3790 Federal Register / Vol. 76, No. 13 / Thursday, January 20, 2011 / Rules and Regulations 

1The term ‘‘designated item’’ refers to product 

categories (generic groupings of products that 

perform the same function) within which the 

products have been afforded a procurement 

preference by Federal agencies under the 

BioPreferred Program. For example, under the 

designated product category ‘‘mobile equipment 

hydraulic fluid,’’ all brands and grades of hydraulic 

fluid formulated for use in mobile equipment and 

meeting the specified minimum biobased content 

are included in the procurement preference 

program. 

DEPARTMENT OF AGRICULTURE 

7 CFR Part 2904 

RIN 0503–AA35 

Voluntary Labeling Program for 

Biobased Products 

AGENCY: Departmental Management, 

USDA. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of 

Agriculture (USDA) is establishing a 

voluntary labeling program for biobased 

products under section 9002 of the Farm 

Security and Rural Investment Act of 

2002, as amended by the Food, 

Conservation, and Energy Act of 2008. 

Under the voluntary labeling program, a 

biobased product, after being certified 

by USDA, can be marketed using the 

‘‘USDA Certified Biobased Product’’ 

label. The presence of the label will 

mean that the product meets USDA 

standards for the amount of biobased 

content and that the manufacturer or 

vendor has provided relevant 

information on the product for the 

USDA BioPreferred Program Web site. 

This final rule applies to manufacturers 

and vendors who wish to participate in 

the voluntary labeling component of the 

BioPreferred Program. The final rule 

also applies to other entities (e.g., trade 

associations) that wish to use the label 

to promote biobased products. 

DATES: This final rule is effective 

February 22, 2011. 

FOR FURTHER INFORMATION CONTACT: Ron 

Buckhalt, USDA, Office of the Assistant 

Secretary for Administration, Room 361, 

Reporters Building, 300 7th Street, SW., 

Washington, DC 20024; e-mail: 

biopreferred@usda.gov; phone (202) 

205–4008. Information regarding the 

Federal Biobased Products Preferred 

Procurement Program (one part of the 

BioPreferredSM Program) is available on 

the Internet at http:// 

www.biopreferred.gov. 

SUPPLEMENTARY INFORMATION: The 

information presented in this preamble 

is organized as follows: 

I. Authority 

II. Background 

III. Summary of Changes 

IV. Discussion of Public Comments 

V. Regulatory Information 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Regulatory Flexibility Act (RFA) 

C. Executive Order 12630: Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

D. Executive Order 12988: Civil Justice 

Reform 

E. Executive Order 13132: Federalism 

F. Unfunded Mandates Reform Act of 1995 

G. Executive Order 12372: 

Intergovernmental Review of Federal 

Programs 

H. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

I. Paperwork Reduction Act 

J. E-Government Act Compliance 

K. Congressional Review Act 

I. Authority 

Today’s final rule establishes the 

voluntary labeling program for biobased 

products under the authority of section 

9002 of the Farm Security and Rural 

Investment Act of 2002 (FSRIA), as 

amended by the Food, Conservation, 

and Energy Act of 2008 (FCEA), 7 U.S.C. 

8102 (referred to in this document as 

‘‘section 9002’’). 

II. Background 

Overview of Section 9002. Section 

9002 establishes a program for the 

Federal procurement of biobased 

products by Federal agencies and a 

voluntary program for the labeling of 

biobased products. These two programs, 

referred to collectively by USDA as the 

BioPreferred SM Program, are briefly 

discussed below. 

Federal Procurement of Biobased 

Products. Section 9002 requires Federal 

agencies to develop procurement 

programs that give a preference to the 

purchase of biobased products (hereafter 

referred to in this Federal Register 

notice as the ‘‘Federal preferred 

procurement program’’). Federal 

agencies and their contractors are 

required to purchase biobased products, 

as defined in regulations implementing 

the statute, that are within designated 

items 1 when the cumulative purchase 

price of the item(s) to be procured is 

more than $10,000 or when the 

quantities of functionally equivalent 

items purchased over the preceding 

fiscal year equaled $10,000 or more. 

Each Federal agency and contractor 

must procure biobased products at the 

highest content levels within each 

product category unless the agency 

determines that the items are not 

reasonably available, fail to meet 

applicable performance standards, or 

are available only at an unreasonable 

price. 

The final guidelines for the Federal 

preferred procurement program were 

published in the Federal Register on 

January 11, 2005 (70 FR 1792). The 

guidelines are contained in 7 CFR part 

2902, ‘‘Guidelines for Designating 

Biobased Products for Federal 

Procurement.’’ 

Part 2902 is divided into two 

subparts, ‘‘Subpart A—General,’’ and 

‘‘Subpart B—Designated Items.’’ Subpart 

A addresses the purpose and scope of 

the guidelines and their applicability, 

provides guidance on product 

availability and procurement, defines 

terms used in part 2902, and addresses 

affirmative procurement programs and 

USDA funding for testing. Subpart B 

identifies product categories and 

specifies their minimum biobased 

contents, the effective date of the 

procurement preference for biobased 

products within each product category, 

and other information (e.g., 

biodegradability). USDA is responsible 

for designating biobased items at the 

highest practicable biobased content 

levels for the Federal agencies’ preferred 

procurement programs. 

As part of the Federal preferred 

procurement program, section 9002 also 

requires USDA to provide information 

to Federal agencies on the availability, 

relative price, performance, and 

environmental and public health 

benefits of products within such 

product categories and, as applicable 

under section 9002(e)(1)(C), to 

recommend the minimum level of 

biobased content to be contained in the 

products within a product category. 

To date, USDA has identified 50 

product categories in a variety of 

applications, including cafeteria ware, 

personal and institutional cleaning 

products, construction products, and 

lubricants and greases. There are 

presently approximately 5,100 

individual BioPreferred Products 

(products that are within product 

categories that are eligible for Federal 

preferred procurement) within these 50 

product categories. 

Voluntary Labeling Program. Section 

9002 also requires USDA to establish a 

voluntary labeling program under which 

USDA authorizes manufacturers and 

vendors of biobased products to use a 

‘‘USDA Certified Biobased Product’’ 

label (hereafter referred to in this 

preamble as ‘‘the certification mark’’). 

The voluntary labeling program is 

intended to encourage the purchase and 

use of biobased products by reaching 

beyond the Federal purchasing 

community and promoting the purchase 

of biobased products by commercial 


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entities and the general public. In 

establishing this program, USDA must 

identify the criteria to determine those 

products on which the certification 

mark may be used and must develop 

specific requirements for how the mark 

can be used. It is USDA’s intent that the 

presence of the certification mark on a 

product will mean that the labeled 

product is one for which credible 

factual information is available as to the 

biobased content, consistently measured 

across labeled products by use of the 

American Society of Testing and 

Materials (ASTM) radioisotope test 

D6866. 

In developing the voluntary labeling 

program, USDA held discussions with 

other agencies that have implemented 

labeling programs, such as the ‘‘ENERGY 

STAR®’’ program implemented by the 

U.S. Department of Energy and the U.S. 

Environmental Protection Agency 

(EPA). USDA has also consulted with 

representatives of the Department of 

Agriculture’s National Organic Program 

and others of the Agricultural Marketing 

Service. Further, USDA consulted the 

Federal Trade Commission (FTC), 

which issues the ‘‘Guides for the Use of 

Environmental Marketing Claims’’ to 

ensure that the provisions of the 

voluntary labeling program are 

consistent with the Guides. USDA also 

held a public meeting on July 22, 2008, 

to seek input on the content and use of 

the certification mark from the public 

and industry stakeholders. 

As part of the BioPreferred Program, 

on July 31, 2009, USDA published a 

proposed rule for the voluntary labeling 

program for biobased products under 

the authority of section 9002. This 

proposed rule can be found at 74 CFR 

38295. 

The following section of the preamble 

presents a summary of the changes that 

have been made to the rule as a result 

of USDA’s consideration of the 

comments that were received on the 

proposed rule. Section IV presents a 

summary of the public comments 

received on the proposed voluntary 

labeling program and USDA’s responses 

to the comments. 

III. Summary of Changes 

As a result of comments received on 

the proposed rule (section IV), USDA 

made changes to the rule, which are 

summarized below. USDA discusses the 

rationale for these changes in section IV. 

Minimum biobased content. For 

finished biobased products that are not 

within the designated product 

categories and for intermediate 

ingredients or feedstocks that are also 

not within the designated product 

categories, USDA has lowered the 

applicable minimum biobased content 

from the proposed 51 percent to 25 

percent. 

Mature market products. As a result 

of USDA consideration of public 

comments concerning the difficulty of 

implementing case-by-case exemptions, 

USDA has decided to categorically 

exclude mature market products from 

the labeling program at this time. 

Preliminary notice of violations. 

USDA has added a provision to the rule 

to provide manufacturers and vendors 

with a preliminary notice of violation. 

Initial approval process. Based on a 

commenter’s recommendation that 

USDA allow representative biobased 

content testing for products with similar 

biobased contents but slightly different 

formulations, USDA has agreed to allow 

representative content testing to suffice 

if the product’s formulation does not 

vary by more than 3 percent for multiple 

products. 

IV. Discussion of Public Comments 

USDA solicited comments on the 

proposed rule for 60 days ending on 

September 29, 2009. USDA received 

comments from 25 commenters by that 

date. These comments were from 

individuals, manufacturers, and trade 

organizations. 

Who can apply for the certification 

mark? 

Comments: One industry commenter 

states that vendors, especially those 

who sell private-labeled manufactured 

products, should be allowed to apply for 

biobased labeling. An example is a 

product that has been labeled by the 

manufacturer for one purpose; and the 

vendor would like to package it under 

its private label and for a different 

application (e.g., a road dust 

suppressant labeled by the 

manufacturer, could be labeled by a 

vendor as a ‘‘COAL dust control agent’’ 

under the vendor’s private label). The 

latter product may require slight 

modifications by the manufacturer or be 

exactly the same. The vendor would use 

the documentation that the 

manufacturer has established along with 

additional information to apply for 

separate labeling. 

One industry commenter supports 

both manufacturers and vendors being 

eligible to apply for the certification 

mark and stated that this approach 

provides the maximum flexibility for all 

participants. 

One industry organization commenter 

and one industry commenter support 

manufacturers, but not vendors, being 

eligible to apply for the certification 

mark. The commenters state that it is 

the manufacturers who have the 

information on product composition 

(e.g., whether a product meets the 

definition of a biobased product) and 

biobased content (e.g., testing results on 

the formulated product). Having both 

vendors and manufacturers apply will 

result in USDA having to process many 

more applications for no reason. 

Furthermore, it is critical that 

manufacturers maintain control over 

who uses the certification mark on their 

products. Having a proliferation of 

vendors apply for the mark without the 

knowledge of the manufacturer will lead 

to confusion and potential 

misunderstandings. 

One individual commenter does not 

believe it would be a good idea to allow 

vendors to be eligible to obtain the 

certification marks. The commenter 

pointed out that, as noted in the 

proposed rule, it is the manufacturer 

and not the vendor who determines a 

product’s formulation and production 

process. In addition, some 

manufacturers have become very upset 

when finding out that some vendors of 

their products were participating in the 

BioPreferred Program without their 

knowledge. The commenter envisions 

lawsuits arising when allowing vendors 

to apply for labels without documented 

consent from the manufacturer. 

Response: USDA continues to believe 

that the goals of the voluntary labeling 

program can be achieved, and the 

beneficial impacts of the BioPreferred 

Program can be increased, if both 

manufacturers and vendors are allowed 

to market and promote the 

manufacturers’ biobased products with 

a credible biobased product labeling 

program. For example, many vendors 

purchase products from manufacturers 

and then repackage or offer these 

products as private label items. 

Allowing these vendors into the 

program will increase the number of 

biobased products in the market, thus 

furthering the goals of the program. 

Therefore, USDA will allow vendors as 

well as manufacturers to participate in 

the program as long as they meet all 

program requirements. 

Applicable Minimum Biobased Contents 

Comment: One industry commenter 

states that he believes that a minimum 

biobased content of 50 percent should 

be required for products not within 

product categories that have been 

identified for Federal preferred 

procurement. Requiring half or more of 

a product’s content to be biobased will 

bring credibility to the certification 

mark and prevent potential 

‘‘greenwashing’’ by allowing lower 

biobased content product manufacturers 

to advertise the certification mark. 


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3792 Federal Register / Vol. 76, No. 13 / Thursday, January 20, 2011 / Rules and Regulations 

Products containing less than 50 percent 

biobased content can still be identified 

through the BioPreferred designation 

process for Federal preferred 

procurement. 

One industry commenter recommends 

that USDA consider lowering the 

biobased content level to 20 percent for 

intermediate ingredients and feedstocks 

to be eligible to receive the BioPreferred 

certification mark. The commenter has 

commercialized a family of unsaturated 

polyester resins that are used to 

fabricate fiberglass-reinforced and 

particulate reinforced composites used 

in an increasingly wide variety of 

applications in the transportation and 

building and construction industries. 

The biobased content in these 

commercially-available resins falls in 

the 8 to 22 percent range. They 

currently have developmental products 

with biobased content in the 30 to 40 

percent range. The commenter 

recommends that the biobased content 

eligibility cut-off for a label be set at 20 

percent, not only for these types of 

products but for chemical intermediates 

and feedstocks in general. The 

commenter believes that this level will 

stimulate further consumption of 

existing resins and incentivize 

companies to continue to develop 

biobased resins with even higher 

biorenewable content. 

One industry organization commenter 

believes that for finished products that 

do not fall within an existing product 

category identified for Federal preferred 

procurement the default biobased 

content percentage should be lower 

(e.g., 25 percent). More flexibility is 

needed in setting a default standard for 

finished biobased products that have 

not yet been identified for Federal 

preferred procurement. This is a new 

industry that is creating a range of end 

products, each of which needs to meet 

different performance standards 

depending upon the type of product. It 

is not always possible to meet accepted 

industry performance standards and 

achieve a 51 percent or greater biobased 

content. 

One industry organization supports a 

minimum biobased content of anywhere 

between 20 and 51 percent for both 

intermediate ingredients and products 

that do not fall within an existing 

product category identified for Federal 

preferred procurement. 

Two industry commenters believe the 

proposed 51 percent minimum biobased 

content is inappropriately high. One of 

the commenters states that they 

understand the desire to establish the 

highest possible biobased content, but 

that performance requirements in many 

applications cannot be met with such 

high biobased content. The commenter 

suggested that USDA review the 

minimum biobased contents that USDA 

has set for products within the existing 

product categories identified for Federal 

preferred procurement, and establish a 

minimum for products not within those 

categories which would be more 

inclusive than the proposed 51 percent. 

The commenter stated that this would 

allow program expansion without 

greatly increasing the administrative 

burden. The commenter stated that, for 

example, if the minimum biobased 

content was set at 20 percent, then 44 

of the 49 categories of identified items 

would meet this criterion. Selecting 51 

percent appears to be arbitrary as there 

is no rationale provided in the proposed 

rulemaking for this minimum. The 

commenter further stated that USDA has 

developed a rigorous process for 

identifying the BioPreferred Products 

that have been identified for Federal 

preferred procurement. The 

BioPreferred Products to date represent 

a reasonably sized ‘‘sample’’ of biobased 

products currently on the market. 

Selecting a minimum biobased content 

of 20 percent for the labeling program 

covers at least 90 percent of the product 

categories identified for preferred 

procurement to date by USDA. The 

other commenter notes that the existing 

minimums for several of the product 

categories are well below that 51 

percent threshold and states that if the 

bar had been set so high when products 

within these categories were being 

developed, it could have inhibited that 

development. Additionally, these 

products were developed even before 

the incentive from USDA. To the degree 

that the USDA program will incentivize 

future development, setting the bar this 

high could inhibit that same 

development. The commenter believes 

it might be more realistic to set the 

default minimum biobased content 

somewhere in the lower end of the 

range (15 to 20 percent) of the minimum 

biobased contents specified for product 

categories already included in the 

BioPreferred Program, with the 

expectation that most products’ 

biobased contents will increase as 

technology advances. 

Two industry organization 

commenters and one industry 

commenter state that USDA’s proposed 

approach to establishing and enforcing 

biobased content levels does not take 

into account the imprecision in the 

analytical testing method used to 

determine biobased content or 

manufacturing variations in the 

production of different batches of 

products or small formulation changes. 

On the first point, the ASTM D6866 

test method has precision of +/¥ 3 

percent on the mean biobased content 

reported. Because of this, USDA has 

previously recognized the need for 

flexibility when establishing minimum 

biobased content levels for BioPreferred 

Products. The commenters urge that 

USDA take the same approach in the 

labeling rule. Products should be 

eligible for certification if their biobased 

content falls within 3 percentage points 

of the minimum content level and 

should be considered in compliance if 

their content falls within 3 percentage 

points of their label statement. 

Manufacturers should not have to 

reapply for certification if their 

product’s biobased content falls within 

3 percentage points of their label 

statement. 

On the second point, the commenter 

stated that in any manufacturing process 

there will be some production variation. 

Also, small changes can be made to 

formulas over time. Therefore, the 

commenters urge USDA to allow a 

manufacturer applying for a label 

certification to establish a biobased 

content for the purpose of the label that 

may be below the actual D6866 test 

results in order to account for 

manufacturing variations. The 

commenter stated that, as currently 

written, the applicant does not appear to 

have that flexibility. The proposed rule 

appears to require that the percentage 

biobased content used for the label be 

exactly what is reported in the lab test 

results submitted with the application. 

One industry commenter stated that 

he supports allowing intermediate 

ingredients such as biobased plastic 

resin to be eligible for the voluntary 

labeling program and that, for those 

products, the certification mark should 

reference the product’s biobased 

content, with a minimum of 50 percent 

biobased content. 

One industry organization commenter 

requests clarification of the definition of 

‘‘intermediate ingredients or feedstocks,’’ 

but states that he supports a required 

biobased content level of anywhere 

within 20 to 50 percent for intermediate 

ingredients and for the final products 

that are not within product categories 

identified for Federal preferred 

procurement. The commenter also 

supports the inclusion of biobased 

intermediates as eligible to receive the 

certification mark under the current 

rulemaking. 

Response: The majority of the public 

comments received on the proposed 51 

percent minimum biobased content for 

finished biobased products, as well as 

intermediate ingredients and feedstocks, 

that are not within product categories 


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Federal Register / Vol. 76, No. 13 / Thursday, January 20, 2011 / Rules and Regulations 3793 

identified for Federal preferred 

procurement recommended that the 

level be lowered. Based on USDA 

consideration of these public comments, 

as well as other factors, USDA has 

reconsidered the applicable minimum 

biobased content requirement and 

concluded that a 25 percent minimum 

biobased content is more appropriate. 

As pointed out by the commenters, 

several product categories that have 

been identified for Federal preferred 

procurement have applicable minimum 

biobased contents less than the 51 

percent minimum that had been 

proposed for (1) finished biobased 

products and (2) intermediate 

ingredients or feedstocks that are not 

within product categories that have 

been identified for Federal preferred 

procurement. For example, ‘‘general 

purpose laundry products’’ which were 

identified in Round 4 of the 

‘‘Designation of Biobased Items for 

Federal Procurement’’ have an 

applicable minimum biobased content 

level of 34 percent, 17 percent lower 

than the proposed biobased content 

minimum for certification. 

USDA considered the fact that, on a 

global basis, many other entities 

promoting the development and use of 

biobased products recognize those 

products that have biobased contents of 

less than the proposed 51 percent. For 

example, two European Union 

independent certifying organizations, 

DIN–CERTCO (Germany) and AB 

Vincotte (Belgium), specify 20 percent 

as the minimum acceptable biobased 

content for products they certify as 

biobased. The Japan BioPlastics 

Association, which certifies biobased 

products for Japan, Korea, and China, 

specifies 25 percent as the minimum 

acceptable biobased content for 

products they certify as biobased. 

USDA also considered that adopting a 

lower minimum biobased content 

criteria for these products will allow a 

greater number of new biobased 

products to receive the benefits of the 

label. This, in turn, is expected to lead 

to increase sales of those biobased 

products. In addition, many of these 

new products will increase in biobased 

content over time with advances in 

materials engineering and technology. 

For example, the biobased foam used in 

automobiles originally had a biobased 

content in the 5 to 10 percent range but 

has now increased to over 30 percent 

biobased. 

Therefore, USDA believes that 

lowering the applicable minimum 

biobased content for both finished 

products and intermediate materials 

that are not at present BioPreferred 

Products would further the goals of the 

program and allow for a greater number 

of biobased products to use the 

certification mark. This will create more 

visibility for the labeling program, 

helping to achieve the goals of the 

program, and further encourage 

emerging markets because it will, as one 

commenter noted, ‘‘incentivize future 

development.’’ 

Because of the variability in product 

testing, as noted by one commenter, 

USDA is setting the minimum biobased 

content levels for products eligible for 

the Federal preferred procurement 

program 3 percent lower than that of the 

tested product upon which the 

minimum level is based. However, for 

the labeling program, the 25 percent 

minimum biobased content is not based 

on testing of an actual product, but is a 

USDA policy decision based on 

consideration of the factors described 

above. Applicants must meet the 

minimum biobased content percentage 

they report for a product and should 

take the testing variability into account 

when applying for product certification. 

As such, a manufacturer or vendor may 

want to claim a more conservative 

biobased content percentage for a 

product in its application for 

certification to use the label. Thus, to 

ensure that test results consistently meet 

or exceed the biobased content stated in 

the application, manufacturers may 

want to claim a biobased content 3 to 

5 percent lower than test results have 

indicated. 

Comment: Two industry organization 

commenters urge USDA to clearly 

specify the procedure and steps by 

which an applicant can request an 

exception to any specific minimum 

biobased content chosen for the final 

rule. 

Response: USDA is working to 

standardize this process and anticipates 

that it will be similar to the process 

used to set product minimum biobased 

contents for eligible products in the 

Federal preferred procurement program. 

Such a process would include 

identifying similar biobased products 

and their manufacturers and 

determining biobased contents for 

similar biobased products. USDA 

recognizes the difficulties involved in 

collecting biobased contents, due in 

large part to the unpredictability of 

manufacturer and vendor participation 

in providing products for testing. 

However, similar to the process used in 

the Federal preferred procurement 

program, the establishment of 

alternative minimum biobased contents 

for the labeling program will require a 

measure of flexibility to address the 

variability in product type and level of 

industry development. In general, the 

number of samples that should be 

obtained for the biobased content 

analysis would depend on the number 

of manufacturers of a product and 

similar products available. USDA would 

expect applicants to coordinate with 

program officials to identify and agree 

upon a reasonable number of samples 

for the analysis. Emphasis would be 

focused on obtaining the maximum 

number of samples possible without 

restricting the analysis process. 

The Labeling of ‘‘Complex Products’’ 

Comment: Three industry 

organizations strongly agree with USDA 

that complex products are finished 

products, are separate and distinct from 

biobased products, and should be 

included in the BioPreferred Program’s 

labeling program. The commenters 

support including ‘‘complex products’’ 

in the labeling effort. The commenters 

believe that complex products can be 

included in the rule even in the absence 

of a test method to determine the overall 

biobased content of a complex product. 

If a complex product, such as a car, 

includes components that contain 

biobased products (e.g., seats, 

headliners, dashboards), it is not 

practical, or even meaningful, to test 

and or calculate the overall biobased 

content of the car. Rather, there should 

be an option to label the components 

with the biobased content. Two of the 

commenters state that one approach for 

doing this would allow a component 

(e.g., seat) that contained a ‘‘USDA 

Certified Biobased Product’’ to be 

eligible to use the certification mark. For 

example, if the foam used to make the 

seat had a certification to use the mark 

then that certification could be carried 

through to the seat. The mark could 

read: ‘‘Seat: Contains Foam with XX 

Percent Biobased Content.’’ Another 

approach would be to allow the 

component to be tested separately for 

biobased content or a weighted average 

of the biobased ingredients could be 

calculated and if it met the default 

percentage it would be eligible for the 

certification mark. If it did not, the 

manufacturer or vendor could apply to 

USDA for an ‘‘alternative applicable 

minimum biobased content.’’ 

Three commenters propose that, to 

determine the biobased content of a 

complex product, an interim approach 

would be to (1) take a weighted sum 

(e.g., weight of component 1 × new 

carbon content of the feedstock material 

used in component 1 + weight of 

component 2 × new carbon content of 

the feedstock material used in 

component 2; etc. until all components 

have been included) and then (2) 

normalize this number by the total 


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3794 Federal Register / Vol. 76, No. 13 / Thursday, January 20, 2011 / Rules and Regulations 

2The definition of ‘‘biobased products’’ found in 

the 2008 Farm Bill is as follows: ‘‘The term 

‘biobased product’ means a product determined by 

the Secretary to be a commercial or industrial 

product (other than food or feed) that is—(A) 

composed, in whole or in significant part, of 

biological products, including renewable domestic 

agricultural materials and forestry materials; or (B) 

an intermediate ingredient or feedstock.’’ 

weight of the complex product. 

Consistent with USDA’s current 

requirements, the new carbon content 

should be determined using ASTM 

D6866. 

These commenters recommend that, 

as a long term approach, USDA 

continue to consult with ASTM to 

gather information on complex products 

to proceed with the development of a 

method that can be used to determine 

the biobased content of these products. 

Once an acceptable test method is 

available, the commenters agree that 

USDA should amend the voluntary 

labeling rule to allow for the labeling of 

complex products. 

One industry commenter states that 

care should be taken to not complicate 

the labeling process. A wind generator 

that uses biobased grease or gear 

lubricants, and biobased composites for 

the blades should indicate that the 

blades are biobased and the gear lube is 

biobased. Trying to qualify what percent 

of the total wind generator is biobased 

would complicate the process. 

One industry commenter suggests 

modifying the term ‘‘complex products’’ 

in the labeling program to ‘‘complex 

finished products’’ to avoid any 

confusion with polymer systems. The 

commenter believes that ‘‘complex 

finished products’’ can be included in 

the rule even in the absence a test 

method to determine the overall 

biobased content of a complex finished 

product. 

One individual commenter believes 

that, for complex products, it would be 

unwise to base the biobased content on 

weighted averages for the biobased 

content of all the biobased components. 

This approach would be too costly for 

some product manufacturers to consider 

and could hinder participation in the 

program. In addition, the total error 

associated with the weighted average 

will increase considerably (due to 

cumulative errors) as the number of 

components within a complex product 

increases. As a result, the total error 

associated with any given item (or 

between individual products within an 

item) will be product-specific, which is 

undesirable from a designation 

perspective. 

One industry commenter states that 

many of these complex products will 

contain components manufactured from 

biobased and non-biobased materials. In 

some cases, the use of biobased 

intermediate ingredients or feedstocks 

in components may not represent a 

significant amount of the finished 

product (i.e., contains less than 51 

percent biobased content). However, the 

use of biobased materials may represent 

a significant improvement for the 

finished product that should be 

encouraged. 

One industry commenter also believes 

that it is important to look at 

subcategories as well as categories of 

products because there are often 

performance requirements that place 

limits on the amount of biobased 

materials that can be used for certain 

specific applications within the same 

product categories. For example, the 

amount of biobased content in foam 

used in automotive seating can vary 

from the amount used in foam seating 

for sofas due to performance 

requirements. 

Response: USDA appreciates the 

comments on this subject but has 

decided it is best not to include 

complex products in the voluntary 

labeling program at this time. USDA 

recognizes the importance of complex 

products but believes there are many 

issues to be resolved before such 

products can be included in and 

recognized by the labeling program. 

These issues include establishing a 

minimum biobased content and other 

criteria for approval, development of an 

acceptable test procedure to determine 

the biobased content of complex 

products, and the appropriate 

certification mark content and 

placement. USDA does not want to 

delay the implementation of the labeling 

program for other categories of more 

simple, finished products while this 

development work for the labeling of 

complex products is being completed. 

The Labeling of ‘‘Mature Market 

Products’’ 

Comment: Six commenters agree with 

USDA’s proposal that products that are 

considered to be ‘‘mature market 

products’’ (i.e., products that had 

significant market penetration in 1972) 

should not be eligible for participation 

in the labeling program of the 

BioPreferred Program as mature market 

products could affect the entry of new 

(i.e., post-1972) biobased products into 

market segments in which mature 

products already have significant 

market shares. The commenters believe 

that inclusion of ‘‘mature market 

products’’ would be counter to USDA’s 

objective to promote development and 

adoption of new technologies and 

biobased products. 

Two of the commenters questioned 

why the date of 1972 was selected as the 

cut-off year for products to be included 

in the ‘‘mature market’’ category and one 

commenter requested that USDA 

provide additional information 

including defense and rationale 

regarding the selection of 1972. The 

commenter notes that USDA may decide 

to allow manufacturers of mature 

market products to appeal and states 

that USDA should make clear the 

information regarding the criteria by 

which a manufacturer of mature market 

products can appeal, the details of the 

appeal process and how USDA will 

determine if an appeal is approved or 

not. The commenter also recommends 

that if manufacturers of ‘‘mature market 

products’’ are allowed to appeal, then 

the appeal process should include a 

public comment period to allow the 

public to review the appeal and to 

submit comment about it. 

Two commenters recommend that 

USDA not allow manufacturers of 

biobased products to appeal, on a caseby-case basis, the exclusion of their 

mature market products. The 

commenters state that, in enacting 

section 9002, Congress made it clear 

that the purpose of the program, 

including the labeling program, was to 

grow the market for new biobased 

products. The value of the certification 

mark for manufacturers and vendors of 

these products is to inform consumers 

that these new and innovative products 

are available and that USDA has 

certified the biobased content. The 

‘‘currency’’ of being a new and 

innovative product loses its meaning 

and quickly the label may become 

‘‘devalued.’’ Furthermore, mature market 

products have other already-established, 

and well known labels (like the cotton 

logo and FSC certification for wood and 

paper products) that they can use. The 

commenters recommended that any 

government label for mature market 

products be developed separately and 

under different authority than Section 

9002. 

One industry commenter states that 

the labeling of mature products would 

harm the BioPreferred Program’s 

labeling process in the early stages. A 

5- to 10-year delay before such mature 

products are allowed to be included and 

labeled would be helpful. 

Two commenters are concerned that 

the proposed regulations exclude 

mature market products from the 

program, except on a case-by-case basis, 

and could be interpreted as excluding 

forestry materials that fit properly 

within the definition of biobased 

products in the authorizing legislation.2

One of the commenters believes such an 


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exclusion would be arbitrary and 

capricious in violation of the 

Administrative Procedure Act, 5 U.S.C. 

706. Additionally, the commenter 

believes the proposed certification mark 

violates the consumer advertising rules 

of the FTC. 

This commenter, and another 

individual commenter, believe that the 

exclusion of mature market products 

from automatic inclusion in the 

voluntary labeling program should be 

eliminated for the following reasons: 

• There is no legitimate difference 

between new and mature products in a 

voluntary public information program; 

• There is no guidance on recognizing 

a product as ‘‘new’’; 

• The proposal provides for a case-bycase determination that would allow 

some mature market products to use the 

voluntary label; and 

• USDA assumes that Congress 

intended that the voluntary label 

program exclude mature market 

products, but the legislative history does 

not reflect this interpretation. 

One of the commenters states that 

USDA needs to understand that even 

‘‘mature’’ products can be ‘‘renewed’’ 

through innovations and following new 

industry standards such as sustainable 

forestry management programs. 

One industry commenter suggests that 

USDA extend applicability of the label 

to all biobased products. Alternatively, 

USDA should amend the proposed 

language on the label to clearly 

designate it as intended for emerging 

market products only. 

One nonprofit organization 

commenter has concerns about the 

nature of this label on the consumer 

market especially where it might lead a 

consumer to make assumptions about 

the overall sustainability of their 

purchase. The BioPreferred Program 

seems to provide a quantitative basis to 

the natural content. However, the 

commenter believes that exceptions for 

materials like wool or cotton for rugs, 

for example, could mislead a consumer 

to make a less environmentally 

preferable choice if they relied on the 

certified biobased product certification 

mark. 

One industry commenter believes that 

specifically excluding the mature 

market products will establish a system 

that creates the perception that USDA 

endorses the use of ‘‘new’’ products over 

mature market products, even if the new 

products contain less biobased materials 

than a competing mature product. This 

will, in turn, encourage consumers to 

make purchasing decisions that are 

counter to Congressional intent. For 

example, a paper plate, which USDA 

has characterized as a ‘‘mature market’’ 

product, could not use a certified 

biobased label despite the fact that it is 

made with close to 100% biobased 

material. On the other hand, a new 

plastic plate that is composed of only 

51% corn-based PLA could qualify for 

the certification mark under USDA’s 

proposed rule. This would be both 

confusing and misleading to the 

consumer resulting in the conclusion 

that the conspicuous use of a USDAbacked certification mark on the plastic 

plate constitutes a government 

endorsement. The consumer may also 

conclude that forestry practices, no 

matter how sustainable, are less 

environmentally preferable to synthetic 

polymers made from agricultural 

products. The commenter believes that 

excluding mature products will provide 

an unfair competitive disadvantage for 

these products and severely discount 

the environmental contributions of 

biobased forest products. 

One industry commenter states that 

since the label will be limited to a small 

pool of biobased products, they are 

concerned that the proposed label will 

increase customer confusion in an 

already chaotic labeling environment. 

Consumers will have no basis to 

determine why one biobased product 

carries the certification mark and one 

does not. While the designation between 

emerging and mature market products 

may be acceptable in a relatively closed 

Federal purchasing system, expanding 

this concept to the broad consumer 

marketplace under a simplistic labeling 

scheme will only increase consumer 

confusion. The proposed on-product 

USDA label does not provide 

clarification that it is intended for 

emerging market products only. A 

consumer, looking at a mature market 

biobased product, will have no idea 

why it is not (or cannot be) USDA 

certified as biobased. 

One environmental group commenter 

states that he does not understand why 

the labeling program would exclude 

mature market products while allowing 

biobased labeling of more recent 

entrants in the same market. This has 

the effect of favoring one biobased 

product over another based solely on 

their market maturity, rather than being 

based on any rational criteria related to 

reduced use of fossil fuels, carbon cycle 

benefits, or environmental sensitivity. 

The commenter states that the rules 

should be amended to avoid punishing 

environmentally favorable ‘‘mature’’ 

products, while encouraging 

environmentally less favorable ‘‘new’’ 

market entrants. 

Response: USDA received numerous 

comments both for and against the 

exclusion of mature market products 

from the voluntary labeling program. 

While USDA has carefully considered 

the comments received on the subject, 

the intent of section 9002, as described 

in the conference report accompanying 

FSRIA, ‘‘is to stimulate the production 

of new biobased products and to 

energize emerging markets for those 

products.’’ Thus, USDA believes it is 

appropriate for the guidelines to 

exclude products having mature 

markets from the program. 

The conference report does not 

specifically state whether the language 

quoted above refers to only the Federal 

preferred procurement program, the 

voluntary labeling program, or both. 

However, USDA believes that the 

widespread labeling of mature market 

products could negatively affect the 

entry of new biobased products into 

market segments in which mature 

products already have significant 

market shares. Therefore, USDA 

continues to believe that it is reasonable 

to exclude mature market products from 

the labeling program, as it has done for 

the Federal preferred procurement 

program. 

Regarding the 1972 cutoff year, as 

explained in the preamble to the final 

guidelines, the oil supply and price 

shocks that began in this country 

around 1972 provided the impetus for 

sustained serious new development of 

biobased alternatives to fossil-based 

energy and other products. 

Additionally, there was a return to 

existing, perhaps neglected or underutilized, biobased products. Thus, at its 

discretion, USDA has selected 1972 as 

the baseline year in its mature market 

guidance, consistent with the approach 

taken for the Federal preferred 

procurement program. In using 1972 as 

a point in time standard, rather than a 

dividing line between two eras, USDA 

believes this can provide for the 

identification (for Federal preferred 

purchasing) and labeling of some 

products that would otherwise be 

excluded. 

The Appropriate Lengths for the 

Certification Periods 

Comment: Four commenters 

recommend that certifications should 

remain valid as long as the certified 

product is manufactured. However, any 

change that would have any effect on 

the new carbon content and impact 

biobased content would necessitate the 

product being retested and recertified 

using ASTM D6866. Since USDA will 

be implementing an audit and 

enforcement program, this program 

should be adequate to ensure that 

applicants remain in compliance with 

the BioPreferred Program. 


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One industry commenter states that 

the appropriate length of certification in 

the early stages should be longer 

(5 years) and once the industry matures, 

reduced to 3 years. A simple annual 

response to a survey by USDA 

indicating that there have not been any 

changes to the labeled product could 

help USDA monitor products that are 

discontinued and keep the vendors 

active. 

Response: Most commenters agree 

with USDA’s proposal that a product’s 

certification should remain valid 

indefinitely unless USDA raises the 

minimum biobased content 

requirements for that specific product or 

the formulation of the product changes 

such that it falls below the minimum 

biobased content allowed for that 

product to be labeled. USDA has 

received no additional data or 

information to consider changing its 

decision in this regard and is making no 

change to the proposed regulation based 

on these comments. 

Preliminary Notice of Violations 

Comment: Two industry commenters 

support USDA adding a provision to 

allow for the Agency to issue 

‘‘preliminary’’ notices of violation before 

violation notices are issued. It is a 

sensible safety valve to add to the 

regulations to prevent triggering 

violation notices prematurely. This step 

can provide time to allow a 

manufacturer or vendor to work with 

USDA to clarify whether, due to 

confusion or misinformation, a violation 

really has not occurred. Also, if there 

was a paperwork or recordkeeping error 

it could be corrected in response to a 

preliminary notice without triggering a 

violation notice and all its 

consequences. 

Response: USDA agrees with the 

commenters and will include a 

provision for a preliminary notice of 

violation. Doing so will give 

manufacturers and vendors the 

opportunity to work with USDA to 

make corrections or clear up any issues 

which might place the manufacturer or 

vendor in violation. USDA believes that 

the labeling program is designed to 

encourage the production, marketing, 

and distribution of biobased products, 

not to be punitive in nature, and the use 

of a preliminary notice of violation will 

best serve the goals of the program. 

Biobased Content Testing Facilities 

Comment: Four commenters agree 

with USDA’s proposal requiring that 

biobased content testing facilities be ISO 

9001 conformant to promote data and 

results credibility. This would ensure 

that the manufacturer is complying with 

some basic quality requirements. One 

commenter believes ISO 17025 will be 

too demanding. 

Two industry commenters also state 

that they support allowing biobased 

content to be tested by any third-party 

ASTM/ISO compliant test facility. 

One industry organization commenter 

believes that USDA should not select a 

single standard, such as ISO 9001 or ISO 

17025, for biobased content testing 

laboratories but rather should allow for 

the biobased content testing to be done 

by any third party ASTM/ISO compliant 

testing facility. The USDA Guidelines 

for Item Designation take this approach 

and the labeling rule should be 

consistent with the testing facility 

provisions in the Guidelines. 

One individual commenter 

recommends that neither ISO 

certification nor ISO compliance should 

be a requirement. The commenter states 

that there are basically only two labs in 

the country that are performing 

biobased content determinations for the 

BioPreferred Program, and no new 

radiocarbon testing labs with interest in 

performing biobased content 

measurements have ever started up. 

Since there are so few suitable labs 

available, the commenter does not 

believe USDA should risk restricting the 

field further. The focus should be on 

qualifications rather than ISO 

compliance. 

Response: USDA continues to believe 

that it is in the best interest of the 

labeling program that biobased testing 

be performed by ISO 9001 conformant 

testing facilities. This will ensure that 

biobased products using the 

certification mark meet the high 

standards of the program. USDA 

believes it is important that the presence 

of the certification mark on a product 

will clearly indicate that the product is 

one for which credible information is 

available as to the biobased content, 

consistently measured across labeled 

products, as use of the ASTM 

radioisotope test D6866 standard will 

provide. 

Contents and Appearance of the 

Certification Mark 

Comment: Three commenters agree 

that the material (e.g., product, 

packaging or both product and 

packaging) to which the label applies 

should be clearly identified, and believe 

that USDA’s suggested wording for 

‘‘product’’ and ‘‘packaging’’ is clear. 

One industry commenter states that 

he has no issues with the ‘‘FP’’ on the 

USDA certified biobased product 

graphic (i.e., the certification mark) and 

that as long as the program includes an 

educational campaign that describes the 

mark, there should be no consumer 

confusion about what it means. 

Two commenters believe the way the 

‘‘FP’’ lettering is placed on the 

certification mark may not be adequate 

to distinguish the products that are 

eligible for Federal preferred 

procurement. One commenter states that 

the ‘‘FP’’ visually seems to disappear on 

the mark. Also the letters ‘‘FP’’ are not 

likely to have any identifiable meaning 

to either Federal employees or the 

general public without an outreach and 

education program on what ‘‘FP’’ means 

and how the Federal preferred 

procurement program works. The 

commenter does believe that it is 

important for Federal buyers to have an 

easy way to recognize products that fall 

within designated product categories. 

The commenter suggests that the 

following language be on the final label 

(under the text that now reads ‘‘USDA 

Certified Biobased Product’’) for 

BioPreferred Products currently eligible 

for Federal preferred procurement: 

‘‘Federal BioPreferred Designated 

Product.’’ In addition, the commenter 

recommends implementing a targeted 

outreach and education campaign to 

Federal buyers to educate them on the 

meaning of the label for a product 

eligible for preferred Federal purchasing 

versus a product likely to be labeled that 

is not currently eligible. 

Two commenters oppose the 

proposed ‘‘FP’’ designator to indicate 

that a product is eligible for Federal 

preferred procurement. One of the 

commenters does not believe that the 

‘‘FP’’ designator is necessary to inform 

Federal procurement officials about 

these items because these officials 

already have access to a list of the 

products eligible for Federal 

procurement preference. The 

commenters believe that consumers will 

not recognize the ‘‘FP’’ lettering on 

products, nor will they understand that 

these products, or similar products, 

have undergone life cycle costs and 

environmental performance analyses. 

Incorporation of the ‘‘FP’’ lettering may 

confuse the consumer regarding the 

purpose of the certification mark and 

will unnecessarily clutter and interfere 

with what is otherwise needs to be a 

clean, simple graphic. 

One commenter believes that the 

certification mark will provide little 

benefit to the average consumer and that 

using ‘‘FP’’ will tend to confuse matters, 

while another commenter believes that 

the ‘‘FP’’ information is irrelevant to the 

labeling program as currently proposed. 

Four commenters disagree with the 

inclusion on the certification mark of 

information on product performance, 

life-cycle costs and environmental and 


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human health effects of the labeled 

products. The commenters believe 

trying to add this information would 

likely make the certification mark 

confusing to purchasers, is beyond the 

scope of the labeling program, and is not 

authorized by the statute. 

One industry commenter states that 

the Farm Bill requires USDA to look at 

environmental impacts beyond biobased 

content as one of four criteria for the 

Federal preferred procurement program 

but that they do not think that this 

should be required for the voluntary 

labeling program. Biobased products 

manufacturers should be encouraged to 

provide additional environmental 

information and USDA should provide 

space on the website to communicate 

this rather than requiring it on, or near, 

the certification mark. If additional 

marketing claims are to be made on the 

package for purpose of communicating 

with consumers, this would fall under 

the jurisdiction of the FTC. 

One industry commenter states that 

printing sustainability information on a 

bag or package is an issue that needs 

further consideration. This adds more 

cost and ink to each bag of insulation 

which may go to landfill or be recycled. 

This information is normally included 

in product literature and specifications. 

It is also typically on the website of the 

manufacturer. It is more sustainable to 

provide product information in this 

manner than to print it on the package. 

Three commenters support including 

the percentage biobased content on the 

certification mark. One of these 

commenters believes this provides 

another critical way in which 

purchasers can select products that have 

the highest biobased content possible. 

Another commenter states that by 

displaying the percent biobased content, 

the consumer is able to make a 

purchasing decision based on actual 

content. 

One industry organization commenter 

states that there is not complete 

agreement among manufacturers on 

whether biobased content should appear 

on the certification mark. The 

commenter believes that USDA should 

carefully weigh the pros and cons of this 

label content issue. One approach 

would be not to list any content 

information on the certification mark 

because the mark will only be used on 

products that met the minimum 

biobased content established by USDA. 

Another approach would be to add the 

words ‘‘Meets or Exceeds USDA 

Minimum Biobased Content.’’ Another 

approach would be to give 

manufacturers the option of listing the 

biobased content percent on the mark or 

simply stating ‘‘Meets or Exceeds the 

USDA Minimum Biobased Content.’’ If 

USDA requires that a specific biobased 

content percent be placed on the 

certification mark, then flexibility 

should be given to manufacturers to use 

a number that reflects testing and 

manufacturing variability, as long as the 

number equals or exceed the minimum 

content requirement. 

One industry commenter states that 

including only the biobased content on 

the certification mark implies that only 

that criterion is relevant. USDA 

determines the minimum acceptable 

biobased content based on several 

factors, including commercially 

available offerings, performance 

requirements in the application, etc. 

Such multi-factor considerations have 

lead to a wide range of minimum 

acceptable biobased contents, from 7 to 

95 percent, across the range of product 

categories and applications. If the 

certification mark exclusively highlights 

the biobased content, this could send a 

misleading signal to the consumer that 

biobased content is the only relevant 

factor. The commenter suggests that, 

instead of including the percent 

biobased content on the mark, include 

the BioPreferred Program website URL 

in that proposed location on the label/ 

artwork. This would encourage 

consumers to become more informed 

about the program. Individual 

manufacturers would still have the 

option of including additional 

information regarding biobased content 

elsewhere on the package, separate from 

the label itself. Such claims would be 

subject to the guidance from the FTC 

‘‘Guides for the Use of Environmental 

Marketing Claims.’’ 

One industry commenter suggests that 

including the biobased content on the 

label be left to the discretion of the 

various companies. The commenter 

states that the current state-of-the-art of 

biobased analytic calculation remains 

not very accurate and this could open 

the doors to issues when a specific 

number will be indicated on a 

certification mark. 

One industry commenter states that as 

long as the products meet the minimum 

biobased content set by USDA, what 

relevance does ‘‘Product: x percent 

biobased’’ add? This would lead to a 

‘‘specmanship’’ competition in the 

market. 

One industry commenter 

recommended the following options for 

including the percent biobased content 

on the label (listed in order of 

preference): 

A. Allow the manufacturers the 

option of listing the biobased content or 

the wording ‘‘Meets or Exceeds USDA 

Minimum Biobased Content’’; 

B. Require the listing of actual 

biobased percent of the product (within 

the tolerance of standard test 

variability); or, 

C. If manufacturing variability of 

actual percent content is a significant 

issue, then require a numerical percent 

value, but rather than requiring listing 

actual percent or the minimum required 

percent, the manufacturer has the 

option of stating a percent content 

higher than the minimum but lower 

than their ‘‘normal’’ tested value. 

The commenter states that the 

BioPreferred Program would benefit by 

requiring one of the above label 

alternatives as they would serve as a 

continual incentive for manufacturers to 

maximize their biobased content. 

Conversely, it could be a deterrent to 

add lower cost non-renewable blends to 

a level just above the minimum allowed. 

One biobased industry commenter 

would like to see a very simple label 

without the specific biobased content. 

The minimum biobased content is 

established for BioPreferred Products 

and for other products it will be 51 

percent unless USDA approves an 

alternative. Therefore, a supplier simply 

needs to certify that their product meets 

the minimum standard for that 

product(s) and USDA needs to enforce 

to that biobased content level. If a 

company has a higher biobased content 

than that minimum, then they can 

market that product in their literature as 

such. 

One industry commenter believes that 

the logo is quite large and that USDA 

should reconsider the size. Product 

labels have limited space, and the 

graphic as shown in the draft voluntary 

labeling rule, is overly large. Although 

the label can be reduced, it would be to 

the point of not being readable or 

recognizable. 

One industry organization commenter 

supports the proposed requirement that 

the BioPreferred Program’s Web site 

address either be on or in close 

proximity to the label. Directing people 

to the site will be a good way to educate 

them about biobased products and what 

the certification mark means. 

One environmental group commenter 

states that the label should include a 

detailed information box adjacent to the 

logo, so the consumer knows the source 

of the bioproducts, the energy inputs 

used in their manufacture, and if any 

native ecosystems were degraded in the 

production process. 

One industry organization commenter 

believes that products that use the 

biobased product label must also state 

on the label the biological components 

of the product. 


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One industry organization commenter 

believes that the information USDA 

proposes be included is reasonable and 

should be legible on the vast majority of 

products. For products that may be too 

small to affix the certification mark in 

a legible form, USDA should consider 

authorizing the use of a separate ‘‘hang 

tag’’ containing the certification mark 

information that could be attached to 

the product. This approach would 

address the small product issue without 

the need to change the overall design of 

the mark artwork and accompanying 

statement. 

One individual commenter believes 

that, in order to better accommodate 

labeling of small products (e.g., lip 

balm), it would be advantageous to also 

offer a version of the certification mark 

that does not contain the words ‘‘USDA 

Certified Biobased Product.’’ Such a 

mark would be intended only for 

products where it would be very 

problematic to use the certification mark 

as currently proposed. 

One industry commenter states that 

he believes USDA should budget an 

extensive education campaign to 

generate brand awareness of the 

certification mark both within 

Government and to the public. 

Similarly, brand guidelines should be 

developed to ensure proper stewardship 

of the mark. 

One industry commenter states that 

the certification mark must be in full 

compliance with the FTC’s Guides on 

the Use of Environmental Marketing 

Claims. The commenter also states that 

consumer testing must be undertaken to 

determine whether the intent of the 

certification mark is clearly understood. 

Two industry commenters 

recommend that USDA develop and 

make available with its certification 

mark a simple set of guidelines 

regarding the proper usage of the mark 

and accompanying text to ensure a 

legible and consistent presentation of 

this information. 

Response: As stated in the proposed 

rule, USDA will create guidelines to 

address recommended certification 

mark size, given the variability in 

biobased product and packaging 

dimensions. These guidelines are 

referred to in the proposed rule as the 

‘‘Marketing Guides.’’ These guides/ 

guidelines will be available to 

manufacturers and vendors of labeled 

products to provide expanded 

discussions of, and guidance on 

resolving, implementation issues that 

may arise related to certification mark 

use. For example, USDA anticipates that 

there will be questions related to the 

best way to apply the certification mark 

on very small products, such as those 

within ‘‘lip care products’’, a product 

category whose products are identified 

for preferred Federal purchasing. USDA 

believes that the Marketing Guides, 

which can be updated frequently, are 

the most efficient way to keep 

certification mark users informed of 

guidance provided by USDA in 

response to implementation issues that 

arise. Additional information on 

sustainability and other data will be 

Web-hosted, not affixed to the mark. 

Additionally, USDA consulted the 

FTC, which issues the ‘‘Guides for the 

Use of Environmental Marketing 

Claims’’ to ensure that the provisions of 

the voluntary labeling program were 

consistent with the Guides. If 

manufacturers or vendors include 

environmental claims about biobased 

products on their products/packaging 

(beyond the application of the 

certification mark) these statements 

and/or marketing language may be 

flagged and forwarded to the FTC for 

their review and follow-up. 

Further, while USDA appreciates the 

concerns of commenters who would like 

to see more environmental and 

performance information on the 

certification mark, USDA believes that 

the certification mark needs to be kept 

as simple as possible to maintain 

legibility and clarity. Adding further 

information to the mark will only make 

it more difficult to read and understand, 

lessening the impact of the label and the 

BioPreferred Program. 

While some commenters believed that 

the ‘‘FP’’ acronym proposed to appear on 

the certification mark was confusing, 

others believed that the acronym would 

be helpful to Federal procurement 

officials and also informative to the 

general public. Some commenters felt 

the biobased content percentage 

proposed to appear on the certification 

mark was confusing and/or misleading, 

and felt that a large-scale outreach and 

educational campaign may be necessary 

to educate potential buyers on the 

meaning and purpose of this 

information. USDA considered the 

comments related to the proposed 

content of the certification mark and 

believes that the mark would be most 

informative if it includes both the ‘‘FP’’ 

(if the product has been designated for 

Federal preferred procurement) and the 

biobased content percentage, as 

proposed. Also, to ensure that the 

certification mark clearly indicates 

whether it applies to the product, the 

packaging, or both, the mark will be 

available in the following variations: 

‘‘USDA Certified Biobased Product’’, 

‘‘USDA Certified Biobased Product: 

Package’’, or ‘‘USDA Certified Biobased 

Product & Package’’, to be used as 

appropriate. 

Timeframe for Correcting Violations 

Comment: Four commenters agree 

with USDA’s recommendation for 30- 

and 60-day periods (from the date the 

notice of violation is received) for the 

offending party to correct violations 

before a notice of suspension or other 

remedy is sought. Two of the 

commenters state that to provide more 

flexibility, USDA could consider adding 

a provision for case-by-case extensions 

of the 30- and 60-day periods to deal 

with special or extenuating 

circumstances (such as late reporting by 

a lab). 

One industry commenter states that 

notice of violations should be given 30 

days to respond and 60 to 90 days to 

correct. 

One industry association commenter 

proposes a 60-day time period to correct 

violations pertaining to biobased 

content to ensure adequate timing to 

correct any identified issues. In 

addition, the commenter agrees with 

USDA’s recommendation for a 60-day 

period for the offending party to correct 

all other violations before a notice of 

suspension or other remedy is sought. 

Response: Most of the commenters 

addressing this issue agreed with the 

proposed 60-day time period for 

correcting violations. However, USDA 

recognizes that as the voluntary labeling 

program is not a regulatory program but 

a market development program, USDA 

needs to be as understanding as possible 

while maintaining a firm date of 

enforcement. For these reasons, USDA 

has decided to allow 90 days for the 

correction of a violation once a notice of 

violation is received. 

Recordkeeping 

Comment: Four commenters support 

USDA’s proposal that appropriate 

records be kept in order to allow USDA 

to verify all information associated with 

the labeling program and that these 

records be kept for at least 3 years 

beyond the end of the label certification 

period. 

One commenter supports USDA’s 

plan to require documentation 

supporting claims made on product 

packaging about the environmental and 

human health effects, life cycle costs, 

sustainability benefits, and performance 

of their products. This is especially 

important given the widespread misuse 

of biodegradability claims, and 

unsubstantiated compostability claims, 

being made by product manufacturers. 

When including claims regarding 

compostability on the certification mark 

or product packaging, manufacturers 


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should have to detail the specific 

environment in which the product will 

fully biodegrade and for which they can 

provide documentation. 

One of the commenters states that 

records should not be required to be 

kept for analyses of environmental, 

health, sustainability benefits, life cycle 

costs, or product performance because 

these are outside the scope of the 

labeling program. Even if manufacturers 

or vendors are making specific claims in 

these areas, USDA does not have 

jurisdiction to enforce the validity of 

such claims. Also, records should not be 

required to be kept for formulation 

changes that are not relevant to the label 

criteria, such as changes in nonbiobased ingredients, or changes in 

biobased ingredients that do not result 

in greater than a 3 percent change in the 

formula. 

Response: Most of the commenters 

agreed with the recordkeeping 

requirements that USDA has proposed 

for the rule. USDA disagrees with the 

commenter who claims that the 

requirement to keep documentation to 

support environmental, health, 

sustainability benefits, life cycle costs, 

or product performance claims is 

outside the jurisdiction of USDA. 

Because the labeling of biobased 

products is voluntary, USDA believes 

that making the use of the label 

contingent upon keeping such 

documentation is justified and 

reasonable. If a labeled biobased 

product also includes such claims of 

product benefits without proper 

justification and documentation of the 

benefits, then UDSA believes that the 

integrity of the label is compromised. 

Thus, USDA does not believe that 

manufacturers who make such product 

benefit claims without documentation 

should be allowed to include the 

Certified Biobased Product label on 

their products. 

Regarding the commenter’s concern 

about formulation changes, USDA’s 

intent is that manufacturers must keep 

records of changes in the product 

formulation that result in the products 

biobased content changing. USDA has 

clarified the text of the recordkeeping 

provisions in the final rule to limit the 

recordkeeping to formulations that 

affect the biobased content of the 

product. 

Benefits and Costs 

Comment: Three commenters agree 

that the benefits outweigh the costs of 

the program (e.g., testing, submitting 

applications and associated information, 

and recordkeeping). One of the 

commenters adds that USDA must take 

great care to ensure that it emphasizes 

the collection and use of complete, 

technically sound information on which 

to base its decisions. 

Response: The commenters generally 

agreed with the goals of the program 

and did not offer any specific data or 

suggestions that would necessitate any 

changes to the program. 

Comment: One environmental group 

commenter states that USDA should 

prepare an environmental impact 

statement (EIS) to show the 

environmental impacts of these 

proposed rules and alternatives. The 

commenter also states that this program 

should avoid creating incentives to 

transfer of large acreage from bio-diverse 

‘‘conservation reserve programs’’ to 

monocropping for biobased products 

and that the consequences must be 

disclosed in a National Environmental 

Policy Act (NEPA) analysis. 

Response: While the commenter’s 

concerns are appreciated, USDA 

believes that the rule complies with all 

regulatory requirements and does not 

agree that any additional NEPA 

analysis, such as an EIS, is also 

required. 

Application Fee 

Comment: Three commenters state 

that a proposed future application fee of 

$500 is reasonable as long as the fee is 

allocated towards a certification mark 

auditing and/or monitoring program. 

One individual commenter states 

some fee is justified to help with 

implementing portions of the labeling 

program but that many companies are 

reluctant to participate in the 

BioPreferred Program because they are 

not convinced that doing so will 

increase product sales significantly. The 

commenter states that the economic 

benefits of participating in the 

BioPreferred Program are yet to be 

verified, so any fee should not exceed 

$500. 

One commenter does not support 

imposition of any future labeling fees 

that would unduly burden companies, 

particularly small- and medium-size 

biobased product manufacturers. An 

application fee could cause an economic 

burden for companies with multiple 

products and small- and medium-size 

companies, and discourage them from 

applying for the label. For companies 

with multiple products, fees can add up 

quickly and adding another $500 per 

product on top of the testing fees could 

put the labeling program out of reach for 

many companies, particularly smalland medium-size companies. 

Response: While most commenters 

support the collection of a fee, 

particularly if the proceeds from this fee 

supported efforts to audit/monitor 

compliance with the voluntary labeling 

program, USDA is not currently 

authorized to impose an application fee 

and, thus, cannot do so. USDA has, 

however, included in today’s final rule 

the regulatory text necessary to 

implement a $500 application fee. The 

effective date of the fee provision is 

pending until USDA is granted the 

legislative authority to impose the fee. A 

Federal Register notice will be issued 

amending the final rule to add the 

effective date of the application fee 

provisions once the authority is granted. 

General Comments 

Comment: One environmental group 

states that the proposed rules overgeneralize the benefits of biobased 

products and fail to recognize that some 

biobased products are more preferred 

than others. The commenter states that 

these rules raise the prospect of 

‘‘greenwashing’’ by potentially 

misleading the public into thinking that 

some products are environmentally 

benign when they are not benign, 

relative to existing products or 

alternatives. 

Response: While USDA appreciates 

the commenter’s concerns, the purpose 

of the voluntary labeling program is to 

promote and increase the use of 

biobased products as defined in the 

rule. The labeling program is designed 

to support this goal by recognizing 

manufacturers and vendors that produce 

and market products that utilize 

biobased materials and by encouraging 

consumers outside the Federal 

Government to purchase such products. 

It is not USDA’s intent to mislead or 

otherwise misinform the public about 

the potential benefits of one particular 

product over another. In addition, 

manufacturers and vendors are required 

to post certain information about their 

products on USDA’s Web-hosted 

BioPreferred Program site. 

Comment: One industry organization 

and two industry commenters state that 

Congressional intent in enacting section 

9002 was to stimulate the development 

of a value-added biobased products 

industry with a focus on expanding 

demand for new uses and applications. 

This purpose was made even clearer 

when Congress enacted the 2008 Farm 

Bill and changed the name of the 

section 9002 program to the ‘‘Biobased 

Markets Program.’’ To grow the market 

for biobased products, it is essential to 

recognize the role of the entire value 

chain, from feedstocks (e.g., soy, corn, 

canola, sunflowers) to intermediate 

ingredients (e.g., polyols, resins, 

biosolvents) to formulated products 

(e.g., cleaners, lubricants, insulation, 

foams, plastics) to finished products 


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that contain biobased components (e.g., 

chairs or bedding with biobased foam). 

One industry commenter states that 

the voluntary labeling program presents 

the opportunity for USDA to affect 

stakeholders within the bioproducts/ 

biomaterials value chain and create 

additional market pull for the biobased 

intermediates upon which the final 

products are based. Intermediates are 

derived more directly from agricultural 

products and encompass the 

transformational technologies that 

enable the final products to have 

biobased content. This is the essential 

link in converting agricultural feedstock 

to final products. Including 

intermediates along with final products 

is also critical to the success of the 

BioPreferred Program. 

Response: USDA agrees with the 

commenters and has included 

intermediate ingredients and feedstocks 

in its proposed and final definition of 

‘‘biobased product.’’ 

Definitions 

Comment: One industry organization 

commenter states that to avoid 

ambiguity, USDA should include a 

definition of what is considered a 

‘‘complex product’’ in the Definitions 

section of the rule. 

One industry organization commenter 

and one industry commenter 

recommend that USDA include vendors, 

distributors, and re-packagers under the 

definition of ‘‘Designated 

Representative.’’ As part of the 

application process, manufacturers 

could provide USDA with a list of the 

‘‘designated representatives’’ who would 

be using the certification mark. USDA 

should also allow certified 

manufacturers to update this list from 

time to time without requiring that a 

new application being submitted. 

Finally, if a vendor, distributor, or repackager is included as a ‘‘Designated 

Representative,’’ they should be held 

directly accountable by USDA for any 

violations in how they use the 

certification mark or any changes they 

make to a product’s biobased content 

that violates the use of the mark. Section 

2904.7 of the proposed rule would need 

to be modified to make sure that 

manufacturers are not held responsible 

for the way the mark is used by the 

vendors, distributors, or re-packagers 

that are listed as ‘‘Designated 

Representatives.’’ It is important that 

USDA hold the vendors, distributors, 

and re-packagers to the same standards 

that they will hold the manufacturer 

and use the same enforcement 

mechanisms against those entities if a 

violation occurs. In addition, USDA 

should clarify the definition of 

‘‘Manufacturer’’ to include any ‘‘vendor’’ 

that alters a product. Such a vendor 

should be considered a formulator and 

formulators should be considered 

manufacturers. 

Two industry organization 

commenters state that the proposed 

labeling contains a definition of 

‘‘Intermediate Ingredients or Feedstocks’’ 

that varies from the statutory definition. 

USDA adds the following language to 

the definition: ‘‘For the purposes of this 

subpart, intermediate ingredients or 

feedstocks do not include raw 

agricultural or forestry materials, but 

represent those materials that can be put 

into a new cycle of production and 

finishing processes to create finished 

materials, ready for distribution and 

consumption.’’ The commenter states 

that USDA provides no justification for 

this additional language, the language is 

inconsistent with the statute, and it 

should not be included in the labeling 

program rule. 

Two commenters state that the 

proposed labeling rule’s definition of 

‘‘Intermediate Ingredients or Feedstocks’’ 

needs more clarity. One of the 

commenters states that all of the 

currently designated items appear to be 

finished products (e.g., something a 

consumer could buy) and that he does 

not understand how any intermediate 

itself could be identified as a 

BioPreferred Product (a product eligible 

for preferred Federal purchasing). The 

commenter asked whether polymers 

would be considered to be 

intermediates, since they would be 

converted into finished products which 

may be eligible for Federal preferred 

procurement. 

One individual commenter states that 

a biobased product is defined as a 

commercial or industrial product that is 

A) composed, in whole or in significant 

part, of biological products, including 

renewable domestic agricultural 

materials and forestry materials, or B) an 

intermediate ingredient or feedstock. 

The commenter believes USDA should 

consider removing part ‘‘B’’ from the 

definition since it is redundant. The 

commenter believes that anything 

falling into part B will also fall within 

the definition provided in part A. 

One commenter feels it is very 

important that the Agency carefully 

define what ‘‘renewable’’ means. 

Without a specific definition, the 

commenter felt, a surge in biobased 

agriculture could spawn a severe uptick 

in unsustainable agriculture, the use of 

genetically modified organisms, and 

toxic farming chemicals that would be 

even more polluting to the land and 

water. The commenter stated that this 

has already been the case with cornbased fuels and industrialized farming. 

The commenter suggests adding these 

definitions to the renewable criteria— 

‘‘Bio material is (1) grown in a sustainable 

manner, including in relation to soils, 

waterways, forests, and animals, (2) does not 

take away from the natural biodiversity of the 

material in the wild, organic, and farmed 

environments, (3) does not pollute or degrade 

soils and waterways as materials are grown 

and managed, and (4) genetically modified 

plants should not be acceptable as 

renewable.’’ 

Response: USDA is in the process of 

completing a ‘‘term definitions’’ section 

on the BioPreferred Program Web site 

and will consider the various comments 

received on the definitions in the 

development of that section. Regarding 

the comment concerning the definition 

of a ‘‘complex product’’, a complex 

product is a finished, consumer product 

composed of many different types of 

components. Today’s rule does not 

contain provisions to allow for the 

labeling of complex products. 

Regarding the definition of ‘‘biobased 

product,’’ USDA makes no change to 

this definition as it thinks it is 

important to point out that for the 

purposes of this subpart ‘‘intermediate 

ingredients or feedstocks’’ can meet the 

definition of a ‘‘biobased product.’’ 

Regarding the definition of 

‘‘intermediate ingredients or feedstocks,’’ 

one commenter opposed USDA’s 

proposed addition of the following 

language to the statutory definition: ‘‘For 

the purposes of this subpart, 

intermediate ingredients or feedstocks 

do not include raw agricultural or 

forestry materials, but represent those 

materials that can be put into a new 

cycle of production and finishing 

processes to create finished materials, 

ready for distribution and 

consumption.’’ USDA proposed the 

definition that included this sentence to 

clarify that it does not intend for the 

label to be used on raw, unprocessed 

agricultural or forestry materials such as 

corn kernels, soybeans, or forestry 

thinnings. However, once these raw 

materials have been ‘‘processed’’ into 

feedstock materials such as corn starch, 

soybean oil, or wood fibers, they can be 

labeled as intermediate ingredients or 

feedstocks if they meet the other criteria 

for certification. USDA does not believe 

that the proposed definition is 

inconsistent with the statutory language 

that states that an intermediate 

ingredient or feedstock means ‘‘*** a 

material or compound made in whole or 

in significant part from biological 

products * * *.’’ 


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Criteria for Obtaining Certification 

Comment: One industry organization 

commenter recommends that USDA 

clarify and explicitly state whether 

domestic biobased carbon content is 

required. On ‘‘Criteria for Obtaining 

Certification,’’ biobased product is 

defined with the language ‘‘including 

renewable domestic agricultural 

materials.’’ The commenter states that it 

appears that domestic versus foreign 

source new carbon content is irrelevant 

in the label application. 

Response: The regulations 

implementing the biobased preference 

program under 7 CFR 2902.2 define 

biobased products as ‘‘A product 

determined by USDA to be a 

commercial or industrial product (other 

than food or feed) that is composed, in 

whole or in significant part, of 

biological products or renewable 

domestic agricultural materials 

(including plant, animal, and marine 

materials) or forestry materials.’’ 

Subsequent amendments to 7 CFR 

2902.4(b)(3) clarify that biobased 

products from any designated country 

would receive the same preference 

extended to U.S.-sourced biobased 

products. 

As stated in CFR 2902.4(b)(3) ‘‘In 

implementing the preference program, 

Federal agencies shall treat as eligible 

for the preference biobased products 

from ‘designated countries’, as that term 

is defined in section 25.003 of the 

Federal Acquisition Regulation, 

provided that those products otherwise 

meet all requirements for participation 

in the preference program.’’ 

Designated countries include 

countries that have entered into specific 

trade agreements with the United States 

(such as the North American Free Trade 

Agreement [NAFTA]) or offer reciprocal 

equal treatment to U.S.-sourced goods. 

However, manufacturers and vendors 

must register their products with USDA 

in order to qualify as an approved 

supplier of biobased products. 

Comment: One environmental group 

commenter states that an additional 

criterion should be included in the 

labeling evaluation. The commenter 

states that production of the biobased 

product should not result in net 

reduction in biological carbon storage in 

ecosystems such as forests, woodlands, 

rangelands, grasslands, wetlands, 

croplands, waterways, etc. 

Response: USDA appreciates the 

commenter’s concerns but believes that 

these concerns fall outside the scope of 

the voluntary labeling program. 

Criteria for Obtaining Certification— 

Criterion 1: Biobased Product 

Comment: One industry consultant 

commenter states that the USDA 

Certified Biobased Product Label 

implies a biobased product results in 

climate change impact reduction and 

energy/environmental security 

compared to non-biobased products. 

However, this is not backed up by a 

product life-cycle analysis. 

Response: The aims of the labeling 

program are to increase the purchase 

and use of sustainable biobased 

products while providing ‘‘green’’ jobs 

and new markets for farmers, 

manufacturers, and vendors. USDA is 

hosting an informational BioPreferred 

Program Web site and requires 

manufacturers and vendors to provide 

relevant information concerning their 

products for posting on this site so that 

purchasers may access the information 

for use in making purchasing decisions. 

Comment: One environmental group 

commenter states that the proposed 

criteria for Biopreferred Products 

include: ‘‘Renewable domestic 

agricultural materials and forestry 

materials.’’ These criteria raise some 

important questions such as: (i) Does the 

word ‘‘renewable’’ describe just 

agricultural products, or also forestry 

materials? It should be clarified that 

renewable modifies both agriculture and 

forestry products. 

(ii) What is the definition of 

renewable? Products derived from 

logging mature and old-growth forests, 

or habitat of imperiled or declining 

species, or short-rotation logging are not 

renewable and should be excluded. 

Response: The statutory definition 

refers to ‘‘biological products, including 

renewable domestic agricultural 

materials and forestry materials.’’ 7 

U.S.C. 8101(4). USDA considers the 

qualifier ‘‘domestic,’’ as well as the 

qualifier ‘‘renewable,’’ to apply to both 

agricultural materials and forestry 

materials. The Guidelines for 

implementing the BioPreferred Program 

include the following definition for the 

term ‘‘forestry materials’’: ‘‘materials 

derived from the practice of planting 

and caring for forests and the 

management of growing timber. Such 

materials must come from short rotation 

woody crops (less than 10 years old), 

sustainably managed forests, wood 

residues, or forest thinnings.’’ Thus, 

products derived from mature and old 

growth forests would be excluded. 

Criteria for Obtaining Certification— 

Criterion 2: Minimum Biobased Content 

Comment: One industry organization 

commenter states that it should be made 

clear at the beginning of the rule with 

a definition or in every criterion that 

biobased content is verified based on an 

analytical test (ASTM Method D6866). 

Response: USDA points out that the 

definition of ‘‘biobased content’’ in this 

subsection clearly states that ‘‘For 

BioPreferred Products (products that 

have been identified for Federal 

preferred procurement), the biobased 

content shall be defined and determined 

as specified in the applicable section of 

subpart B of part 2902. For all other 

products, 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.’’ 

Comment: One industry organization 

commenter states that criterion 2 seems 

to duplicate criterion 1. The commenter 

states that the term ‘‘significant part’’ 

(from criterion 1) would be the same as 

‘‘at or above its applicable minimum 

biobased content’’ (from criterion 2). The 

commenter states that criterion 2 needs 

to be more clear to distinguish it from 

criterion 1. 

Response: USDA continues to believe 

that it is important to retain the 

language of both Criterion 1 and 

Criterion 2. Criterion 1 states that a 

biobased product must be composed ‘‘in 

whole or significant part of biological 

products, including renewable domestic 

agricultural materials and forestry 

materials; or (B) an intermediate 

ingredient or feedstock.’’ Criterion 2 

expands upon this criterion by further 

explaining how ‘‘significant’’ is 

determined for each type of product 

within the three biobased product 

groups: BioPreferred Products (those 

that have been identified for preferred 

Federal purchasing), finished biobased 

products that are not currently 

BioPreferred Products, and products 

that are intermediate ingredients or 

feedstocks that are also not currently 

recognized as BioPreferred Products. 

Comment: One industry organization 

commenter believes that any biobased 

claim on a product with less than 95 

percent biobased content should not be 

permitted to use the ‘‘artwork’’ or 

certification mark. It may, however, 

state ‘‘made with * * *’’ based on the 

amount of biobased material verified in 

the product where the claim is being 

made (not in small print that is not 

readily apparent to the consumer). 

While this was partially addressed by 

requiring the product statement with the 

artwork, allowing the use of the artwork 

is misleading. This program will 

mislead consumers into thinking they 

are purchasing a biobased product that 

has better attributes than other products. 


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3The definition of ‘‘intermediate ingredient or 

feedstock’’ found in the 2008 Farm Bill is as follows: 

‘‘The term ‘intermediate ingredient or feedstock’ 

means 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 are subsequently used to 

make a more complex compound or product.’’ 

Response: USDA continues to believe 

that the goal of program is to encourage 

the production and purchase of 

biobased products. Rather than being 

exclusionary, USDA thinks it is 

important to set the minimum biobased 

content for items at levels that will 

allow for a larger number of participants 

while maintaining meaningful 

standards. This will further the goals of 

the program by allowing for greater 

manufacturer and vendor participation, 

greater purchasing and, as a 

consequence, greater awareness of the 

BioPreferred Program. 

Comment: One individual commenter 

noted that ASTM test method D6866 has 

been renamed for simplicity and to 

better reflect the broad applicability of 

the test method. The final rule should 

reflect this change. The title of the 

method is now ‘‘Standard Test Methods 

for Determining the Biobased Content of 

Solid, Liquid, and Gaseous Samples 

Using Radiocarbon Analysis.’’ 

Response: USDA agrees with the 

commenter and has revised the rule to 

reflect this test method name change. 

Criteria for Obtaining Certification— 

Criterion 2: Minimum Biobased 

Content—Products That Are 

Intermediate Ingredients or Feedstocks 

That Are Not Within Product Categories 

Identified for Federal Preferred 

Procurement 

Comment: One industry association 

commenter states that USDA has 

provided a definition of ‘‘intermediate 

ingredients or feedstocks’’ that varies 

from the statutory definition.3 In the 

proposed rule, USDA adds the following 

language to the definition, ‘‘For the 

purposes of this subpart, intermediate 

ingredients or feedstocks do not include 

raw agricultural or forestry materials, 

but represent those materials that can be 

put into a new cycle of production and 

finishing processes to create finished 

materials, ready for distribution and 

consumption.’’ USDA provides no 

justification for this additional language 

which is ambiguous and should not be 

included in the labeling rule. 

Response: USDA believes that the 

additional language does not change the 

definition in any significant way, but 

simply further clarifies USDA’s intent to 

exclude raw agricultural or forestry 

materials from the labeling program at 

this time. USDA further believes that it 

is important to include this language in 

the regulatory text (i.e., the text of part 

2904) rather than only presenting it in 

the preamble. 

Comment: One industry commenter 

states that, as proposed, the default 

minimum for intermediate ingredients 

and feedstocks is equal to the default 

minimum for finished products. 

Regardless of what the default minimum 

is in the final rule, it is still unclear how 

the minimum biobased content of a 

feedstock translates into the minimum 

biobased content of the final product. If 

the feedstock is above the minimum, but 

the finished product is below the 

minimum due to other non-biobased 

ingredients, would that finished product 

be eligible? Conversely, if a feedstock 

were below the minimum, but the 

finished product above the minimum 

due to other biobased ingredients, 

would that finished product be eligible 

for the certification mark? The 

commenter requested that USDA 

provide additional clarity on this 

matter. 

Response: The commenter asks if the 

feedstock is above the minimum, but the 

finished product is below the minimum 

due to other non-biobased ingredients, 

is the finished product eligible? No, the 

finished product in this example would 

not be eligible for use of the certification 

mark as the finished product would not 

meet the 25 percent minimum biobased 

content requirement. However, any 

biobased component of the finished 

product with a minimum 25 percent 

biobased content itself would be eligible 

for use of the mark as a biobased 

feedstock. Alternatively, if a finished 

product composed of several biobased 

feedstocks of varying percentages of 

biobased content has a biobased content 

in sum that equals or exceeds 25 

percent, this finished product would be 

eligible for use of the mark, though not 

all of its individual components may be 

eligible. 

Criteria for Obtaining Certification— 

Alternative Minimum Biobased Content 

Analysis 

Comment: One industry commenter 

agrees with the proposal to have a 

procedure whereby manufacturers, 

vendors, and trade associations can 

request an alternative minimum 

biobased content for products which are 

not within a designated category. The 

commenter encouraged USDA to ensure 

that this procedure be as streamlined as 

possible and suggested that leveraging 

the designation process may be a route 

to streamlining. 

One industry commenter opposes the 

concept of allowing manufacturers to 

apply for alternative applicable 

minimum biobased contents. 

One industry organization commenter 

agrees with USDA’s approach to the 

establishment of alternative minimum 

contents for the labeling program. 

However, the commenter states that the 

proposed rule provides the opportunity 

to request that USDA approve an 

alternative to the default content 

percentage for finished products that do 

not fall within a USDA designated item 

category but that the proposed rule 

language does not provide this same 

option for intermediate ingredients and 

feedstocks. The preamble to the rule 

indicates that USDA intended that the 

same option be available for 

intermediate ingredients and feedstocks. 

The commenter strongly supports this 

provision for finished products as well 

as intermediate ingredients and 

feedstocks and requests that USDA 

correct the final rule language so the 

‘‘alternative applicable minimum 

biobased content’’ provision is included 

for intermediate ingredients and 

feedstocks. 

Response: USDA continues to believe 

that offering a procedure whereby 

manufacturers, vendors, and trade 

associations can request an alternative 

minimum biobased content for products 

is in the best interest of the labeling 

program. USDA agrees with the 

commenter that the intent of the 

program is to allow, under consultation 

with USDA, an alternative minimum 

biobased content for intermediate 

ingredients and feedstocks as well as 

finished products that are not currently 

BioPreferred Products. USDA has 

revised the appropriate rule language 

(section 2904.4) to reflect this intent. 

Initial Approval Process—Justification 

for Required Information 

Comment: One biobased industry 

commenter states that the proposed rule 

requires that each finished product be 

tested under ASTM D6866. The 

commenter states that they have eight 

hydraulic oils that can be listed under 

the program and each has exactly the 

same feedstock as the biobased content. 

The commenter recommends that they 

be able to certify in a lab per the 

proposed rule the common feedstock (in 

this case vegetable oil) as biobased and 

then be able to use that feedstock as a 

basis to calculate finished product 

biobased content. The commenter states 

that the number of products they have, 

given that many have only very slightly 

different viscosities and additives, will 

result in more testing costs than needed 

and cause them to carefully evaluate 

whether they should list them on the 

program based on the testing costs. The 


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commenter thinks this recommendation 

ensures the program standards are met 

and allows a low cost of participation. 

Response: USDA agrees with the 

commenter’s recommendation and will 

allow representative content testing to 

suffice provided the product 

formulation does not vary more than 3 

percent for multiple products with a 

common feedstock. This will facilitate 

manufacturers and vendors more 

rapidly and economically adding more 

biobased products to the labeling 

program without unnecessary regulatory 

obstacles. 

Initial Approval Process—BEES/Life 

Cycle Analysis 

Comment: One industry commenter 

states that designated biobased products 

were required to be evaluated using life 

cycle assessment (LCA), specifically 

using the Building for Environmental 

and Economic Sustainability (BEES) 

analyses. With the BEES analyses, 

purchasers have been able to better 

understand the environmental impacts 

and aspects of biobased products. By 

undertaking BEES analyses, biobased 

product manufacturers have been able 

to set themselves apart from other 

manufacturers in their proactive stance 

toward environmental issues, thereby 

generating environmental awareness in 

the biobased community and beyond. 

The commenter is very concerned that 

the proposed labeling program has 

eliminated the requirement to perform 

an LCA. The commenter presented the 

following concerns: 

A. Biobased products potentially have 

significant impacts on climate change, 

biodiversity, food security, and many 

other impact categories. Without the 

application of LCA to these products, it 

is impossible to tell what actions should 

be pursued to make these products more 

environmentally friendly. 

B. By omitting the requirement for an 

LCA-based labeling program, USDA is 

losing a major opportunity toward the 

global competitiveness of U.S. 

Agricultural Products. 

C. USDA’s proposed biobased 

certification mark does not follow the 

international consensus standards on 

Ecolabels (the ISO 14020 series) because 

it does not take environmental life cycle 

consideration into account. 

D. USDA is missing an opportunity to 

build overall LCA capacity and 

competitiveness in the U.S. Requiring 

LCAs of biobased products would help 

supply U.S. average data on their 

environmental impacts. 

The commenter urges USDA to 

reconsider the elimination of 

environmental LCAs from their 

biobased products labeling scheme. Its 

inclusion made the program a strong 

driver for sustainability and helped 

biobased American products be more 

competitive not only through Federal 

purchases but also in national and 

international markets. 

One environmental group states that 

the rules should reflect the carbon 

consequences of the underlying 

production processes, including longterm, life-cycle effects. The simple fact 

of being biobased does not guarantee 

that a product is preferred from the 

standpoint of environmental or social 

values. It is far better to conduct a more 

comprehensive evaluation of the lifecycle impacts of alternative products. 

Response: USDA has given extensive 

consideration to the subject of LCA and, 

specifically, the BEES analysis. This 

subject was the primary topic of a 

public meeting hosted by USDA in 

Washington, DC on January 5, 2010 

(visit the BioPreferred Program Web site 

to read a transcript of the meeting). 

Opinions vary widely among Federal 

agency personnel, industry 

representatives, members of the 

academic community, and the general 

public regarding the accuracy of, and 

the usefulness of, the results of these 

analyses. USDA is currently continuing 

its efforts to formulate a final decision 

on any requirements to perform LCA 

analyses on products in conjunction 

with the BioPreferred Program. At this 

time, USDA is performing BEES 

analyses on a small number of sample 

products within each product category 

as part of the identification of product 

categories for Federal preferred 

procurement. For the voluntary labeling 

program, the only requirement is that 

claims made by manufacturers regarding 

the environmental or life cycle benefits 

of their labeled products must be 

supported by appropriate 

documentation. USDA believes this 

requirement is a reasonable way to 

discourage false or undocumented 

claims on labeled products. Once USDA 

has made a final decision about the role 

of LCA or environmental analyses for 

products identified and certified by the 

BioPreferred Program, that decision and 

any associated requirements for 

participants in the program will be 

announced in the Federal Register with 

an opportunity for public comment. 

Violations—Audit Program 

Comment: One industry organization 

commenter believes that USDA should, 

as proposed, implement its own audit 

program, with particular focus on 

ensuring that the biobased content of 

the products actually being marketed 

with the certification mark meet the 

minimum criteria. USDA’s enforcement 

program should also be directed to take 

action against those who use the 

certification mark or create a similar 

label of their own and place it on 

products without the USDA biobased 

product certification. The commenter 

urges USDA to add explicit language to 

its proposed rule to cover violations and 

enforcement mechanisms for ‘‘Use of the 

Certification Mark Without 

Certification,’’ which would include 

using the certification mark or a 

facsimile or other artwork or statements 

that imply a product is a ‘‘USDA 

Certified Biobased Product’’ when it is 

not. In addition, USDA should work 

closely with the FTC to encourage FTC 

to pursue its enforcement authority 

against any stakeholder who makes 

misleading or false claims that state or 

imply that they have USDA certification 

to use the certification mark when they 

do not. 

To maintain the integrity of the mark, 

one industry commenter supports a 

strong and fair product audit and 

certification mark enforcement program 

and believes that USDA should, as 

proposed, implement its own audit 

program and the $500 fee suggested 

should be used to set up such program. 

One individual commenter does not 

believe it is a good use of taxpayer 

dollars to inspect manufacturer and 

vendor facilities (including their 

records, etc.) as part of a random audit 

program. This will be very costly and 

time consuming, at a time when the 

public eye on government waste is at a 

high point. The commenter states that 

simply visiting retail facilities and 

testing the biobased content of labeled 

products purchased from those facilities 

is the best way to conduct the audit 

program. That approach will address the 

most important aspects of an audit 

program. 

One nonprofit organization states that, 

as with any labeling program, they do 

not believe that affidavits from 

manufacturers suffice for label 

certification and that without adequate 

verification, testing and inspection that 

a program of this size would not be able 

to maintain integrity over time and 

ultimately would cloud an already 

murky green labeling marketplace. 

Response: USDA received several 

comments for and against the 

imposition of an auditing requirement. 

USDA continues to believe that 

adequate recordkeeping and auditing 

are necessary to ensure the standards of 

the program and will work with other 

agencies, as appropriate, to make certain 

that manufacturers and vendors comply 

with all labeling program regulations. 


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Violations—Other Remedies 

Comment: One government agency 

commenter states that, if a manufacturer 

of a labeled product were found to be 

in violation of the labeling rule 

requirements, USDA could supply the 

name of the manufacturer to the General 

Services Administration (GSA) and they 

would add the name to the Excluded 

Parties List. This list is checked by 

buyers as part of a responsibility 

determination before making an award, 

so if the manufacturer’s/vendor’s name 

is on the list, they would not be 

awarded a contract with the Federal 

government. 

Response: The proposed rule (at 74 

FR 38316) already includes the penalty 

suggested by the commenter. It states 

that, in cases of violations, ‘‘* * * 

USDA may pursue suspension or 

debarment of the entities involved in 

accordance with part 3017 of this title.’’ 

As of the publication date of the 

proposed rule, part 3017 provided for 

the inclusion of a name on GSA’s 

Excluded Parties List System once the 

party is suspended or debarred. 

V. Regulatory Information 

A. Executive Order 12866: Regulatory 

Planning and Review 

Executive Order 12866 requires 

agencies to determine whether a 

regulatory action is ‘‘significant.’’ This 

final rule has been reviewed under 

Executive Order (EO) 12866 and has 

been determined to be significant. 

Today’s rule establishes a voluntary 

labeling program that allows 

manufacturers and vendors of certified 

biobased products to use the ‘‘USDA 

Certified Biobased Product’’ certification 

mark. Although the labeling program is 

voluntary, there will be costs associated 

with meeting the criteria for, and 

applying for, certification to use the 

label. 

1. Costs of the Rule 

The primary costs associated with 

participating in this program are those 

for developing applications, testing to 

document the biobased content of 

products, providing information to 

USDA for posting by USDA on the 

USDA BioPreferred Program Web site, 

maintaining applicable records, and 

redesigning the product packaging to 

incorporate the certification mark. 

USDA estimates that the combined 

annualized cost of the voluntary 

program to manufacturers and vendors 

would average approximately 

$2,813,811 per year for the first three 

years of the program. USDA estimates 

an average of 352 manufacturers and 

vendors per year will submit 

applications to participate in the 

labeling program for the first three years 

of the program. This yields an average 

annualized cost per manufacturer/ 

vendor of approximately $7,994. 

The level of presumed impact is not 

expected to exceed $100 million 

because of the offsetting nature of the 

voluntary labeling program (i.e., an 

increase in demand for biobased 

products is likely to be offset by a 

decrease in demand for non-biobased 

products). While USDA believes that the 

program is likely to have a widespread 

effect on the marketplace (including 

shifting purchases away from nonbiobased products toward the purchase 

of biobased products), it is not expected 

to have a widespread adverse effect on 

the economy. Additional information 

regarding the primary industry sectors 

expected to be affected by today’s final 

rule is presented under the discussion 

of the Regulatory Flexibility Act below. 

2. Benefits of the Rule 

As an integral part of USDA’s 

BioPreferred Program, the voluntary 

labeling program may raise public 

awareness of, and increase the demand 

for, biobased products. While the 

benefits of the labeling program are not 

quantifiable at this time, an increased 

demand for biobased products will, in 

turn, achieve the benefits as outlined in 

the objectives of section 9002: To 

increase domestic demand for many 

agricultural commodities that can serve 

as feedstocks for production of biobased 

products; to spur development of the 

industrial base through value-added 

agricultural processing and 

manufacturing in rural communities; 

and to enhance the Nation’s energy 

security by substituting biobased 

products for products derived from 

imported oil and natural gas. On a 

national and regional level, today’s final 

rule may result in expanding and 

strengthening markets for biobased 

materials used in these items. The 

program is also expected to promote 

economic development for biobased 

product manufacturers and vendors by 

creating new jobs and providing new 

markets for farm commodities. 

B. Regulatory Flexibility Act (RFA) 

Under the RFA, an agency is required 

to prepare an initial regulatory 

flexibility analysis of any rule subject to 

notice and comment rulemaking 

requirements under the Administrative 

Procedure Act or any other statute 

unless the agency can certify that the 

rule will not have a significant 

economic impact on a substantial 

number of small entities, and the agency 

can provide a factual basis to support 

the certification. Based upon its 

assessment of the projected impact of 

this rulemaking, USDA certifies that the 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Small entities include small 

businesses, small organizations, and 

small governmental jurisdictions. Of 

these three types of entities, the labeling 

requirements in today’s rulemaking 

would be applicable to small businesses 

only. For purposes of assessing the 

impacts on small entities, a small 

business is defined by the RFA using 

the definitions for small business based 

on Small Business Administration 

(SBA) size standards, which vary 

depending on the type of business (e.g., 

less than 500 employees, less than 1,000 

employees). Most of the manufacturing 

companies and vendors associated with 

products within items that USDA has 

designated or proposed for designation 

would qualify as small businesses under 

SBA guidelines. 

To assess the potential effects of this 

rulemaking on small businesses, USDA 

conducted a review of U.S. Census 

Bureau data compiled by the Small 

Business Administration’s (SBA) Office 

of Advocacy. USDA identified six North 

American Industrial Classification 

System (NAICS) categories under which 

many biobased products are 

manufactured: Petroleum lubricating oil 

and grease manufacturing, plastics 

material and resin manufacturing, soap 

and other detergent manufacturing, 

urethane and other foam product 

(except polystyrene) manufacturing, 

carpet and rug mills manufacturing, and 

fertilizer manufacturing. USDA then 

used the Census Bureau data to 

determine the number of small 

businesses in those categories and the 

average total receipts for those 

businesses. This data and the associated 

analysis was valuable in determining 

whether the rulemaking would have a 

significant economic impact on a 

substantial number of small businesses. 

Based upon the data and accompanying 

analysis, USDA identified 2,493 small 

businesses in the six identified 

manufacturing categories. The total 

receipts for these small businesses 

averaged $11.4 million. USDA will note, 

however, that this average receipt data 

does not convey the differences between 

certain manufacturing categories, such 

as those reflected between the plastics 

materials and carpet manufacturing 

sectors. Additional information 

supporting USDA’s analysis is available 

in the following table. USDA requests 

comments on the quality of this analysis 

and ways to improve it. 


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NAICS category * 

Number 

of small 

businesses 

Small business 

total receipts 

($ in thousands) 

Average small 

business receipts 

($ in thousands) 

Petroleum lubricating oil and grease manufacturing ............................................................... 261 3,354,088 12,850.91 

Plastics material and resin manufacturing .............................................................................. 475 10,929,491 23,009.45 

Soap and other detergent manufacturing ................................................................................ 623 5,351,973 8,590.65 

Urethane and other foam product (except polystyrene) manufacturing ................................. 413 2,815,231 6,816.54 

Carpet and rug mills manufacturing ........................................................................................ 258 1,733,880 6,720.47 

Fertilizer manufacturing ........................................................................................................... 463 4,133,533 8,927.72 

* Information provided in this table is available on the SBA’s Office of Advocacy Web site and was derived from the U.S. Census Bureau’s 

2007 Survey of Business Owners. The information can be found at: http://www.sba.gov/advo/research/data.html#susb. 

Census Bureau data on firm size also 

indicates that, collectively, more than 

91 percent of the firms in the six 

categories meet the SBA definition of 

small business. Despite the high 

percentage of program participants that 

will be small businesses, the total 

number of small businesses affected by 

this rulemaking will not be substantial. 

USDA estimates that 352 manufacturers 

and vendors will apply to participate in 

the program annually. That number 

would represent around 14 percent of 

the total small businesses identified in 

the six NAICS categories identified 

above. The 14 percent figure can likely 

be further reduced when considering 

that the six NAICS categories represent 

only product manufacturing and not 

product vendors. In addition, the 352 

manufacturers and vendors cited above 

does not reflect solely small businesses 

since large businesses will also be 

eligible to participate in the program. 

The benefit-cost analysis USDA 

conducted for the rule, discussed in 

Section VI.A.1. above, indicates that the 

annualized cost associated with 

participating in the voluntary labeling 

program is about $7,994 on average and, 

relative to total receipts by small 

businesses in the NAICS categories 

where many biobased products are 

manufactured, appears not to represent 

an undue burden in most cases. 

In some cases, however, where a 

small business may experience a burden 

of conducting multiple biobased content 

tests as a result of manufacturing 

multiple biobased products, USDA has 

decided to reduce the testing burden. As 

indicated earlier in the preamble of this 

rule, USDA has agreed to allow 

representative product testing for 

products with a similar formulation. 

This allowance should further reduce 

any undue burden faced by small 

businesses participating in the program. 

Moreover, participation in the 

voluntary labeling program would 

provide manufacturers and vendors a 

marketing advantage over those who 

choose not to participate. This 

marketing advantage could lead to 

greater sales, thus offsetting some of the 

costs associated with participating in 

the labeling program. 

Finally, the program requirements for 

the voluntary labeling program are 

applicable to all manufacturers and 

vendors of biobased products seeking to 

use the certification mark under this 

program, regardless of the size of their 

business. For instance, all 

manufacturers and vendors are required 

to submit an application, conduct 

certain testing, and provide to USDA 

certain information that USDA will post 

to the BioPreferred Program Web site. 

These requirements are necessary to 

certify biobased products and are 

independent of the size of the 

manufacturer or vendor. The integrity of 

the labeling program would be 

compromised if biobased products 

manufactured by small businesses were 

allowed to be subject to different criteria 

in order to reduce costs to small 

businesses. 

C. Executive Order 12630: 

Governmental Actions and Interference 

With Constitutionally Protected Property 

Rights 

This rule has been reviewed in 

accordance with Executive Order 12630, 

Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights, and does not contain policies 

that would have implications for these 

rights. 

D. Executive Order 13132: Federalism 

This rule does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

Provisions of this rule will not have a 

substantial direct effect on States or 

their political subdivisions or on the 

distribution of power and 

responsibilities among the various 

government levels. 

E. Unfunded Mandates Reform Act of 

1995 

This rule contains no federal 

mandates as defined under the 

regulatory provisions of Title II of the 

Unfunded Mandates Reform Act of 1995 

(UMRA), 2 U.S.C. 1531–1538, for State, 

local, and tribal governments, or the 

private sector. Therefore, a statement 

under section 202 of UMRA is not 

required. 

F. Executive Order 12372: 

Intergovernmental Review of Federal 

Programs 

For the reasons set forth in the Final 

Rule Related Notice for 7 CFR part 3015, 

subpart V (48 FR 29115, June 24, 1983), 

this program is excluded from the scope 

of Executive Order 12372, which 

requires intergovernmental consultation 

with State and local officials. This 

program does not directly affect State 

and local governments. 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Today’s rule does not significantly or 

uniquely affect the communities of 

Indian tribal governments. The rule 

does not impose any mandate on tribal 

governments or impose any duties on 

these entities. Thus, no further action is 

required under Executive Order 13175. 

H. Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

through 3520), the information 

collection provisions associated with 

this final rule have been submitted to 

the Office of Management and Budget 

(OMB) for approval as a new collection 

and assigned OMB number 0503–XXXX. 

In the publication of the proposed rule 

on July 31, 2009, USDA solicited 

comments on the estimated burden. 

USDA received no public comment 

letters in response to this solicitation. 

This information collection requirement 

will not become effective until approved 

by OMB. Upon approval of this 

information collection, USDA will 

publish a notice in the Federal Register. 

I. E-Government Act Compliance 

USDA is committed to compliance 

with the E-Government Act to promote 

the use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to government information and 

services, and for other purposes. For 


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information pertinent to E-Government 

Act compliance related to this rule, 

please contact Ron Buckhalt at (202) 

205–4008. 

J. Small Business Regulatory 

Enforcement Fairness Act 

The rule is not a major rule under the 

Small Business Regulatory Enforcement 

Fairness Act, 5 U.S.C. 804(2). This rule 

will not have an annual effect on the 

economy of $100 million or more; will 

not cause a major increase in costs or 

prices for consumers, individual 

industries, Federal, State, or local 

government agencies, or geographic 

regions; and does not have significant 

adverse effects on competition, 

employment, investment, productivity, 

innovation, or the ability of U.S.-based 

enterprises to compete with foreignbased enterprises. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, that includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. USDA has 

submitted a report containing this rule 

and other required information to the 

U.S. Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. 

List of Subjects in 7 CFR Part 2904 

Biobased products, Labeling. 

For the reasons stated in the 

preamble, the U.S. Department of 

Agriculture (USDA) is amending 7 CFR 

chapter XXIX as follows: 

CHAPTER XXIX—OFFICE OF ENERGY, 

DEPARTMENT OF AGRICULTURE 

■ 1. A new part 2904 is added to chapter 

XXIX to read as follows: 

PART 2904—VOLUNTARY LABELING 

PROGRAM FOR BIOBASED 

PRODUCTS 

Sec. 

2904.1 Purpose and scope. 

2904.2 Definitions. 

2904.3 Applicability. 

2904.4 Criteria for product eligibility to use 

the certification mark. 

2904.5 Initial approval process. 

2904.6 Appeals process. 

2904.7 Requirements for the use of the 

certification mark. 

2904.8 Violations. 

2904.9 Recordkeeping requirements. 

2904.10 Oversight and monitoring. 

Authority: 7 U.S.C. 8102. 

PART 2904—VOLUNTARY LABELING 

PROGRAM FOR BIOBASED 

PRODUCTS 

§ 2904.1 Purpose and scope. 

The purpose of this part is to set forth 

the terms and conditions for voluntary 

use of the ‘‘USDA Certified Biobased 

Product’’ certification mark. This part 

establishes the criteria that biobased 

products must meet in order to be 

eligible to become certified biobased 

products to which the ‘‘USDA Certified 

Biobased Product’’ mark can be affixed, 

the process manufacturers and vendors 

must use to obtain and maintain USDA 

certification, and the recordkeeping 

requirements for manufacturers and 

vendors who obtain certification. In 

addition, this part establishes 

specifications for the correct and 

incorrect uses of the certification mark, 

which apply to manufacturers, vendors, 

and other entities. Finally, this part 

establishes actions that constitute 

voluntary labeling program violations. 

§ 2904.2 Definitions. 

Applicable minimum biobased 

content. The biobased content at or 

above the level set by USDA to qualify 

for use of the certification mark. 

ASTM International (ASTM). 

American Society for Testing and 

Materials is a nonprofit organization 

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 

biobased carbon in the material or 

product expressed as a percent of 

weight (mass) of the total organic carbon 

in the material or product. For 

BioPreferred Products (products that 

have been identified for Federal 

preferred procurement), the biobased 

content shall be defined and determined 

as specified in the applicable section of 

subpart B of part 2902. For all other 

products, 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. A product 

determined by the Secretary to be a 

commercial or industrial product (other 

than food or feed) that is: 

(1) Composed, in whole or in 

significant part, of biological products, 

including renewable domestic 

agricultural materials and forestry 

materials; or 

(2) An intermediate ingredient or 

feedstock. For the purposes of this 

subpart, the term ‘biobased product’ 

does not include motor vehicle fuels, 

heating oil, electricity produced from 

biomass, or any mature market 

products. 

BioPreferred Product. A biobased 

product that meets or exceeds minimum 

biobased content levels set by USDA, 

and that is found within any of the 

product categories that have been 

identified, in subpart B of 7 CFR part 

2902, whose products within are 

eligible for Federal preferred 

procurement/purchasing. 

Certification mark. A combination of 

the certification mark artwork (as 

defined in this subpart); one of three 

statements identifying whether the 

USDA certification applies to the 

product, the package, or both the 

product and package; and, where 

applicable, the letters ‘‘FP’’ to indicate 

that the product is within a designated 

product category and eligible for Federal 

preferred procurement. The certification 

mark is owned, and its use is managed 

by, USDA (standard trademark law 

definition applies). 

Certification mark artwork. The 

distinctive image, as shown in Figures 

1–3, that identifies products as USDA 

Certified. 


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Certified biobased product. A 

biobased product for which the 

manufacturer or vendor of the product 

has received approval from USDA to 

affix to the product the ‘‘USDA Certified 

Biobased Product’’ certification mark. 

Days. As used in this part means 

calendar days. 

Designated item. For the purposes of 

this part means product categories 

(generic groupings of products that 

perform the same function) within 

which the products have been afforded 

a procurement preference by Federal 

agencies under the BioPreferred 

Program. These BioPreferred Products 

have been identified for Federal 

preferred procurement under subpart B 

of part 2902 of this title. 

Designated representative. An entity 

authorized by a manufacturer or vendor 

to affix the USDA certification mark to 

the manufacturer’s or vendor’s certified 

biobased product or its packaging. 

Intermediate ingredients or 

feedstocks. Materials or compounds 

made in whole or in significant part 

from biological products, including 

renewable agricultural materials 

(including plant, animal, and marine 

materials) or forestry materials, that are 

subsequently used to make a more 

complex compound or product. For the 

purposes of this subpart, intermediate 

ingredients or feedstocks do not include 

raw agricultural or forestry materials, 

but represent those materials that can be 

put into a new cycle of production and 

finishing processes to create finished 

materials, ready for distribution and 

consumption. 

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 of the requirements of the ISO 

9001 standard, but that is not required 

to be ISO 9001 certified. ISO 9001 refers 

to the International Organization for 

Standardization’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. 

Manufacturer. An entity that performs 

the necessary chemical and/or 

mechanical processes to make a final 

marketable product. 

Mature market products. Biobased 

products that are not eligible for Federal 

preferred procurement or labeling as 

defined under subpart B of part 2902 of 

this title because they had significant 

national market penetration in 1972. 

Other entity. Any person, group, 

public or private organization, or 

business other than USDA, or 

manufacturers or vendors of biobased 

products that may wish to use the 

‘‘USDA Certified Biobased Product’’ 

certification mark in informational or 

promotional material related to a 

certified biobased product. 

Program Manager. The manager of the 

BioPreferred Program. 

USDA. The United States Department 

of Agriculture. 

Vendor. An entity that offers for sale 

final marketable biobased products that 

are produced by manufacturers. 

§ 2904.3 Applicability. 

(a) Manufacturers, vendors, and 

designated representatives. The 

requirements in this part apply to all 

manufacturers and vendors, and their 

designated representatives, who wish to 

participate in the USDA voluntary 

labeling program for biobased products. 

Manufacturers and vendors wishing to 

participate in the voluntary labeling 

program are required to obtain and 

maintain product certification. 

(b) Other entities. The requirements in 

this part apply to other entities who 

wish to use the certification mark in 

promoting the sales or the public 

awareness of certified biobased 

products. 

§ 2904.4 Criteria for product eligibility to 

use the certification mark. 

A product must meet each of the 

criteria specified in paragraphs (a) and 

(b) of this section in order to be eligible 

to receive biobased product 

certification. 

(a) Biobased product. The product for 

which certification is sought must be a 

biobased product as defined in § 2904.2 

of this part. 

(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) through 

(b)(4) of this section. 

(1) BioPreferred Products. 

(i) Product is within a single product 

category. If the product is within a 

single product category that, at the time 

the application for certification is 

submitted, has been designated by 

USDA for Federal preferred 

procurement, the applicable minimum 

biobased content is the minimum 

biobased content specified for the item 

as found in subpart B of 7 CFR part 

2902. 

(ii) Product is within multiple product 

categories. If a biobased product is 

marketed within more than one product 

category identified for preferred Federal 

purchasing, uses the same packaging for 

each product, and the applicant seeks 

certification of the product, the 

product’s biobased content must meet or 

exceed the specified minimum biobased 

content for each of the applicable 

product categories in order to use the 

certification mark on the product. 

However, if the manufacturer packages 

the product differently for each product 

category, then the applicable minimum 

biobased contents are those established 

under paragraph (b)(1)(i) of this section 

for each product category for which the 

applicant seeks to use the certification 

mark. 

(2) Finished biobased products that 

are not BioPreferred Products. 

(i) If the product is not an 

intermediate ingredient or feedstock, 

and is not within a product category 

eligible for Federal preferred 

procurement at the time the application 

for certification is submitted, the 

applicable minimum biobased content 

is 25 percent. Manufacturers, vendors, 

groups of manufacturers and/or 

vendors, and trade associations may 

propose an alternative applicable 

minimum biobased content for the 

product by developing, in consultation 

with USDA, 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 the product to be labeled. 

(ii) If a product certified under 

paragraph (b)(2)(i) of this section is 

within a product category that USDA 

subsequently designates for Federal 

preferred procurement, the applicable 

minimum biobased content shall 

become, as of the effective date of the 

final designation rule, the minimum 

biobased content specified for the item 

as found in subpart B of 7 CFR part 

2902. 

(3) Products that are intermediate 

ingredients or feedstocks. 

(i) If the product is an intermediate 

ingredient or feedstock that is not 

eligible for Federal preferred 

procurement at the time the application 

for certification is submitted, the 

applicable minimum biobased content 

is 25 percent. Manufacturers, vendors, 

groups of manufacturers and/or 

vendors, and trade associations may 

propose an alternative applicable 

minimum biobased content for the 

product by developing, in consultation 

with USDA, and conducting an analysis 

to support the proposed alternative 

applicable minimum biobased content. 


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If approved by USDA, the proposed 

alternative applicable minimum 

biobased content would become the 

applicable minimum biobased content 

for the intermediate ingredient or 

feedstock product to be labeled. 

(ii) If a product certified under 

paragraph (b)(3)(i) of this section is 

within a category that USDA 

subsequently designates for Federal 

preferred procurement, the applicable 

minimum biobased content shall 

become, as of the effective date of the 

final designation rule, the minimum 

biobased content specified for the item 

as found in subpart B of 7 CFR part 

2902. 

§ 2904.5 Initial approval process. 

(a) Application. Manufacturers and 

vendors seeking USDA approval to use 

the certification mark for an eligible 

biobased product must submit a USDAapproved application for each biobased 

product. A standardized application 

form and instructions are available on 

the USDA BioPreferred Program Web 

site (http://www.biopreferred.gov). The 

contents of an acceptable application 

are as specified in paragraphs (a)(1) 

through (a)(4) of this section. 

(1) General content. The applicant 

must provide contact information and 

product information including all brand 

names or other identifying information, 

biobased content and testing 

documentation, intended uses, and, if 

applicable, the corresponding product 

category classification for Federal 

preferred procurement. The applicant 

must attach to the application 

documentation demonstrating that the 

reported biobased content was tested by 

a third-party testing entity that is ISO 

9001 conformant. 

(2) Certifications. The applicant must 

certify in the application that the 

product for which use of the 

certification mark is sought is a 

biobased product as defined in § 2904.2 

of this part. 

(3) Commitments. The applicant must 

sign a statement in the application that 

commits the applicant to submitting to 

USDA the information specified in 

paragraph (c)(1) through (c)(4) of this 

section, which USDA will post to the 

USDA BioPreferred Program Web site, 

and to providing USDA with up-to-date 

information for posting on this Web site. 

(4) Application fee. Effective (date to 

be added after authority to collect fee is 

granted), applicants must submit an 

application fee of $500 with each 

completed application for certification. 

Instructions for submitting the 

application fee are available on the 

USDA BioPreferred Program Web site 

(http://www.biopreferred.gov), along 

with the application form and 

instructions. 

(b) Evaluation of applications. (1) 

USDA will evaluate each application to 

determine if it contains the information 

specified in paragraph (a) of this 

section. If USDA determines that the 

application is not complete, USDA will 

return the application to the applicant 

with an explanation of its deficiencies. 

Once the deficiencies have been 

addressed, the applicant may resubmit 

the application, along with a cover letter 

explaining the changes made, for reevaluation by USDA. USDA will 

evaluate resubmitted applications 

separately from first-time applications, 

and those with the earliest original 

application submittal date will be given 

first priority. 

(2)(i) USDA will evaluate each 

complete application to determine 

compliance with the criteria specified in 

§ 2904.4. USDA will provide a written 

response to each applicant within 60 

days after the receipt of a complete 

application, informing the applicant of 

whether the application has been 

conditionally approved or has been 

disapproved. 

(ii) For those applications that are 

conditionally approved, a notice of 

certification, as specified in paragraph 

(c) of this section, must be issued before 

the use of the certification mark can 

begin. 

(iii) For those applications that are 

disapproved, USDA will issue a notice 

of denial of certification and will inform 

the applicant in writing of each criterion 

not met. Applicants who receive a 

notice of denial of certification may 

appeal using the procedures specified in 

§ 2904.6. 

(c) Notice of certification. After 

notification that its application has been 

conditionally approved, the applicant 

must provide to USDA (for posting by 

USDA on the USDA BioPreferred 

Program Web site) the information 

specified in paragraphs (c)(1) through 

(c)(4) of this section. Once USDA 

confirms that the information is 

received and complete, USDA will issue 

a notice of certification to the applicant. 

Upon receipt of a notice of certification, 

the applicant may begin using the 

certification mark on the certified 

biobased product. 

(1) The product’s brand name(s), or 

other identifying information. 

(2) Contact information, including the 

name, mailing address, email address, 

and telephone number of the applicant. 

(3) The biobased content of the 

product. 

(4) A hot link directly to the 

applicant’s Web site (if available). 

(d) Term of certification. 

(1) The effective date of certification 

is the date that the applicant receives a 

notice of certification from USDA. 

Except as specified in paragraphs 

(d)(2)(i) through (d)(2)(iii) of this 

section, certifications will remain in 

effect as long as the product is 

manufactured and marketed in 

accordance with the approved 

application and the requirements of this 

subpart. 

(2)(i) If the product formulation of a 

certified product is changed such that 

the biobased content of the product is 

reduced to a level below that reported 

in the approved application, the existing 

certification will not be valid for the 

product under the revised conditions 

and the manufacturer or vendor, as 

applicable, and its designated 

representatives must discontinue 

affixing the certification mark to the 

product and must not initiate any 

further advertising of the product using 

the certification mark. USDA will 

consider a product under such revised 

conditions to be a reformulated product, 

and the manufacturer or vendor, as 

applicable, 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 product is changed such that 

the biobased content of the product is 

increased from the level reported in the 

approved application, the existing 

certification will continue to be valid for 

the product. 

(iii) If the applicable required 

minimum biobased content for a 

product to be eligible to display the 

certification mark is revised by USDA, 

manufacturers and vendors may 

continue to label their previously 

certified product only if it meets the 

new minimum biobased content level. 

In those cases where the biobased 

content of a certified product fails to 

meet the new minimum biobased 

content level, USDA will notify the 

manufacturer or vendor that their 

certification is no longer valid. Such 

manufacturers and vendors must 

increase the biobased content of their 

product to a level at or above the new 

minimum biobased content level and 

must re-apply for certification within 60 

days if they wish to continue to use the 

certification mark. Manufacturers and 

vendors who have re-applied for 

certification may continue using the 

existing certification mark until they 

receive notification from USDA on the 

results of their re-application for 

certification. 


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§ 2904.6 Appeal processes. 

An applicant for certification may 

appeal a notice of denial of certification 

to the Program Manager. Entities that 

have received a notice of violation, and 

manufacturers and vendors of certified 

biobased products who have received a 

notice of suspension or revocation, may 

appeal to the Program Manager. 

(a)(1) Appeals to the Program Manager 

must be filed within 30 days of receipt 

by the appellant of a notice of denial of 

certification, a notice of violation, a 

notice of suspension, or a notice of 

revocation. Appeals must be filed in 

writing and addressed to: Program 

Manager, USDA Voluntary Labeling 

Program for Biobased Products, Room 

361, Reporters Building, 300 Seventh 

Street, SW., Washington, DC 20024. 

(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 applicable program 

regulations, policies, or procedures, or 

otherwise was not proper. 

(b)(1) If the Program Manager sustains 

an applicant’s appeal of a notice of 

denial of certification, USDA will issue 

a notice of certification to the applicant 

for its biobased product. 

(2) If the Program Manager sustains a 

manufacturer’s or vendor’s appeal of a 

notice of violation, USDA will rescind 

the notice and no further action will be 

taken by USDA. 

(3) If the Program Manager sustains a 

manufacturer’s or vendor’s appeal of a 

notice of suspension, the manufacturer, 

vendor, and their designated 

representative(s) may immediately 

resume affixing the certification mark to 

the certified biobased product and 

USDA will reinstate the product’s 

information to the USDA BioPreferred 

Program Web site. 

(4) If the Program Manager sustains a 

manufacturer’s or vendor’s appeal of a 

notice of revocation, the manufacturer 

or vendor, and its designated 

representatives may immediately 

resume affixing the certification mark to 

the certified biobased product and sell 

and distribute the certified biobased 

product with the certification mark. In 

addition, USDA will reinstate the 

product’s information to the USDA 

BioPreferred Program Web site. 

(c) If the Program Manager sustains a 

manufacturer’s or vendor’s appeal of its 

product’s exclusion from the program, 

the manufacturers or vendors may then 

apply for certification to use the 

certification mark on that product, as 

specified in § 2904.5(a) of this part. 

(d) Appeals of any of the Program 

Manager’s decisions may be made to the 

USDA Assistant Secretary for 

Administration. Appeals must be made, 

in writing, within 30 days of receipt of 

the Program Manager’s decision and 

addressed to: Assistant Secretary for 

Administration, Room 209A, Whitten 

Building, 1400 Independence Avenue, 

SW., Washington, DC 20250–0103. If the 

Assistant Secretary for Administration 

sustains an appeal, the provisions of 

paragraph (b) of this section will apply. 

§ 2904.7 Requirements associated with the 

certification mark. 

(a) Who may use the certification 

mark? 

(1) Manufacturers and vendors. Only 

manufacturers and vendors who have 

received a notice of certification, or 

designated representatives of the 

manufacturer or vendor, may affix the 

official certification mark (in one of the 

three variations, as applicable) to the 

product or its packaging. A 

manufacturer or vendor who has 

received a notice of certification for a 

product under this part: 

(i) May use the certification mark on 

the product, its packaging, and other 

related materials including, but not 

limited to, advertisements, catalogs, 

specification sheets, procurement 

databases, promotional material, Web 

sites, or user manuals for that product, 

according to the requirements set forth 

in this section; and 

(ii) Is responsible for the manner in 

which the mark is used by its 

companies, as well as its designated 

representatives, including advertising 

agencies, marketing and public relations 

firms and subcontractors. 

(2) Other entities. 

(i) Other entities may use the mark to 

advertise or promote certified biobased 

products in materials including, but not 

limited to, advertisements, catalogs, 

procurement databases, Web sites, and 

promotional and educational materials, 

as long as the manufacturer or vendor of 

the product, or one of their designated 

representatives, has affixed the mark to 

the product or its packaging. 

(ii) Other entities may use the 

certification mark; the phrase ‘‘USDA 

Certified Biobased Product/Package/ 

Product & Package,’’ as applicable; and 

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 noncertified biobased product is certified. 

(b) Correct usage of the certification 

mark. 

(1) The certification mark can be 

affixed only to certified biobased 

products and their associated packaging. 

(2) The certification mark may be 

used in material including, but not 

limited to, advertisements, catalogs, 

procurement databases, Web sites, and 

promotional and educational materials 

to distinguish products that are certified 

for use of the label from those that are 

not certified. The certification mark may 

be used in advertisements for both 

certified biobased products and noncertified/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) The certification mark may be 

used without reference to a specific 

certified biobased product only when 

informing the public about the purpose 

of the certification mark. For example, 

the following or similar claim is 

acceptable: ‘‘Look for the ‘USDA 

Certified Biobased Product’ certification 

mark. It means that the product meets 

USDA standards for the amount of 

biobased content and the manufacturer 

or vendor has provided relevant 

information on the product to be posted 

on the USDA BioPreferred Program Web 

site.’’ This exception allows 

manufacturers, vendors, and other 

entities to use the certification mark in 

documents such as corporate reports, 

but only in an informative manner, not 

as a statement of product certification. 

(4) The certification mark may appear 

next to a picture of the product(s) or text 

describing it. 

(5) The certification mark must stand 

alone and not be incorporated into any 

other certification mark or logo designs. 

(6) The certification mark may be 

used as a watermark provided the use 

does not violate any usage restrictions 

specified in this part. 

(7) The text portion of the certification 

mark 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 certification 

mark. 

(1) The certification mark shall not be 

used on any product that has not been 

certified by USDA as a ‘‘USDA Certified 

Biobased Product.’’ 

(2) The certification mark shall not be 

used on any advertisements or 

informational materials where both 

certified biobased products and noncertified products are shown unless it is 

clear that the certification mark applies 

to only the certified biobased product(s). 

(3) The certification mark shall not be 

used to imply endorsement by USDA or 

the BioPreferred Program of any 

particular product, service, or company. 

(4) The certification mark shall not be 

used in any form that could be 

misleading to the consumer. 

(5) The certification mark shall not be 

used by manufacturers or vendors of 


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certified products in a manner 

disparaging to USDA or any other 

government body. 

(6) The certification mark shall not be 

used with an altered certification mark 

or incorporated into other label or logo 

designs. 

(7) The certification mark shall not be 

used on business cards, company 

letterhead, or company stationery. 

(8) The certification mark shall not be 

used in, or as part of, any company 

name, logo, product name, service, or 

Web site, except as may be provided for 

in this part. 

(9) The certification mark shall not be 

used in a manner that violates any of the 

applicable requirements contained in 

this part. 

(d) Imported products. The 

certification mark can be used only with 

a product that is certified by USDA 

under this part. The certification mark 

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) Contents of the certification mark. 

The certification mark shall consist of 

the certification mark artwork, the 

biobased content percentage, and one of 

the three variations of text specified in 

paragraphs (e)(1) through (e)(3) of this 

section, as applicable. 

(1) USDA Certified Biobased Product. 

(2) USDA Certified Biobased Product: 

Package. 

(3) USDA Certified Biobased Product 

& Package. 

(f) Physical aspects of the certification 

mark. The certification mark artwork 

may not be altered, cut, separated into 

components, or distorted in appearance 

or perspective. Certification marks that 

are applied to biobased products that 

have been designated for preferred 

Federal procurement will include the 

letters ‘‘FP’’ as part of the certification 

mark artwork. The certification mark 

must appear only in the colors specified 

in paragraphs (f)(1) through (f)(3) of this 

section, unless approval is given by 

USDA for an exception. 

(1) A multi-color version of the 

certification mark is preferred. The 

certification mark colors to be applied 

will be stipulated in the ‘‘Marketing 

Guides’’ document available on the 

USDA BioPreferred Program Web site 

(http://www.biopreferred.gov). 

(2) A one-color version of the 

certification mark may be substituted for 

the multi-color version as long as the 

one color used is one of the multi-color 

choices reapplied without modification. 

Further guidance on the one-color 

certification mark application will also 

be detailed in the ‘‘Marketing Guides.’’ 

(3) A black and white version of the 

certification mark is acceptable. 

(g) Placement of the certification 

mark. 

(1) The certification mark 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 certification mark shall 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, Web sites, and promotional 

and educational materials, the 

certification mark must appear near a 

picture of the product or the text 

describing it. 

(i) If all products on a page are 

certified biobased products, the 

certification mark may be placed 

anywhere on the page. 

(ii) If a page contains a mix of 

certified biobased products and noncertified products, the certification mark 

shall be placed in close proximity to the 

certified biobased products. An 

individual certification mark near each 

certified biobased product may be 

necessary to avoid confusion. 

(h) Minimum size and clear space 

recommendations for the certification 

mark. 

(1) The certification mark may be 

sized to fit the individual application as 

long as the correct proportions are 

maintained and the certification mark 

remains legible. 

(2) A border of clear space must 

surround the certification mark and 

must be of sufficient width to offset it 

from surrounding images and text and 

to avoid confusion. If the certification 

mark’s color is similar to the 

background color of the product or 

packaging, the certification mark in a 

contrasting (i.e., black, white) color may 

be used. 

(i) Where to obtain copies of the 

certification mark artwork. The 

certification mark artwork is available at 

the USDA BioPreferred Program Web 

site http://www.biopreferred.gov. 

§ 2904.8 Violations. 

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 § 2904.6. If 

certification for a product is revoked, 

the manufacturer or vendor whose 

certification has been revoked may seek 

re-certification for the product using the 

procedures specified under the 

provisions in § 2904.5. 

(b) Types of violations. Actions that 

will be considered violations of this part 

include, but are not limited to, the 

following specific examples: 

(1) Biobased content violations. The 

Program Manager will utilize occasional 

random testing of certified biobased 

products to compare the biobased 

content of the tested product with the 

product’s applicable minimum biobased 

content and the biobased content 

reported by the manufacturer or vendor 

in its approved application. Such testing 

will be conducted using ASTM Method 

D6866. USDA will provide a copy of the 

results of its testing to the applicable 

manufacturer or vendor. 

(i) If USDA 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 USDA testing shows that the 

biobased content is less than that 

reported by the manufacturer or vendor 

in its approved application, but is still 

equal to or greater than its applicable 

minimum biobased content(s), USDA 

will provide written notification to the 

manufacturer or vendor. The 

manufacturer or vendor 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 manufacturer or vendor can 

submit in the new application the 

biobased content reported to it by USDA 

in the written notification. 

(B) Alternatively, the manufacturer or 

vendor may elect to retest the product 

in question and submit the results of the 

retest in the new application. If the 

manufacturer or vendor elects to retest 

the product, it must test a sample of the 

current product. 

(2) Certification mark violations. 

(i) Any usage or display of the 

certification mark that does not conform 

to the requirements specified in 

§ 2904.7. 


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(ii) Affixing the certification mark to 

any product prior to issuance of a notice 

of certification from USDA. 

(iii) Affixing the certification mark to 

a certified biobased product during 

periods when certification has been 

suspended or revoked. 

(3) Application violations. Knowingly 

providing false or misleading 

information in any application for 

certification of a biobased product 

constitutes a violation of this part. 

(4) USDA BioPreferred Program Web 

site violations. Failure to provide to 

USDA updated information when the 

information for a certified biobased 

product becomes outdated or when new 

information for a certified biobased 

product becomes available constitutes a 

violation of this part. 

(c) Notice of violations and associated 

actions. USDA will provide the 

applicable manufacturer or vendor or 

their designated representatives and any 

involved other entity known to USDA 

written notification of any violations 

identified by USDA. USDA will first 

issue a preliminary notice that apparent 

violations have been identified. If 

satisfactory resolution of the apparent 

violation is not reached within 30 days 

from receipt of the preliminary notice, 

USDA will issue a notice of violation. 

Entities who receive a notice of 

violation for a biobased content 

violation must correct the violation(s) 

within 90 days from receipt of the 

notice of violation. Entities who receive 

a notice of violation for other types of 

violations also must correct the 

violation(s) within 90 days from receipt 

of the notice of violation. If the entity 

receiving a notice of violation is a 

manufacturer, a vendor, or a designated 

representative of a manufacturer or 

vendor, USDA will pursue notices of 

suspensions and revocation, as 

discussed in paragraphs (c)(1) and (c)(2) 

of this section. USDA reserves the right 

to further pursue action against these 

entities as provided for in paragraph 

(c)(3) of this section. If the entity 

receiving a notice of violation is an 

‘‘other entity’’ (i.e., not a manufacturer, 

vendor, or designated representative), 

then USDA will pursue action according 

to paragraph (c)(3) of this section. 

Entities that receive notices of 

suspension or revocation may appeal 

such notices using the procedures 

specified in § 2904.6. 

(1) Suspension. 

(i) If a violation is applicable to a 

manufacturer, vendor, or designated 

representative and the applicable entity 

fails to make the required corrections 

within 90 days of receipt of a notice of 

violation, USDA will notify the 

manufacturer or vendor, as appropriate, 

of the continuing violation, and the 

USDA certification for that product will 

be suspended. As of the date that the 

manufacturer or vendor receives a 

notice of suspension, the manufacturer 

or vendor and their designated 

representatives must not affix the 

certification mark to any of that product, 

or associated packaging, not already 

labeled and must not distribute any 

additional products bearing the 

certification mark. USDA will both 

remove the product information from 

the USDA BioPreferred Program Web 

site 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 

manufacturer or vendor whose USDA 

product certification has been 

suspended makes the required 

corrections and notifies USDA that the 

corrections have been made, the 

manufacturer or vendor and their 

designated representatives may, upon 

receipt of USDA approval of the 

corrections, resume use of the 

certification mark. USDA will also 

restore the product information to the 

USDA BioPreferred Program Web site. 

(2) Revocation. 

(i) If a manufacturer or vendor whose 

USDA product certification has been 

suspended fails to make the required 

corrections and notify USDA of the 

corrections within 30 days of the date of 

the suspension, USDA will notify the 

manufacturer or vendor that the 

certification for that product is revoked. 

(ii) As of the date that the 

manufacturer or vendor receives the 

notice revoking USDA certification, the 

manufacturer or vendor and their 

designated representatives must not 

affix the certification mark to any of that 

product not already labeled. In addition, 

the manufacturer or vendor and their 

designated representatives are 

prohibited from further sales of product 

to which the certification mark is 

affixed. 

(iii) If a manufacturer or vendor 

whose product certification has been 

revoked wishes to use the certification 

mark, the manufacturer or vendor must 

follow the procedures required for 

original certification. 

(3) Other remedies. In addition to the 

suspension or revocation of the 

certification to use the label, depending 

on the nature of the violation, USDA 

may pursue suspension or debarment of 

the entities involved in accordance with 

7 CFR part 3017. 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. 

§ 2904.9 Recordkeeping requirements. 

(a) Records. Manufacturers and 

vendors shall maintain records 

documenting compliance with this part 

for each product that has received 

certification to use the label, as 

specified in paragraphs (a)(1) through 

(a)(3) of this section. 

(1) The results of all tests, and any 

associated calculations, performed to 

determine the biobased content of the 

product. 

(2) The date the applicant receives 

certification from USDA, the dates of 

changes in formulation that affect the 

biobased content of certified biobased 

products, and the dates when the 

biobased content of certified biobased 

products was tested. 

(3) Documentation of analyses 

performed by manufacturers to support 

claims of environmental or human 

health benefits, life cycle cost, 

sustainability benefits, and product 

performance made by the manufacturer. 

(b) Record retention. For each 

certified biobased product, records kept 

under paragraph (a) of this section must 

be maintained for at least three years 

beyond the end of the label certification 

period (i.e., three years beyond the 

period of time when manufacturers and 

vendors cease using the certification 

mark). Records may be kept in either 

electronic format or hard copy format. 

All records kept in electronic format 

must be readily accessible, and/or 

provided by request during a USDA 

audit. 

§ 2904.10 Oversight and monitoring. 

(a) General. USDA will conduct 

oversight and monitoring of 

manufacturers, vendors, designated 

representatives, and other entities 

involved with the voluntary product 

labeling program to ensure compliance 

with this part. This oversight will 

include, but not be limited to, 

conducting facility visits of 

manufacturers and vendors who have 

certified biobased products, and of their 

designated representatives. 

Manufacturers, vendors, and their 

designated representatives are required 

to cooperate fully with all USDA audit 

efforts for the enforcement of the 

voluntary labeling program. 

(b) Biobased content testing. USDA 

will conduct biobased content testing of 

certified biobased products, as 

described in § 2904.8(b)(1) to ensure 

compliance with this Part. 

(c) Inspection of records. 

Manufacturers, vendors, and their 

designated representatives must allow 

Federal representatives access to the 

records required under § 2904.9 for 


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Federal Register / Vol. 76, No. 13 / Thursday, January 20, 2011 / Rules and Regulations 3813 

inspection and copying during normal 

Federal business hours. 

Dated: January 10, 2011. 

Pearlie S. Reed, 

Assistant Secretary for Administration, U.S. 

Department of Agriculture. 

[FR Doc. 2011–968 Filed 1–19–11; 8:45 am] 

BILLING CODE 3410–39–P 


srobinson on DSKHWCL6B1PROD with MISCELLANEOUS