provided during the initial
application process changes, the applicant must notify the Agency of
the change within 30 days. This is the same as in Sec. 3202.5(c)(5);
however, in this proposed rule, the Agency is emphasizing this
requirement by adding that failure to notify the Agency of any changes
may be considered a violation of BioPreferred Program rules. It is
vital to the credibility of the BioPreferred Program that applicants
provide updates to the Agency whenever they occur. If after reviewing
the test results, the Agency determines that the product does not meet
the Applicable Minimum Biobased Content requirements, the Agency will
issue a notice of denial of certification and will inform the applicant
of each criterion not met.
2. After receiving a notice of certification, the applicant may
request to display a Biobased Content percentage that is lower than the
content measured by the ASTM D6866 test results, as long as the
requested Biobased Content to be displayed is still at or above the
applicable required minimum Biobased Content. The applicant must submit
such requests to

[[Page 4779]]

the Agency in writing via email. The Agency will review the request,
and if approved, notify the applicant in writing via email and issue a
revised notice of certification that will include the requested
Biobased Content. The Agency currently follows this procedure as a
working policy.
3. This proposed rule uses language from Sec. 3202.5(b)(2)(iii)
with minimal modifications to clarify that a denial of certification
will be issued after Biobased Content Testing has occurred if the test
results show the product does not meet the Applicable Minimum Biobased
Content requirement.
d. Term of Certification.
1. General. This proposed rule uses language from Sec.
3202.5(d)(1) with modifications. This rulemaking establishes this
section as General.
After evaluating the term of certification and the audit practices
implemented by Sec. 3202.10(d), the Agency determined the best way to
improve the existing audit procedures was to greatly simplify them. In
lieu of establishing a revised audit procedure for periodically
retesting Certified Biobased Products, the Agency is updating the term
of certification for products participating in the BioPreferred
Program. Previously, the audit procedure called for the retesting of
products that had been certified for more than five years during audits
that were scheduled to take place every six years. Instead, in the
proposed rule, the Agency is implementing a term of certification of
five years for all Certified Biobased Products, except in special cases
as discussed below, after which time, participants will be required to
renew their certification. Certifications will automatically expire for
participants that do not renew their certification following the newly
established process. The effective (beginning) date of the product
certification is the date noted in the notice of certification. Based
on feedback the Agency has received from BioPreferred Program
participants over the years of implementing the BioPreferred Program,
the Agency believes five years is a reasonable amount of time for a
term of certification. The applicant will be notified 90 days before
the certification expires, at which time, the Certified Biobased
Product must be retested in accordance with the procedure described in
section IV.G of this preamble.
i. Because of these updates to the term of certification, this
proposed rule includes new provisions for what happens if a product's
certification is not renewed within the timeframe allowed. If the
Certified Biobased Product is not retested and the certification is not
renewed within the 90 days, the product certification will expire. Once
a product's certification expires, the product will no longer be a
Certified Biobased Product, and the product information will be removed
from the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
Because certifications that are not renewed would automatically expire,
it will not be necessary for the Agency to revoke certifications for
products that do not participate in audits.
ii. Similarly, due to the updates to the term of certification,
this proposed rule includes new provisions for what happens if a
Participating Organization wishes to renew certification for a product
whose certification has lapsed. If a Participating Organization whose
product certification has expired wishes to renew the certification,
the participant must follow the procedures required for initial
certification. These provisions are consistent with the conditions for
reinstating certification as described by Sec. 3202.8(c)(2)(iii).
iii. This proposed rule uses language from Sec. 3202.5(d)(2)(iv)
with minimal modifications.
iv. This proposed rule uses language from Sec. 3202.5(d)(2)(v)
with minimal modifications.
2. Reformulations. This proposed rule includes provisions for the
term of certification of Certified Biobased Products that are
reformulated. If at any time during the term of certification a
Certified Biobased Product is reformulated, the Participating
Organization must notify the Agency of the change and how the change
affects the Certified Biobased Product's Biobased Content. The Agency
will evaluate the changes and inform the participant if retesting is
required. This is very similar to Sec. 3202.5(d)(2)(i) through (iii);
however, it was previously unclear whether participants were required
to inform the Agency of all formulation changes or only changes that
result in the Biobased Content of the Certified Biobased Product being
reduced to a level below that reported in the Certified Application.
The Agency believes the proposed determination about whether a
formulation change will require retesting should be made by the Agency.
i. The proposed rule uses the language from Sec. 3202.5(d)(2)(i)
with minimal modifications for this section. The original language
referred to changes to the product formulation. This proposed rule
refers to changes to the product formulation as well as to raw
materials. This language was added to clarify that changes to the raw
materials are considered changes to the product formulation.
ii. The proposed rule is using the language from Sec.
3202.5(d)(2)(ii) with minimal modifications for this section. The
original language only considered changes to the product formulation
that resulted in the Biobased Content of the product increasing from
the level reported in the Certified Application. The proposed rule also
includes ``and the raw materials are not significantly changed''
because it was previously unclear if changes to the raw materials were
considered to be a change to the product formulation. The Agency
believes this added language will clarify these situations.
iii. If the applicable required minimum Biobased Content for a
product to participate in the BioPreferred Program is revised by USDA,
this proposed rule directs the Participating Organizations to follow
the requirements specified in Sec. 4270.6(a)(3) of the proposed rule
(see section IV.Fa.3. of preamble). This is consistent with the
requirements previously set forth in Sec. 3202.5(d)(2)(iii), with
minimal modifications as discussed in section IV.Fa.3. of the preamble.
Because this process is described in an earlier section of the proposed
rule, the Agency is referring to that section rather than repeating the
language.
3. Test Exemptions. Because the Agency is implementing a new five-
year term of certification, it was necessary to also examine the term
of certification for Certified Biobased Products that are certified via
test exemption. Test exempt Certified Biobased Products share the
Biobased Content test results with the parent Certified Biobased
Product. To avoid situations where a test exempt Certified Biobased
Product remains certified after the parent Certified Biobased Product's
certification has expired, the Agency is stipulating that the test
exempt certification will expire at the same time as the Certified
Application of the parent Certified Biobased Product. For example, if a
parent Certified Biobased Product was certified on October 1, 2020, its
certification will expire on October 1, 2025 unless renewed. If a test
exempt application was submitted referencing this parent Certified
Biobased Product on July 1, 2023, the test exempt certification will
still also expire on October 1, 2025. Consequently, this means that
test exempt certifications may be active for less than five years
before expiring.
4. Special Considerations.
i. As previously discussed, the streamlined application process the

[[Page 4780]]

Agency is proposing to implement with this proposed rule will require
participants to submit an application for certification for each
product, and all products will be required to undergo Biobased Content
Testing to confirm the product's Biobased Content. Under Sec. Sec.
3201.7(a) and 3202.5(a), only products that are participating in the
voluntary labeling initiative are required to be associated with an
application for certification and undergo Biobased Content Testing.
Consequently, as previously discussed in section IV.Da.1. of the
preamble, under part 3201 there are products that are participating in
the BioPreferred Program as products that are qualified for preferred
Federal procurement but not certified to use the Label. The Agency
believes these products should be allowed to continue participating in
the BioPreferred Program under the legacy rules during a grace period
while the Participating Organization works to conform to the updated
BioPreferred Program requirements. In this proposed rule, the Agency is
proposing to establish a grace period of three years, during which,
participants with Biobased Products that are qualified but not
certified must provide the Agency with ASTM D6866 test data that has
been obtained within the past five years. Participants who provide the
requested test data to the Agency will be issued a notice of
certification corresponding to each product for which testing data is
submitted. The normal term of certification as discussed above will
then apply.
ii. Participants who do not submit the requested test data to the
Agency within the specified timeframe will be required to submit an
application for certification and have their products tested. If
certification is not completed within three years of publication of
this rule, these Biobased Products will no longer be listed as
Qualified Biobased Products on the BioPreferred Program website
(<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
iii. This proposed rule also includes special considerations for
Certified Biobased Products that have been certified for five or more
years as of [DATE OF PUBLICATION OF THIS FINAL RULE]. For those
Certified Biobased Products, the Agency is also implementing a three-
year grace period for the participant to renew the certification, at
which point, the normal term of certification of five years will apply.
If an application for renewal is not completed within three years, the
product certification will expire. At that time, the product will no
longer be a Certified Biobased Product, and the product information
will be removed from the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>). The Agency's goal is not to prohibit any
Participating Organization from being able to continue to participate
in the BioPreferred Program, and the Agency believes a three-year grace
period will prevent affected participants from not being able to adjust
to the updated rules quickly enough.

J. Section 4270.10 [Reserved]

This proposed rule is adding this as a new reserved section to
accommodate additional requirements that may be included in future Farm
Bills.

K. Section 4270.11 Requirements Associated With Promotional
Certification Materials

a. How participation in the BioPreferred Program can be promoted.
The Agency is establishing this section as ``How participation in the
BioPreferred program can be promoted.'' In addition to establishing
requirements associated with using the Label, the Agency is also
establishing guidelines for using other materials associated with
promoting Certified Biobased Products. One of the Agency's goals in
implementing the BioPreferred Program is to increase public awareness
of Biobased Products. To that end, the Agency believes it is important
for Participating Organizations and their Designated Representatives as
well as Other Entities to utilize the Label and other promotional
certification materials. The Agency also believes it is important to
establish standard guidelines for Participating Organizations and Other
Entities who wish to promote the BioPreferred Program and certified and
Qualified Biobased Products. This is important to maintain the
distinctiveness and recognizability of the Label and other promotional
certification materials. The Agency maintains and regularly updates a
USDA BioPreferred Program Brand and Marketing Guidelines document found
on the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>) that
is intended to be a user-friendly summary and explanation of the
requirements and brand standards set forth in this proposed rule.
Additional clarification on the requirements associated with
promotional certification materials may be provided in the USDA
BioPreferred Program Brand and Marketing Guidelines, which will be made
available to Participating Organizations through the BioPreferred
Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
1. Participating Organizations. This proposed rule uses the
language from Sec. 3202.7(a)(1) with no significant modifications.
2. Other Entities. This proposed rule uses the language from Sec.
3202.7(a)(2)(i) with some clarification. This proposed rule clarifies
that Other Entities who wish to use promotional materials associated
with the BioPreferred Program may do so through a partnership agreement
with the Agency. This is the Agency's current practice, and this
language is being added to the rule to promulgate the practice.
The language from Sec. 3202.7(a)(2)(ii) has been split into three
sections in this rule. In Sec. 4270.11(b)(2)(i) of the proposed rule,
the Agency is revising the language from Sec. 3202.7(a)(2)(ii) to
indicate that Other Entities may use the Certification Icon rather than
the Label. The Label is intended to be used by Participating
Organizations in relation to the specific certification product it
corresponds to, whereas the Certification Icon can be used by Other
Entities in their own catalogs, procurement databases, etc., to
identify Certified Biobased Products. Section 4270.11(b)(2)(ii) and
(iii) of the proposed rule use the remaining language from Sec.
3202.7(a)(2)(ii) with no significant modifications.
b. Correct usage of the USDA Certified Biobased Product Label and
other promotional certification materials.
1. This section uses the language from Sec. 3202.7(b)(1) with no
significant modifications.
2. This section uses the language from Sec. 3202.7(b)(2) with no
significant modifications.
3. This section uses the language from Sec. 3202.7(b)(3) with
minimal modifications. The Agency is modifying the language to clarify
that, when educating the public about the Label, the watermarked sample
version of the Label may be used without reference to a specific
Biobased Product.
4. This section uses the language from Sec. 3202.7(b)(4) with no
significant modifications.
5. This section uses the language from Sec. 3202.7(b)(5) with no
significant modifications.
6. This section uses the language from Sec. 3202.7(b)(6) with
minimal modification. Over the years of implementing the BioPreferred
Program, the Agency has received inquiries regarding whether the Label
may be embossed or stamped onto certified products, and therefore, the
Agency is adding embossing and stamping as examples to this section.
7. This section uses the language from Sec. 3202.7(b)(7) with no
significant modifications.

[[Page 4781]]

c. Incorrect usage of the USDA Certified Biobased Product Label and
other promotional certification materials.
1. This section uses the language from Sec. 3202.7(c)(1) with no
significant modifications.
2. The proposed rule is adding this section to emphasize that the
Label may not be used in a way that does not maintain the integrity of
the Label and the BioPreferred Program.
3. This proposed rule is adding this section to clarify that the
word ``BioPreferred'' must not be used as a descriptor for anything
other than the BioPreferred 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 Biobased
Products may not be referenced as being ``BioPreferred products''. The
word ``BioPreferred'' is trademarked by the Agency, and as such, its
use is closely controlled. The Agency believes this addition will help
reduce misuse of the word ``BioPreferred''.
4. This section uses the language from Sec. 3202.7(c)(2) with no
significant modifications.
5. This section uses the language from Sec. 3202.7(c)(3), with
additional language to clarify that the BioPreferred Program name, in
addition to the Label, may not be used to imply endorsement by the
Agency.
6. This section uses the language from Sec. 3202.7(c)(4), with
additional language to clarify that the BioPreferred Program name, in
addition to the Label, may not be used in any form that could be
misleading to the consumer.
7. This section uses the language from Sec. 3202.7(c)(5), with
additional language to clarify that the BioPreferred Program name, in
addition to the Label, may not be used in a manner disparaging to the
Agency or any other government body.
8. This section uses the language from Sec. 3202.7(c)(6), with
additional language to clarify that the BioPreferred Program name and
the word ``BioPreferred'', in addition to the Label, may not be altered
or incorporated into any other label or logo designs.
9. This section uses the language from Sec. 3202.7(c)(7), with an
additional example to clarify that the Label may not be used in email
signatures.
10. This section uses the language from Sec. 3202.7(c)(8), with
additional language to clarify that the BioPreferred Program name and
the word ``BioPreferred'', in addition to the Label, may not be used in
any company name, logo, product name, service, or website.
11. This section uses the language from Sec. 3202.7(c)(9), with
additional language to clarify that the BioPreferred Program name and
the word ``BioPreferred'', in addition to the Label, may not be used in
a manner that violates any of the applicable requirements in this rule.
d. Imported products. This section uses the language from Sec.
3202.7(d) with no significant modifications.
e. Elements of the USDA Certified Biobased Product Label. This
proposed rule is establishing this section as Elements of the USDA
Certified Biobased Product Label using language from Sec. 3202.7(e)
with no significant modifications.
f. Physical aspects of the USDA Certified Biobased Product Label.
This proposed rule uses language from Sec. 3202.7(f) with some
modification. As in Sec. 3202.7(f), the Agency does not allow the
Label elements to be altered, cut, separated into components, or
distorted in appearance or perspective. In this proposed rule, the
Agency requires one of the two Label versions to be used, depending on
the need of the Participating Organization.
1. This section uses the language from Sec. 3202.7(f)(1) with
minimal modifications. This proposed rule clarifies in this section
that the Label colors to be applied will be stipulated in the USDA
BioPreferred Program Brand and Marketing Guidelines located on the
BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
2. This section uses the language from Sec. 3202.7(f)(3) with no
significant modifications.
g. Placement of the USDA Certified Biobased Product Label. This
proposed rule uses language from Sec. 3202.7(g) with minimal
modification. The Agency is updating language from Sec.
3202.7(g)(3)(i) and (ii) to clarify that the Label may be used anywhere
on an advertising page where all products on the page are Certified
Biobased Products with the same Biobased Content; otherwise, the Label
must be placed in close proximity to its corresponding Certified
Biobased Product to avoid confusion.
h. Minimum size and clear space requirements for the USDA Certified
Biobased Product Label. This proposed rule uses language Sec.
3202.7(h) with no significant modification.
i. Where to obtain copies of the promotional certification
materials. This proposed rule uses language from Sec. 3202.7(i) with
no significant modification.

L. Section 4270.12 Violations of Program Requirements

In this proposed rule, the Agency is simplifying the violations
process that was outlined by Sec. 3202.8. Although the decision to
participate in the BioPreferred Program is voluntary, compliance with
the BioPreferred Program's requirements and specifications is essential
to the success of the BioPreferred Program. In this proposed rule, the
Agency identifies types of violations that may occur and the actions
that such violations may result in, which are the same as defined under
the legacy rules. The Agency is revising and simplifying the actions
taken after violations are identified in this proposed rule. Both the
types of violations being identified, and any penalties associated with
a violation would be applied on a per product basis. If a certification
for a Certified Biobased Product is revoked following the
identification of a violation, the affected organization may file an
appeal as described in section IV.M of this preamble.
a. General. This proposed rule uses the language from Sec.
3202.8(a) with no significant changes.
b. Types of violations. This proposed rule uses the language from
Sec. 3202.8(b) with no significant changes.
1. Biobased Content violations. This proposed rule uses the
language from Sec. 3202.8(b)(1) with some amendments. The intention of
this section was to allow the Agency the ability to request that a
Certified Biobased Product be re-tested at any time in the event
concerns regarding the validity of the Certified Biobased Product's
Biobased Content arise. The language included in Sec. 3202.8(b)(1)
used the phrase ``random testing,'' which could be understood to mean
Certified Biobased Products will be chosen for re-testing at random.
The Agency believes the change in language in this rulemaking will help
clarify that specific Certified Biobased Products may be selected for
re-testing to confirm no violations have occurred.
For Sec. 4270.12(b)(1)(B), the proposed rule uses language from
Sec. 3202.8(b)(1)(ii)(B) with some modification. The Agency is
clarifying in this proposed rule that if the Participating Organization
elects to retest the product in question, the Agency reserves the right
to select the sample that will be submitted for Biobased Content
Testing. Because the Biobased Content Testing taking place under these
circumstances would be the result of violations of BioPreferred Program
rules, the Agency believes this addition will lead to increased

[[Page 4782]]

transparency in the sample selection process, which will allow the
Agency to have greater confidence in the re-testing results.
2. USDA Certified Biobased Product Label violations. This proposed
rule uses language from Sec. 3202.8(b)(2)(i) through (iii) with no
significant modifications.
The Agency is including an additional example of a USDA Certified
Biobased Product Label violation in this proposed rule as Sec.
4270.12(b)(2)(iv) that says using an image or icon other than the
official USDA Certified Biobased Product Label in association with
certification claims constitutes a violation. Over the years of
implementing the BioPreferred Program, the Agency has come across
instances where a manufacturer has used an icon or mark other than the
Label in association with claims that the product is certified through
the BioPreferred Program. Using an image other than the Label cause
consumers to question the validity of the claim, and the Agency
believes it is vital to the success of the BioPreferred Program that
the Label is used correctly and consistently with claims of
certification.
3. Application violations. This proposed rule uses language from
Sec. 3202.8(b)(3) with no significant modifications.
4. BioPreferred Program website violations. This proposed rule uses
language from Sec. 3202.8(b)(4) with no significant modifications.
c. Noncompliance and escalation of actions. The violations
described in Sec. 4270.12(b) of the proposed rule are in noncompliance
with this proposed rule. The Agency believes it is necessary to
simplify the process for handling these violations that was established
by Sec. 3202.8(c).
1. Noncompliance. This proposed rule is establishing this section
as Noncompliance. In this proposed rule, the Agency is adding
provisions that allow the Agency to work with the Participating
Organization in violation of Program rules to resolve the violation. In
contrast, under the Sec. 3202.8(c) the Agency was required to issue a
series of formal notices of violation over the course of several months
prior to being able to take action to resolve the violation. Under this
proposed rule, when a violation is identified, the Agency will notify
the Participating Organization or Other Entity, in writing via email,
that they are in noncompliance with the BioPreferred Program's
regulations. In the written notification, the Agency will identify the
violation(s) and any actions that must be taken to resolve the
noncompliance. The Agency may remove the product or company information
from the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>)
until the noncompliance is corrected. Removing the product from the
BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>) without
issuing a notice of violation or revoking product certification allows
the Agency to reinstate the product more easily if/when the participant
does make the necessary updates.
2. Violation. This proposed rule is establishing this section as
Violation. For those violations that may be considered major, or when
Participating Organizations fail to make necessary updates and the
Agency wishes to escalate the consequences, the Agency is maintaining a
formal violation process that ends in revocation of the product's
certification if no action is taken. The Agency is simplifying the
formal violations process established in Sec. 3202.8(c) to a two-step
process. In the first step, the Agency will issue a notice of violation
in writing via email. Participants who receive a notice of violation
must correct the violation within 30 days from receipt of the notice of
violation.
3. Suspension and Revocation. This proposed rule is establishing
this section as Suspension and Revocation. Rather than having two
individual steps for suspension and revocation, as is the case in Sec.
3202.8(c)(1) and (2), respectively, this proposed rule combines
suspension and revocation activities into a single step. Through the
years of implementing the BioPreferred Program, the Agency has found
that having a multi-step, protracted process for suspending and
revoking certification often reduces the likelihood that a participant
will respond or resolve the violation because deadlines are forgotten
or communications are missed. The Agency believes streamlining the
suspension and revocation process into a single communication will help
create a sense of urgency on the part of participants who wish to
resolve the identified violation, and it will reduce the Agency's
burden of completing the revocation process in cases where the
participant is not incentivized to resolve the identified violation.
Similar to the process formerly described by Sec. 3202.8(c)(1)(i),
after receiving the notice of violation, if the participant fails to
make the required corrections within 30 days, the Agency will take a
second step by notifying the participant via email and certified mail,
as appropriate, of the continuing violation, and the certification for
that product will be suspended. Under Sec. 3202.8(c)(1)(i),
participants were given 90 days to respond to a notice of suspension;
the Agency is shortening this to 30 days in this proposed rule because
the Agency intends to use the noncompliance step (rather than the
suspension and revocation step) to attempt to resolve the issue with
the participant. The Agency has found that having an extended timeframe
at the suspension step reduces the likelihood that the violation will
be resolved because so much time passes between official
communications, and the Agency believes 30 days is a more appropriate
timeframe. Additionally, the Agency has updated this process to
stipulate that the notice of suspension and revocation will be sent via
certified mail, as appropriate, so that the Agency can be sure that the
notice is received by the participant. The Agency will make every
effort to send notices of suspension and revocation to valid contacts,
but ultimately, it is up to the Participating Organization to update
the Agency when their contact information changes.
As in Sec. 3202.8(c)(1)(i), this proposed rule states that as of
the date the participant receives the notice suspending product
certification, the participant and any Designated Representatives must
discontinue printing any product labels that include the Label. When
the Agency suspends a product's certification, the Agency will remove
the product from the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
This proposed rule uses language from Sec. 3202.8(c)(1)(ii) with
no significant modifications.
The language from Sec. 3202.8(c)(2)(i) and (ii) are being combined
in this proposed rule into Sec. 4270.12(c)(3)(iii). For the reasons
previously stated, under this proposed rule, participants will be
notified of suspension and revocation through a single notice. If the
participant fails to correct the violation within 30 days from receipt
of the notice of suspension, the certification for that product will be
revoked automatically. As of that date, the product will no longer be
listed on the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>) as a Certified Biobased Product or as a product
qualified for preferred Federal procurement, and the participant must
discontinue printing any product labels that include the Label, as is
the case under Sec. 3202.8(c)(2)(ii). The participant may continue to
sell any current stock of the product that already includes the Label.
After that stock has been

[[Page 4783]]

depleted, the participant must discontinue use of the Label.
This proposed rule uses language from Sec. 3202.8(c)(2)(iii) with
no significant modification.
4. Other remedies. This proposed rule uses language from Sec.
3202.8(c)(3) with no significant modification.

M. Section 4270.13 Appeal Process

This proposed rule includes provisions for appeal to the Agency by
a Participating Organization that has received a notice of suspension
and revocation from the Agency. Under Sec. 3202.6, a Participating
Organization could appeal to the Agency a decision made at any point in
the certification process. In this proposed rule, the Agency is
limiting the decisions Participating Organizations may appeal to
revocations of certification only because the Agency makes every effort
to resolve any issues or questions that arise during the application
process up to and after product certification through direct
communication with the Participating Organization. Thus, the Agency
believes it is not necessary to have a formal appeal process for any
decisions other than revocations of certification.
a. Filing an appeal. This proposed rule establishes this section as
Filing an appeal.
1. This section uses the language from Sec. 3202.6(a)(1) with
modifications. Section 3202.6(a)(1) stated that the appeals go to the
Program Manager, but this proposed rule modifies this by having the
appeals go to the Agency The Agency is making this change so that the
appeal review process is not tied to a single individual or a single
job title. The Agency believes this change will allow appeals to be
processed efficiently regardless of whether a specific job title is
used. Section 3202.6(a)(1) also instructed appeals to be filed in
writing and provided a mailing address to the Program Manager of USDA
Voluntary Labeling Program for Biobased Products, but this rulemaking
modifies this by requiring that appeals be made in writing via email to
the BioPreferred Program's email address as noted on the BioPreferred
Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>). The Agency believes
this change will allow for appeals to be reviewed more efficiently as
physical mail may be delayed or lost.
2. This proposed rule uses the language from Sec. 3202.6(a)(2)
with no modifications.
b. Reviewing appeals. This rulemaking establishes this section as
Reviewing appeals.
1. This section uses the language from Sec. 3202.6(b)(3) with
modifications. Modifications include revising some of the language to
align with the new rule definitions for Participating Organization,
participant, and USDA Certified Biobased Product Label, as well as
revising references to the ``notice of suspension'' to the ``notice of
suspension and revocation'' due to the changes discussed in section
IV.L3.). Additionally, this proposed rule clarifies that if the appeal
is sustained, the Participating Organization may immediately resume
selling and distributing the Certified Biobased Product with the Label
in addition to immediately resuming affixing the Label to the Certified
Biobased Product. This was language added to make it clear for
participants whose appeal is granted when they may resume selling the
product in question.
2. If the Agency denies a participant's appeal, then the notice of
suspension and revocation stands. This is the current practice when an
appeal is denied, and the Agency is promulgating this practice by
adding it to this proposed rule.
c. Appeals of decisions made on appeals. This proposed rule
establishes this section as Appeals of decisions made on appeals. The
proposed rule uses the language from Sec. 3202.6(d) with
modifications. The proposed rule instructs the appellant to address
their appeals to the USDA Rural Business Cooperative Service
Administrator instead of the Assistant Secretary for Administration.
This change was made because the BioPreferred Program is now housed
under the Rural Development Rural Business Cooperative Service mission
area rather than under Departmental Management. Also, in this section
the term Program Manager was changed to USDA so that the appeal review
process is not tied to a single individual or a single job title.

N. Section 4270.14 Reporting and Recordkeeping

In this proposed rule, the Agency combines Sec. Sec. 3201.6,
3201.8, and 3202.9 into one section and is making minimal
modifications. The Agency recognizes that Participating Organizations
may consider some of the information requested for reporting and
recordkeeping to be confidential. The Agency notes that information
claimed as confidential by the participant will not be released and
that individual participant data will not be reported. Only summary
information regarding the benefits and impacts of the entire Program
will be released.
a. Providing product information to Federal agencies. This proposed
rule establishes this section as Providing product information to
Federal agencies.
1. Informational website. This proposed rule uses language from
Sec. 3201.6(a) with no significant modifications.
i. Product information. This proposed rule uses language from Sec.
3201.6(a)(1) with no significant modifications.
ii. Providing information on price and environmental and health
benefits. This proposed rule uses language from Sec. 3201.8(a) with no
significant modifications.
iii. Industry standards test information. In this proposed rule,
the Agency is clarifying that relevant industry standard test
information is included in the product information supplied by the
participant. Otherwise, this proposed rule uses language from Sec.
3201.8(b) with no significant modifications.
iv. Biodegradability information. This proposed rule uses language
from Sec. 3201.8(c). In this proposed rule, the Agency is including an
additional ASTM Biodegradability standard, ASTM D5988 (Standard Test
Method for Determining Aerobic Biodegradation of Plastic Materials in
Soil), to make the list of Biodegradability standards more complete.
2. Advertising, labeling, and marketing claims. This proposed rule
uses language from Sec. 3201.6(b) with no significant modifications.
b. Records. This proposed rule uses language from Sec. 3202.9(a)
with no significant modifications.
1. This proposed rule uses language from Sec. 3202.9(a)(1) with no
significant modifications.
2. This proposed rule uses language from Sec. 3202.9(a)(2) with
some modifications. The Agency is clarifying in this proposed rule that
Participating Organizations must maintain record of the notice of
certification for each Certified Biobased Product, not just the date of
certification. Maintaining record of the notice of certification helps
the Agency efficiently review and resolve any disputes that arise
regarding the validity of a certification or the term of certification
for a specific Certified Biobased Product.
3. This proposed rule uses language from Sec. 3202.9(a)(3) with no
significant modifications.
c. Record retention. This proposed rule uses language from Sec.
3202.9(b) with no significant modifications.

O. Section 4270.15 Oversight and Monitoring

a. General. The proposed rule uses the language from Sec.
3202.10(a) with no significant modifications.

[[Page 4784]]

b. Biobased Content Testing. The proposed rule uses the language
from Sec. 3202.10(b) with no significant modifications.
c. Inspection of records. The proposed rule uses the language from
Sec. 3202.10(c) with no significant modifications.
d. Audits. The Agency has determined the need to simplify the
BioPreferred Program's audit procedure established under Sec.
3202.10(d). The audit procedures in Sec. 3202.10(d) involved three
stages that were scheduled to take place every other calendar year (bi-
annually). The first stage (Sec. 3202.10(d)(1)) required Participating
Organizations to confirm that their product and company information
remains unchanged. The second stage (Sec. 3202.10(d)(2)) involved a
random sampling of Certified Biobased Products to confirm the accuracy
of the Biobased Content percentages claimed. The third stage (Sec.
3202.10(d)(3)) required manufacturers of Certified Biobased Products
that have been certified for five years or more to have their products
retested at their expense to confirm that the certified Biobased
Content remains valid.
In this proposed rule, the Agency has simplified the audit process
by eliminating the second stage audits. Instead, the Agency will
reserve the right to request that a Certified Biobased Product undergo
testing to confirm the Certified Biobased Product's certified Biobased
Content at any time. The Agency believes it is unnecessary to have a
dedicated audit for this type of confirmation testing as the Agency
does not anticipate this to occur frequently. Similarly, the Agency is
eliminating the third stage audit in favor of implementing a limited
term of certification for Certified Biobased Products. Finally, the
Agency is updating the first stage audit (now called an annual desk
audit) so that it will occur annually. During this annual desk audit,
the Agency will require Participating Organizations to verify that
their company, contact, and product information supplied during the
application process remain valid. Audit activities will take place
through the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>). Given that Participating Organizations are
required to update the Agency of product and contact updates when they
occur, annual desk audits should take very little time for
Participating Organizations to complete, as Participating Organizations
will simply be asked to confirm that their product and contact
information is up to date. The Agency believes it is necessary to have
such an audit annually for two reasons. First, it helps maintain the
credibility of the BioPreferred Program by ensuring the product
information included on the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>) is current and accurate. Second, it helps ensure
that Participating Organizations keep the Agency updated when a change
of contact occurs.
Participating Organizations may be asked to provide additional
supplemental information during annual audits. If during an annual desk
audit, a participant indicates that their product or company
information needs to be updated, these updates will be incorporated
into the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
If it is indicated that a product is no longer manufactured, the
product will be removed from the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>). Participating Organizations that fail to
complete an annual desk audit will be in noncompliance with the
requirements set forth in this new proposed rule, and the Participating
Organization and associated product information will be removed from
the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>). The
Agency reserves the right to revoke product certification as a result
of failing to participate in an audit.

P. Section 4270.99 OMB Control Number

The Office of Management and Budget (OMB) Control numbers for the
legacy rules are as follows: 0570-0071 (part 3202) and 0570-0073 (part
3201). These existing OMB Control Numbers will be discontinued and a
new OMB Control Number will be obtained for part 4270.

V. Executive Orders/Acts

A. Executive Order 12866--Classification

This rulemaking 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

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
chapter 35, as amended), the Agency invites comments on this
information collection for which it intends to request approval from
OMB.
Comments on this document must be received by March 25, 2024.
Comments are invited on (a) whether the collection of information
is necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility; (b) the
accuracy of the agency's estimate of burden including the validity of
the methodology and assumption used; (c) ways to enhance the quality,
utility and clarity of the information to be collected; and (d) ways to
minimize the burden of the collection of information on those who are
to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques on
other forms of information technology.
Comments may be submitted by going to the Federal eRulemaking
Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and in the ``Search
Documents'' box, enter the Docket Number or the RIN provided above in
this document, and click the ``Search'' button.
Title: 7 CFR part 4270.
OMB Control Number: 0570-NEW.
Abstract: The BioPreferred Program was established by section 9002
of FSRIA. The BioPreferred Program will establish guidelines for (1)
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; (2) establishing 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) establish 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) establish actions for noncompliance.
The information required for the BioPreferred Program is similar to
much of the information currently being required under the legacy
rules. Under the legacy rules, the current information being collected
is approved under OMB Control numbers 0570-0071 (part 3202) and 0570-
0073 (part 3201). This regulation combines the legacy rules into one
regulation and streamlines the requirements. The following estimates
are based on the average over the first 3 years the Program is in
place.

[[Page 4785]]

Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 10.3234 hours per response.
Respondents: Private entities.
Estimated Number of Respondents: 520.
Estimated Number of Responses per Respondent: 2.0096.
Estimated Total Annual Burden on Respondents: 10,788.
Copies of this information collection may be obtained from
Katherine Anne Mathis, Regulatory Management Division, Rural
Development Innovation Center, U.S. Department of Agriculture, 1400
Independence Ave. SW, Stop 0793, Washington, DC 20250; telephone: 202-
713-7565; email: <a href="/cdn-cgi/l/email-protection#82e9e3f6eae7f0ebece7acefe3f6eaebf1c2f7f1e6e3ace5edf4">[email&#160;protected]</a>. All responses to this
information collection and recordkeeping notice will be summarized and
included in the request for OMB approval. All comments also become a
matter of public record.

D. National Environmental Policy Act

In accordance with the National Environmental Policy Act of 1969,
Public Law 91-190, this proposed 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 proposed 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
rulemaking 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. Executive Order 12988--Civil Justice Reform

This proposed rule has been reviewed under Executive Order 12988.
In accordance with this rule: (1) unless otherwise specifically
provided, all State and local laws that conflict with this rulemaking
will be preempted; (2) no retroactive effect will be given to this
rulemaking except as specifically prescribed in the 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 rule.

G. 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 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 rule.
This rulemaking 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 rulemaking is
not subject to the requirements of sections 202 and 205 of the UMRA.

H. Executive Order 13132--Federalism

The policies contained in this rulemaking 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
rulemaking impose substantial direct compliance costs on state and
local governments. Therefore, consultation with the States is not
required.

I. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments

This Executive order imposes requirements on RBCS in the
development of regulatory policies that have tribal implications or
preempt tribal laws. RBCS has determined that the rule does not have a
substantial direct effect on one or more Indian tribe(s) or on either
the relationship or the distribution of powers and responsibilities
between the Federal Government and Indian tribes. Thus, this rulemaking
is not subject to the requirements of Executive Order 13175. If tribal
leaders are interested in consulting with RBCS on this rule, they are
encouraged to contact USDA's Office of Tribal Relations or RD's Native
American Coordinator at: <a href="/cdn-cgi/l/email-protection#cf8e868e818fbabcabaee1a8a0b9">[email&#160;protected]</a> to request such a consultation.

J. 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.

K. Civil Rights Impact Analysis

RD has reviewed this rulemaking in accordance with USDA Regulation
4300-4, Civil Rights Impact Analysis, to identify any major civil
rights impacts the 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 rule and all
available data, issuance of this proposed 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 proposed rule.

L. 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,

[[Page 4786]]

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 <a href="https://www.usda.gov/sites/default/files/documents/ad-3027.pdf">https://www.usda.gov/sites/default/files/documents/ad-3027.pdf</a> 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: <a href="/cdn-cgi/l/email-protection#5424263b332635397a3d3a20353f3114212730357a333b22">[email&#160;protected]</a>

List of Subjects in 7 CFR Parts 3201, 3202, and 4270

Biobased products, Business and industry, Government procurement.

For the reasons stated in the preamble, USDA is proposing to amend
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 5 U.S.C. 301 and 7 U.S.C. 8102, remove and
reserve part 3201.

PART 3202 [Removed and Reserved]

0
2. Under the authority of 5 U.S.C. 301 and 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;
(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,
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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).

[[Page 4787]]

[GRAPHIC] [TIFF OMITTED] TP24JA24.000

Figure 1. Certification Icon. (Note: Actual Size Will Vary Depending on
Application)

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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a> ). 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 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 <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>.
Renewable chemical. A monomer, polymer, plastic, formulated
product, or chemical substance produced from renewable biomass.

[[Page 4788]]

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, 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
(<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>). The USDA Certified Biobased Product
Label is owned and its use is managed by USDA (standard trademark law
definition applies).
[GRAPHIC] [TIFF OMITTED] TP24JA24.001

Figure 2: USDA Certified Biobased Product Label (Note: Actual Size Will
Vary Depending on Application)
[GRAPHIC] [TIFF OMITTED] TP24JA24.002

Figure 3: USDA Certified Biobased Package Label (Note: Actual Size Will
Vary Depending on Application)
[GRAPHIC] [TIFF OMITTED] TP24JA24.003

Figure 4: USDA Certified Biobased Product & Package Label (Note: Actual
Size Will Vary Depending on Application)

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 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, which are 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 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 [DATE OF PUBLICATION OF THE FINAL RULE IN
THE FEDERAL REGISTER], the product will remain eligible under the
legacy rules, which can be found on the BioPreferred Program website
(<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>), until the product is reformulated,
discontinued, or until [DATE THREE YEARS AFTER DATE OF PUBLICATION IN
THE FEDERAL REGISTER], whichever comes first. These products must
follow the procedures described in Sec. 4270.9 before [DATE THREE
YEARS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] 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.

[[Page 4789]]

(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 <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>.
(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 <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>, 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 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
(<a href="https://sam.gov">https://sam.gov</a>) 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

[[Page 4790]]

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 <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>. 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
(<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
(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 <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>.
(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.
(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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>). 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 fall within provisionally designated categories and are
required to give a procurement preference for Qualified Biobased
Products that fall 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.

[[Page 4791]]

(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 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.
(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 (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] TP24JA24.004

Where:

M<INF>i</INF> = mass of the nth component
BCC<INF>i</INF> = biobased carbon content of the nth component (%)
OCC<INF>i</INF> = organic carbon content of the nth component (%)

(ii) Proportional sampling. The Biobased Content of a Complex
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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>). The contents of an acceptable application are as
specified in paragraphs (a)(1) and (2) of this section.

[[Page 4792]]

(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
paragraph (a)(1)(i) through (viii) of this section, some of which USDA
will post to the BioPreferred Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>), 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, 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.
(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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
(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

[[Page 4793]]

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 the date of publication of this rule, 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 the date of publication of
this rule 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 [DATE OF PUBLICATION OF THIS FINAL RULE IN THE FEDERAL
REGISTER] 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
(<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>) and will be removed from the
BioPreferred Program's website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
(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 [DATE OF PUBLICATION OF THIS FINAL RULE IN THE FEDERAL
REGISTER]. 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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).

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 guidance on the BioPreferred
Program website (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
(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 who 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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).'' 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.

[[Page 4794]]

(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.
(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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
(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

[[Page 4795]]

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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
(ii) [Reserved]

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.
(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 though
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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>) 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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>) 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
(<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
(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

[[Page 4796]]

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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>) 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 (<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
(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
(<a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>).
(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: <a href="https://www.biopreferred.gov">https://www.biopreferred.gov</a>.
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 t

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