[Federal Register Volume 77, Number 84 (Tuesday, May 1, 2012)]
[Proposed Rules]
[Pages 25632-25641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10420]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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


Federal Register / Vol. 77, No. 84 / Tuesday, May 1, 2012 / Proposed 
Rules

[[Page 25632]]



DEPARTMENT OF AGRICULTURE

7 CFR Part 3201

RIN 0503-AA40


Guidelines for Designating Biobased Products for Federal 
Procurement

AGENCY: Office of Procurement and Property Management, USDA.

ACTION: Proposed rule; amendments.

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

SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to 
amend 7 CFR part 3201, Guidelines for Designating Biobased Products for 
Federal Procurement, to incorporate statutory changes to section 9002 
of the Farm Security and Rural Investment Act (FSRIA) that were 
effected when the Food, Conservation, and Energy Act of 2008 (FCEA) was 
signed into law on June 18, 2008.

DATES: USDA will accept public comments on these proposed rule 
amendments until July 2, 2012.

ADDRESSES: You may submit comments by any of the following methods. All 
submissions received must include the agency name and Regulatory 
Information Number (RIN). The RIN for this rulemaking is 0503-AA40. 
Also, please identify submittals as pertaining to the ``Proposed 
Amendments to BioPreferred Program Guidelines.''
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#8be9e2e4fbf9eeedeef9f9eeefcbfef8efeaa5ece4fd"><span class="__cf_email__" data-cfemail="c0a2a9afb0b2a5a6a5b2b2a5a480b5b3a4a1eea7afb6">[email protected]</span></a>. Include RIN number 0503-AA40 
and ``Proposed Amendments to BioPreferred Program Guidelines'' on the 
subject line. Please include your name and address in your message.
    <bullet> Mail/commercial/hand delivery: Mail or deliver your 
comments to: Ron Buckhalt, USDA, Office of Procurement and Property 
Management, Room 361, Reporters Building, 300 7th St. SW., Washington, 
DC 20024.
    <bullet> Persons with disabilities who require alternative means 
for communication for regulatory information (Braille, large print, 
audiotape, etc.) should contact the USDA TARGET Center at (202) 720-
2600 (voice) and (202) 690-0942 (TTY).

FOR FURTHER INFORMATION CONTACT: Ron Buckhalt, USDA, Office of 
Procurement and Property Management, Room 361, Reporters Building, 300 
7th St. SW., Washington, DC 20024; email: <a href="/cdn-cgi/l/email-protection#cdafa4a2bdbfa8aba8bfbfa8a98db8bea9ace3aaa2bb"><span class="__cf_email__" data-cfemail="ed8f84829d9f888b889f9f8889ad989e898cc38a829b">[email protected]</span></a>; phone 
(202) 205-4008. Information regarding the Federal biobased preferred 
procurement program (one part of the BioPreferred 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. Executive Summary
IV. Discussion of Today's Proposed Rule
V. Request for Comment
VI. Regulatory Information
    A. Executive Orders 12866 and 13563: 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

I. Authority

    The Guidelines for Designating Biobased Products for Federal 
Procurement (the Guidelines) are established 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. (Section 9002 of FSRIA, as amended by FCEA, is 
referred to in this document as ``section 9002'').

II. Background

    As originally enacted, section 9002 provides for the preferred 
procurement of biobased products by Federal agencies. USDA proposed the 
Guidelines for implementing this preferred procurement program on 
December 19, 2003 (68 FR 70730-70746). The Guidelines were promulgated 
on January 11, 2005 (70 FR 1792), and are contained in 7 CFR part 3201, 
``Guidelines for Designating Biobased Products for Federal 
Procurement.''
    The Guidelines identify various procedures Federal agencies are 
required to follow in implementing the requirements of section 9002. 
They were modeled in part on the ``Comprehensive Procurement Guidelines 
for Products Containing Recovered Materials'' (40 CFR part 247), which 
the Environmental Protection Agency (EPA) issued pursuant to the 
Resource Conservation Recovery Act (``RCRA''), 40 U.S.C. 6962.
    On June 18, 2008, the FCEA was signed into law. Section 9001 of the 
FCEA includes several provisions that amend the provisions of section 
9002 of FSRIA. In an effort to update operational aspects of the 
BioPreferred program in response to the amendments in the FCEA, USDA 
initiated a process to review current program guidelines, gather input 
from government, industry, and public stakeholders on different aspects 
of the program, and determine appropriate methods for implementing the 
new requirements established by the FCEA. USDA held three public 
meetings during the first four months of 2010 to provide an opportunity 
for stakeholder input. A complete summary for each of the public 
meetings, including transcripts, presentation slides, and attendee 
lists can be found on the BioPreferred Web site at: http://www.biopreferred.gov/BioPreferred_Public_Meetings.aspx.
    The purpose of these proposed rule amendments is to revise the 
Guidelines to incorporate changes to section 9002 of FSRIA that were 
included in the FCEA. These proposed guidelines will not affect 
products that have already been designated for Federal procurement 
preference. Any changes necessary to the existing designation status of 
products will be established by future rule-makings.

III. Executive Summary

    USDA is proposing to amend 7 CFR part 3201 for two reasons. The 
first reason is to incorporate statutory changes to section 9002 of the 
Farm Security and Rural Investment Act made by enactment of the Food, 
Conservation, and Energy Act (FCEA) of 2008 on June 18, 2008. The 
second reason is to make improvements to the existing rule based

[[Page 25633]]

on several years of operating experience. The remainder of this section 
presents a brief summary of the proposed amendments to the existing 
Guidelines and Section IV of this preamble presents more detailed 
discussions.

A. Purpose of the Regulatory Action

1. Need for the Regulatory Action
    The FCEA contains legislative requirements related to the Biobased 
Markets Program that cannot be implemented without further guidance. 
For example, the law requires USDA to first designate those 
intermediate ingredients and feedstocks that are or can be used to 
produce items that will be subject to program's Federal procurement 
preference. The law then requires USDA to automatically designate 
products composed of designated intermediate ingredients and 
feedstocks, if the content of the designated intermediate ingredients 
and feedstocks exceeds 50 percent of the product (unless the Secretary 
determines a different composition percentage is appropriate). Today's 
proposed rule establishes procedures to carry out this and other 
provisions of FCEA.
2. Legal Authority for the Regulatory Action
    Enactment of the Food, Conservation, and Energy Act (FCEA) of 2008 
(Pub. L. 110-234) on June 18, 2008 provides the legal authority for the 
proposed rule.

B. Summary of Major Provisions of the Proposed Rule

1. Designation of Intermediate or Feedstock Categories
    The designation of intermediate ingredient or feedstock categories, 
as proposed, will follow the same process that USDA uses in the ongoing 
designation of product categories. USDA will establish a minimum 
biobased content for each intermediate ingredient or feedstock category 
based on an evaluation of the available biobased content data. The 
minimum biobased content requirement will be set at the highest level 
practicable, considering technological limitations.
    USDA recognizes that, in general, the Federal government does not 
purchase large quantities of intermediate ingredients and feedstocks. 
Designating such materials, then, represents a means to include 
finished products made from such designated materials in the Federal 
biobased products procurement preference program.
    The proposed rule presents the procedure for designating those 
final products that are made from designated intermediate ingredients 
or feedstocks. The FCEA states that USDA shall ``automatically 
designate'' final products composed of designated intermediate 
ingredients or feedstocks if the content of the designated intermediate 
ingredients or feedstocks exceeds 50 percent of the final product 
(unless the Secretary determines a different composition percentage is 
appropriate). Even though the FCEA uses the term ``automatically'' when 
specifying that these final products are eligible for the Federal 
procurement preference, they still must be incorporated into the 
Guidelines by publication in the Federal Register. USDA is proposing a 
procedure whereby the designation of these final products would be done 
in conjunction with the designation of the intermediate ingredient or 
feedstock categories.
2. Designation of Complex Assembly Categories
    The proposed rule would establish procedures for designating 
complex assembly products (multi-component assembled products with one 
or more component being made with biobased material) within the scope 
of the Federal biobased products procurement preference program. 
Although section 9001 of FCEA does not specifically mention these 
multi-component assembled products, USDA believes that including this 
type of finished product in the BioPreferred program will encourage the 
increased use of biobased materials and, thus, further advance the 
objectives of the program.
    Today's proposal specifies a proposed procedure for determining the 
biobased content of complex assemblies. USDA is proposing that the 
biobased content of complex assemblies be calculated using an equation 
that yields a weighted average and is based on the summation of the 
biobased content of each individual component that contains, or could 
contain, biobased material divided by the total weight of all those 
components.
    USDA selected the approach presented in the equation because it 
provides results that relate to the maximum amount of biobased material 
that could potentially be found in each complex assembly, regardless of 
the amount or type of materials used in other components.
3. Replacement of ``Designated Item'' With ``Designated Category''
    The current guidelines use the term ``designated item'' to refer to 
a generic grouping of biobased products identified in subpart B as 
eligible for the procurement preference. The use of this term has 
created some confusion, however, because the word ``item'' is also used 
in the guidelines to refer to individual products rather than a generic 
grouping of products. USDA is proposing to replace the term 
``designated item'' with the term ``designated product category.'' In 
addition, USDA is proposing to add a definition for the term 
``qualifying biobased product'' to refer to an individual product that 
meets the definition and minimum biobased content criteria for a 
designated product category and is, therefore, eligible for the 
procurement preference. Although these changes are not required by 
section 9001 of FCEA, USDA believes the proposed terms and definitions 
will add clarity to the rule.
4. Procurement Preference for New and Emerging Markets
    USDA is proposing that paragraph (b) of section 3201.5 be amended 
to add a statement that ``USDA will designate for preferred procurement 
those product categories and intermediate ingredient or feedstock 
categories that are determined to create new and emerging markets for 
biobased materials.'' This statement is being added to emphasize the 
section 9002 objectives ``to improve demand for biobased products'' and 
``to spur development of the industrial base through value-added 
agricultural processing and manufacturing in rural communities.''
    This new paragraph is intended to replace the current mature market 
exclusion, which limits the types of product categories eligible for 
the Federal procurement preference. USDA is proposing this change to be 
more consistent with the objectives and legislative intent of the 
Biobased Markets Program.

C. Costs and Benefits

[[Page 25634]]



------------------------------------------------------------------------
            Type                      Costs               Benefits
------------------------------------------------------------------------
Qualitative.................  Unable to quantify    Unable to quantify
                               at this time.         at this time.
Qualitative.................  1. Costs of           1. Advances the
                               developing biobased   objectives of the
                               alternative           BioPreferred
                               products.             program, as
                                                     envisioned by
                                                     Congress in
                                                     developing the 2002
                                                     and 2008 Farm
                                                     Bills.
                              2. Costs to gather    2. Opens new
                               and submit biobased   (Federal) market
                               product information   for biobased
                               for BioPreferred      products that USDA
                               Web site.             designates.
                              3. Loss of market     3. Opportunity for
                               share by              new and emerging
                               manufacturers who     biobased products
                               choose not to offer   to be publicized
                               biobased versions     via BioPreferred
                               of products.          Web site.
------------------------------------------------------------------------

IV. Discussion of Today's Proposed Rule

    USDA is proposing to amend nine sections of 7 CFR part 3201, as 
described below.

A. 7 CFR 3201.1--Purpose and Scope

    Paragraph (b) of 7 CFR 3201.1 is being amended to state that the 
scope of the guidelines includes the designation of intermediate 
ingredients and feedstocks that are, or can be, used to produce final 
products that will be designated and, thus, subject to the Federal 
procurement preference. The amendments also specify that USDA may 
designate product categories for which there is only a single product 
or manufacturer. These proposed amendments are taken directly from the 
amendatory language found in section 9001 of the FCEA.
    Finally, this section is being amended to include the designation 
of complex assembly products (multi-component assembled products with 
one or more component being made with biobased material) within the 
scope of the Federal biobased products procurement preference program. 
Although section 9001 of FCEA does not specifically mention these 
multi-component assembled products, USDA believes that including this 
type of finished product in the BioPreferred program will encourage the 
increased use of biobased materials and, thus, further advance the 
objectives of the program.

B. 7 CFR 3201.2--Definitions

    USDA is proposing to amend 7 CFR 3201.2 by revising several of the 
definitions currently in that section and by adding definitions for 
several other terms. The current guidelines use the term ``designated 
item'' to refer to a generic grouping of biobased products identified 
in subpart B as eligible for the procurement preference. The use of 
this term has created some confusion, however, because the word 
``item'' is also used in the guidelines to refer to individual products 
rather than a generic grouping of products. USDA is proposing to 
replace the term ``designated item'' with the term ``designated product 
category.'' In addition, USDA is proposing to add a definition for the 
term ``qualifying biobased product'' to refer to an individual product 
that meets the definition and minimum biobased content criteria for a 
designated product category and is, therefore, eligible for the 
procurement preference. Although these changes are not required by 
section 9001 of FCEA, USDA believes the proposed terms and definitions 
will add clarity to the rule.
    Section 9001 of the FCEA authorized USDA to designate biobased 
intermediate ingredients or feedstocks that can be used in the 
manufacturing of final products. USDA is, therefore, revising the 
definition of the term ``biobased product'' to add the phrase 
``intermediate ingredient or feedstock'' to the definition. USDA is 
also adding definitions for the terms ``intermediate ingredient or 
feedstock'' and ``designated intermediate ingredient or feedstock 
category'' to refer to a specific individual material and to a generic 
grouping of materials, respectively. The definition of the term 
``intermediate ingredient or feedstock'' is taken from section 9001 of 
FCEA, except that the phrase referring to materials ``that have 
undergone a significant amount of value added processing (including 
thermal, chemical, biological, and mechanical), excluding harvesting 
operations, offered for sale by a manufacturer or vendor'' has been 
added. This phrase was added to the statutory definition to further 
distinguish intermediate ingredients or feedstocks from raw materials 
(such as corn or soybeans) that have been harvested but have not 
undergone any other processing. USDA does not intend to designate such 
raw materials for Federal preferred procurement under this program.
    USDA recognizes that the incorporation of biobased materials into 
one or more of the components of an assembled final product is an 
important emerging trend. By including these multi-component assembled 
products in the BioPreferred program, USDA can encourage the increased 
use of biobased materials and, thus, further advance the objectives of 
the program. USDA is proposing revisions to the guidelines to 
facilitate the designation of these assembled products. USDA is 
proposing that these assembled products be referred to as ``complex'' 
assemblies and that the term ``complex assembly'' be defined as ``a 
system of distinct materials and components assembled to create a 
finished product with specific functional intent where some or all of 
the system inputs contain some amount of biobased material or 
feedstock.''
    In addition to the changes discussed above, USDA is proposing to 
simplify the definition of the term ``BEES'' by removing the references 
to the BEES User Guide and Web site from the current definition, as 
this information is not necessary to define the term. USDA is also 
revising the format of the definition of ``procuring agency'' to make 
it consistent with the other definitions in section 3201.2 and adding a 
definition of the term ``relevant stakeholder,'' which is used in the 
proposed revision to Sec.  3201.1 to refer to non-Federal stakeholders 
having an interest or involvement in the BioPreferred program.

C. 7 CFR 3201.3--Applicability to Federal Procurements; and 7 CFR 
3201.4--Procurement Programs

    USDA is proposing to revise the text in Sec. Sec.  3201.3 and 
3201.4 to be consistent with the decision to clarify the terminology 
used in the BioPreferred program by avoiding, to the extent possible, 
the use of the terms ``item'' and ``designated item.'' As proposed, the 
references in the sections will be to ``products'' and ``qualifying 
biobased products,'' as applicable. The revisions in these sections 
will make the terminology consistent throughout the rule but will have 
no other effect on the rule.

D. 7 CFR 3201.5--Item Designation

    USDA is proposing to change the name of this section to ``Category 
Designation'' and to make several revisions to the text of the section. 
In addition to the change in terminology from ``item'' to ``product 
category,'' the section, as proposed, adds procedures for the 
designation of both intermediate ingredient or feedstock categories and 
the final products that are made from

[[Page 25635]]

those designated intermediate ingredients or feedstocks. As proposed, 
paragraph (a) of the section will include three sub-paragraphs.
    Sub-paragraph (1) presents the procedure for designating product 
categories, which are generic groupings of specific products or complex 
assemblies that are commercially available to procuring agencies.
    Sub-paragraph (2) presents the procedure for designating 
intermediate ingredient or feedstock categories, which are generic 
groupings of specific intermediate ingredients or feedstocks that are 
subsequently used in the manufacture of final products. The designation 
of intermediate ingredient or feedstock categories, as proposed, will 
follow the same process that USDA uses in the ongoing designation of 
product categories. USDA will establish a minimum biobased content for 
each intermediate ingredient or feedstock category based on an 
evaluation of the available biobased content data. The minimum biobased 
content requirement will be set at the highest level practicable, 
considering technological limitations.
    USDA recognizes that, in general, the Federal government does not 
purchase large quantities of intermediate ingredients and feedstocks. 
Designating such materials, then, represents a means to include 
finished products made from such designated materials in the Federal 
biobased products procurement preference program.
    Sub-paragraph (3) presents the procedure for designating those 
final products that are made from designated intermediate ingredients 
or feedstocks. The FCEA states that USDA shall ``automatically 
designate'' final products composed of designated intermediate 
ingredients or feedstocks if the content of the designated intermediate 
ingredients or feedstocks exceeds 50 percent of the final product 
(unless the Secretary determines a different composition percentage is 
appropriate). Even though the FCEA uses the term ``automatically'' when 
specifying that these final products are eligible for the Federal 
procurement preference, they still must be incorporated into the 
Guidelines by publication in the Federal Register. USDA is proposing a 
procedure whereby the designation of these final products would be done 
in conjunction with the designation of the intermediate ingredient or 
feedstock categories.
    During the process of designating intermediate ingredient or 
feedstock categories, USDA would also gather information on the various 
types of final products that are, or can be, made from those 
intermediate ingredients or feedstocks. Those final products that are 
identified during the information gathering process would be listed in 
the Federal Register proposed rule for designating the intermediate 
ingredient or feedstock categories. USDA would also specify in the 
proposed rule a minimum biobased content for each of the final products 
based on the amount of designated intermediate ingredients or 
feedstocks such products contain. Public comment would be invited on 
the list of potential final products, and the minimum biobased content 
for each, as well as on the intermediate ingredient or feedstock 
categories being proposed for designation. Public comments on the list 
of potential final products would be considered, along with any 
additional information gathered by USDA, and the list would be 
finalized. When the final rule designating the intermediate ingredient 
or feedstock categories, by adding them to subpart B, is published in 
the Federal Register, the list of final products would also be added to 
subpart B. Once these final products are listed in subpart B, they 
become eligible for the Federal procurement preference.
    USDA is proposing that paragraph (b) of Sec.  3201.5 be amended to 
add a statement that ``USDA will designate for preferred procurement 
those product categories and intermediate ingredient or feedstock 
categories that are determined to create new and emerging markets for 
biobased materials.'' This statement is being added to emphasize the 
section 9002 objectives ``to improve demand for biobased products'' and 
``to spur development of the industrial base through value-added 
agricultural processing and manufacturing in rural communities.''
    USDA is also proposing to amend paragraph (c) of Sec.  3201.5 to 
delete the exclusion (currently found in 3201.5(c)(2)) for products 
that are determined to have mature markets. This exclusion is being 
removed, in conjunction with the additions to paragraph (b), as part of 
USDA efforts to emphasize the intent to create new and emerging markets 
for biobased materials.

E. 7 CFR 3201.6--Providing Product Information to Federal Agencies

    USDA is proposing to create two sub-paragraphs under paragraph (a) 
of Sec.  3201.6. The first sub-paragraph describes the type of 
information provided on the USDA-maintained Web site and has been 
updated to include reference to products within designated intermediate 
ingredient or feedstock categories. The second sub-paragraph is new and 
notifies stakeholders that the BioPreferred Web site will also include 
the National Testing Center Registry, an electronic listing of 
recognized industry standard testing organizations.

F. 7 CFR 3201.7--Determining Biobased Content

    USDA is proposing to make several revisions to Sec.  3201.7. 
Proposed paragraphs (a) and (b) have been revised to refer to 
designated product categories, rather than to designated items, and to 
include references to the new designated intermediate ingredient or 
feedstock categories. Proposed paragraph (c) has been updated to refer 
to the new name for ASTM Standard Method D-6866. Proposed paragraph (c) 
has also been revised to include three sub-paragraphs.
    Sub-paragraph (1) states that the biobased content for biobased 
products and intermediate ingredients or feedstocks will be based on 
the amount of biobased carbon in the product or material as percent of 
the weight (mass) of the total organic carbon in the product or 
material.
    Sub-paragraph (2) states that for final products composed of 
intermediate ingredient or feedstock materials, the biobased content of 
the final product will be determined by multiplying the percentage by 
weight (mass) of the intermediate ingredient or feedstock material in 
the final product times the percentage of biobased content of the 
intermediate ingredient or feedstock material and dividing the result 
by 100. For example: a product is formulated such that 25 percent of 
its total weight is component A and component A is a biobased feedstock 
material that is 60 percent biobased; 40 percent of the total weight of 
the product is component B and component B is a biobased feedstock 
material that is 80 percent biobased. The biobased content of the final 
product is 47 percent [(25 * 60 = 1500) + (40 * 80 = 3200) = 4700/100 = 
47 percent]. This approach was selected because the manufacturer of the 
final product can determine the biobased content of their final product 
using their own formulation data and knowledge of the biobased content 
of the intermediate ingredient or feedstock as certified by the 
manufacturer of that material. The cost of performing ASTM 6866 testing 
on the final product is, thus, avoided.
    Sub-paragraph (3) specifies the proposed procedure for determining 
the biobased content of complex assemblies. USDA is proposing that the 
biobased content of complex assemblies be calculated using the 
following equation:

[[Page 25636]]

[GRAPHIC] [TIFF OMITTED] TP01MY12.001

Where:

BC = biobased content of the complex assembly product, (percent);
BC<INF>i</INF> = biobased content of an individual component that 
has the potential to be manufactured with biobased material 
(percent);
W<INF>i</INF> = weight of an individual component that has the 
potential to be manufactured with biobased material, (mass unit); 
and
W<INF>T</INF> = total weight of all components that have the 
potential to be manufactured with biobased material (mass unit).

    The result of the equation is a weighted average that is based on 
the summation of the biobased content of each individual component that 
contains, or could contain, biobased material divided by the total 
weight of all those components. USDA considered dividing the summation 
in the numerator of the equation by the total weight of the entire 
assembled product. However, USDA believes that the results of such an 
approach could be misleading because the weight of non-biobased 
components is expected to be drastically different among the various 
complex assemblies. For example, both an automobile and a computer may 
have several individual components that could potentially be 
manufactured with biobased materials. If all of these individual 
components in both the automobile and the computer were made of 100 
percent biobased material, the equation above would result in a 
calculated biobased content of 100 percent for both the automobile and 
the computer. This would indicate that both complex assemblies (the 
automobile or the computer) contained the maximum biobased content 
possible, given that many components of the completed complex 
assemblies cannot be made from biobased materials. If, however, the 
biobased content was based on the total weight of the completed complex 
assembly, the results would not be comparable for the two example 
complex assemblies. The possible amount of biobased material in an 
automobile divided by the total weight of the automobile would be a 
very small percentage because of the amount of metal and glass in the 
automobile that cannot be made of biobased material. For the computer, 
however, the percentage would be considerably higher because a much 
larger portion of the completed assembly can be made from biobased 
materials. Thus, USDA selected the approach presented in the equation 
above because it provides results that relate to the maximum amount of 
biobased material that could potentially be found in each complex 
assembly, regardless of the amount or type of materials used in other 
components. Two example calculations using the proposed approach are 
provided below.
    Example 1: 
    <bullet> A completed complex assembly contains 10 components, 7 
of the components are made from steel and the other 3 (components X, 
Y, and Z) are plastic and could be manufactured using biobased 
plastic resins
    <bullet> Component X weighs 5 pounds and is made from a resin 
with 40 percent biobased content
    <bullet> Component Y weighs 7 pounds and is made from a resin 
with 50 percent biobased content
    <bullet> Component Z weighs 15 pounds and is made from a resin 
with 60 percent biobased content
    <bullet> The biobased content of the completed complex assembly 
is calculated as follows:
[GRAPHIC] [TIFF OMITTED] TP01MY12.002

    Example 2: 
    <bullet> Another manufacturer makes a version of the complex 
assembly described in Example 1 (contains 10 components, 7 of the 
components are made from steel and the other 3 are plastic and could 
be manufactured using biobased plastic resins)
    <bullet> Component X weighs 5 pounds and is made from a 
petroleum-based resin (0 percent biobased content)
    <bullet> Component Y weighs 7 pounds and is made from a resin 
with 20 percent biobased content
    <bullet> Component Z weighs 15 pounds and is made from a resin 
with 90 percent biobased content
    <bullet> The biobased content of the completed complex assembly 
is calculated as follows:
[GRAPHIC] [TIFF OMITTED] TP01MY12.003


    These examples show how the proposed equation would be applied and 
also show the importance of using a weighted approach to calculating 
the biobased content of the completed complex assembly. In example 1, 
the manufacturer uses three components that all contain about 50 
percent biobased content and uses a total of 14.50 pounds of biobased 
material in the manufacturing of the complex assembly. In example 2, 
the manufacturer only uses biobased material in two of the three non-
steel components, with one of those components containing only 20 
percent biobased content. However, because the largest component is 
made from 90 percent biobased material, the total weight of the 
biobased material in the completed complex assembly is 14.90 pounds. 
USDA believes that the proposed method of calculating the biobased 
content of complex assemblies provides manufacturers the maximum amount 
of flexibility in their processes while recognizing the actual amount 
of biobased material usage in a reasonable, equitable, and practical 
manner.
    USDA acknowledges that the determination of which components of a 
complex assembly have the ``potential'' to be made from biobased 
materials will require significant input and cooperation from 
stakeholders. USDA will solicit input from industry trade 
organizations, as well as individual manufacturers of complex 
assemblies and intermediate ingredients or feedstocks, during the 
development of the technical information for the proposed rule 
designating a complex assembly. USDA will use this information to 
develop a minimum biobased content to include in the proposed rule. 
USDA will also ask for additional information in the proposal and will 
consider any information provided during the public comment period. 
USDA will use this stakeholder input to identify, for each category of 
complex assembly products that is designated, the components that have 
the potential to be made from biobased materials.
    USDA is also proposing to revise paragraph (d) of Sec.  3201.7 to 
add a reference to intermediate ingredients or feedstocks to the 
existing provisions of the paragraph. Paragraph (d) states that where 
multiple products are marketed under several brand names but are all 
essentially the same formulation, the biobased content testing does not 
have to be brand-name specific. This provision reduces the cost of 
biobased content testing for manufacturers of products or intermediate 
ingredients or feedstocks who sell their products or materials under 
more than one brand name.

G. 7 CFR 3201.8--Determining Life Cycle Costs, Environmental and Health 
Benefits, and Performance

    USDA is proposing to change the name of this section to 
``Determining relative price, environmental and health benefits, and 
performance.'' In the original guidelines, manufacturers were required, 
under Sec.  3201.8(a), to provide life cycle cost information from 
either a BEES analysis or a similar analysis using ASTM D7075 when such 
information was requested by a Federal

[[Page 25637]]

agency. In response to the language in section 9001 of the FCEA and 
numerous comments by stakeholders, USDA previously amended Sec.  3201.8 
(76 FR 6322) to eliminate this requirement. In today's proposed 
revisions, USDA is adding language to paragraph (a) encouraging 
stakeholders to develop and provide information on environmental and 
public health benefits, including life cycle costs, associated with 
their biobased products. While Federal agencies may no longer require 
such information from manufacturers of biobased products, USDA believes 
that information from life cycle analyses (LCA) will be a valuable tool 
in the marketing of biobased products. Numerous stakeholders have 
provided comments and recommendations regarding the role of LCA in the 
BioPreferred program and USDA acknowledges that opinions vary widely on 
the benefits and the most appropriate approach to conducting LCA. USDA 
considered requiring that manufacturers perform LCA on their biobased 
products but decided that such a requirement would not be appropriate 
at this time, given the issues raised by stakeholders. USDA continues 
to believe, however, that the availability of LCA information, 
developed using industry-accepted approaches, such as the ASTM D7075 
standard or the BEES analytical tool, may be valuable in Federal 
procurements that take into account human health, environmental, or 
disposal considerations in the product selection process. Thus, USDA is 
encouraging biobased product manufacturers to voluntarily perform these 
analyses and make the information available for posting on the 
BioPreferred Web site.

H. 7 CFR 3201.9--Funding for Testing

    USDA is proposing to remove the existing text related to funding 
for BEES and other life cycle cost analyses from this section and 
reserve the section.

I. Subpart B--Designated Items

    USDA is proposing to change the title of subpart B of part 3201 to 
read as follows: ``Subpart B--Designated Product Categories and 
Intermediate Ingredients or Feedstocks.'' We are proposing this change 
so that the title will be consistent with the revised terminology being 
proposed for the BioPreferred Program.

V. Request for Comment

    USDA is requesting comment on all aspects of today's proposed 
amendments to the Guidelines. In particular, USDA requests that 
stakeholders provide comment on the following topics:
    1. Whether the use of the new terms ``product category,'' 
``designated product category,'' and ``qualifying biobased product'' 
add clarity and, if not, suggestions on terms that would be more clear.
    2. Whether the proposed procedure for designating final products 
made from designated intermediate ingredients or feedstocks is a 
reasonable and workable approach. Commenters are requested to provide 
recommendations for alternative approaches to any element of the 
procedure they believe is not appropriate.
    3. Whether the proposed methodology for determining the biobased 
content of final products composed of intermediate ingredient or 
feedstock materials is appropriate and, if not, specific 
recommendations on an alternative approach.
    4. Whether the definition of the term ``complex assembly'' and the 
procedure for designating complex assemblies is reasonable and 
appropriate.
    5. Whether the proposed methodology for determining the biobased 
content of complex assemblies is appropriate and, if not, specific 
recommendations on an alternative approach.
    6. The appropriate role of LCA in the process of qualifying 
biobased products for the BioPreferred program and, if you believe 
there is a role for LCA, the most appropriate methodology to use.
    7. USDA is proposing to revise Sec.  3201.5(b) to state that ``USDA 
will designate for preferred procurement those product categories and 
intermediate ingredient or feedstock categories that are determined to 
create new and emerging markets for biobased materials.'' USDA is also 
proposing to remove Sec.  3201.5(c)(2), the exclusion of mature market 
products. USDA requests comments on what the term ``new and emerging 
markets'' means to stakeholders.

VI. Regulatory Information

A. Executive Orders 12866 and 13563: Regulatory Planning and Review

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866. Accordingly, the 
rule has been reviewed by the Office of Management and Budget.
1. Need for the Rule
    Today's proposed rule would amend the BioPreferred Program 
Guidelines to establish the regulatory framework for the designation of 
complex assemblies and intermediate ingredients or feedstocks for 
Federal procurement preference. The designation of such products is 
specifically required under the Food, Conservation, and Energy Act of 
2008, which states that:

    ``(B) Requirements.--The guidelines under this paragraph shall--
    (i) designate those items (including finished products) that are 
or can be produced with biobased products (including biobased 
products for which there is only a single product or manufacturer in 
the category) that will be subject to the preference described in 
paragraph (2);
    (ii) designate those intermediate ingredients and feedstocks 
that are or can be used to produce items that will be subject to the 
preference described in paragraph (2);
    (iii) automatically designate items composed of intermediate 
ingredients and feedstocks designated under clause (ii), if the 
content of the designated intermediate ingredients and feedstocks 
exceeds 50 percent of the item (unless the Secretary determines a 
different composition percentage is appropriate).''
2. Benefits
    We expect that the rule will result in benefits that justify its 
cost, but we lack the information to quantify those benefits. This rule 
expands the scope of products that may be considered for Federal 
procurement preference. The eligibility of intermediate ingredients or 
feedstocks and complex assemblies is expected to increase demand for 
these products once designated, which, in turn, is expected to increase 
demand for those agricultural products that can serve as ingredients 
and feedstocks. This Federal procurement preference will thus benefit 
businesses producing these ingredients and feedstocks. We request 
comment on the magnitude of this effect.
3. Costs
    The anticipated costs of this action would stem from reduced demand 
for products that do not receive Federal Procurement Preference 
designation. Producers of ingredients and feedstocks that are not so 
designated could face a loss of market share within Federal 
procurement; however, this cost to some producers is a result of 
implementing

[[Page 25638]]

the provisions of the statute. As with benefits, we request information 
on the costs of this action to help quantify our analysis of impacts.
    Although today's proposed rule would establish procedures for 
designating qualifying biobased product categories, no product 
categories are proposed to be designated today. The actual designation 
of biobased product categories under this program will be accomplished 
through future rulemaking actions and the effect of those rulemakings 
on the economy will be addressed at that time.

B. Regulatory Flexibility Act (RFA)

    The RFA, 5 U.S.C. 601-602, generally requires an agency to prepare 
a regulatory flexibility analysis of any rule subject to notice and 
comment rulemaking requirements under the Administrative Procedure Act 
or any other statute unless the agency certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    Although the BioPreferred Program ultimately may have a direct 
impact on a substantial number of small entities, USDA has determined 
that today's proposed rule itself will not have a direct significant 
economic impact on a substantial number of small entities. This rule 
will directly affect Federal agencies, which will be required to 
consider designated products for purchase. In addition, private sector 
manufacturers and vendors of biobased products voluntarily may provide 
information to USDA through the means set forth in this rule. However, 
the rule imposes no requirement on manufacturers and vendors to do so, 
and does not differentiate between manufacturers and vendors based on 
size. USDA does not know how many small manufacturers and vendors may 
opt to participate at this stage of the program.
    As explained above, when USDA issues a proposed rulemaking to 
designate product categories for preferred procurement under this 
program, USDA will assess the anticipated impact of such designations, 
including the impact on small entities. USDA anticipates that this 
program will positively impact small entities which manufacture or sell 
biobased products. For example, once product categories are designated, 
this program will provide additional opportunities for small businesses 
to manufacture and sell biobased products to Federal agencies. This 
program also will impact indirectly small entities that supply biobased 
materials to manufacturers. Additionally, this program may decrease 
opportunities for small businesses that manufacture or sell non-
biobased products or provide components for the manufacturing of such 
products. It is difficult for USDA to definitively assess these 
anticipated impacts on small entities until USDA proposes product 
categories for designation. This rule does not designate any product 
categories.

C. Executive Order 12630: Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This proposed rule has been reviewed in accordance with Executive 
Order 12630, Governmental Actions and Interference With 
Constitutionally Protected Property Rights, and does not contain 
policies that would have implications for these rights.

D. Executive Order 12988: Civil Justice Reform

    This proposed rule has been reviewed in accordance with Executive 
Order 12988, Civil Justice Reform. This rule would not preempt State or 
local laws, is not intended to have retroactive effect, and would not 
involve administrative appeals.

E. Executive Order 13132: Federalism

    This proposed rule would not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment. 
Provisions of this rule would not have a substantial direct effect on 
States or their political subdivisions or on the distribution of power 
and responsibilities among the various government levels.

F. Unfunded Mandates Reform Act of 1995

    This proposed rule contains no Federal mandates under the 
regulatory provisions of Title II of the Unfunded Mandates Reform Act 
of 1995 (UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal 
governments, or the private sector. Therefore, a statement under 
section 202 of UMRA is not required.

G. Executive Order 12372: 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 the Executive Order 12372, which requires 
intergovernmental consultation with State and local officials. This 
program does not directly affect State and local governments.

H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Today's proposed rule does not significantly or uniquely affect 
``one or more Indian tribes, * * * the relationship between the Federal 
Government and Indian tribes, or * * * the distribution of power and 
responsibilities between the Federal Government and Indian tribes.'' 
Thus, no further action is required under Executive Order 13175.

I. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 through 3520), the information collection under the Guidelines is 
currently approved under OMB control number 0503-0011.

J. E-Government Act Compliance

    USDA is committed to compliance with the E-Government Act, which 
requires Government agencies, in general, to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. USDA is implementing an electronic 
information system for posting information voluntarily submitted by 
manufacturers or vendors on the products they intend to offer for 
Federal preferred procurement under each designated item. For 
information pertinent to E-Government Act compliance related to this 
rule, please contact Ron Buckhalt at (202) 205-4008.

List of Subjects in 7 CFR Part 3201

    Biobased products, Procurement.

    For the reasons stated in the preamble, the Department of 
Agriculture is proposing to amend 7 CFR chapter XXXII as follows:

CHAPTER XXXII--OFFICE OF PROCUREMENT AND PROPERTY MANAGEMENT

PART 3201--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL 
PROCUREMENT

    1. The authority citation for part 3201 continues to read as 
follows:

    Authority:  7 U.S.C. 8102.

    2. Section 3201.1 is amended by revising paragraph (b) to read as 
follows:


Sec.  3201.1  Purpose and scope.

* * * * *
    (b) Scope. The guidelines in this part establish a process for 
designating categories of products (including those for which there is 
only a single product

[[Page 25639]]

or manufacturer) that are, or can be, produced with biobased components 
and materials and whose procurement by procuring agencies and other 
relevant stakeholders will carry out the objectives of section 9002 of 
FSRIA. The guidelines also establish a process for designating 
categories of intermediate ingredients and feedstocks that are, or can 
be, used to produce final products that will be designated and, thus, 
subject to Federal preferred procurement. The guidelines also establish 
a process for calculating the biobased content of complex assembly 
products, whose biobased content cannot be measured following ASTM 
Standard Method D-6866, and for designating complex assembly product 
categories.
    3. Section 3201.2 is amended by:
    a. Revising the definitions of ``BEES,'' ``Biobased product,'' and 
``Procuring agency'';
    b. Deleting the definition of ``Designated item''; and
    c. Adding, in alphabetical order, new definitions for ``Complex 
assembly,'' ``Designated intermediate ingredient or feedstock 
category,'' ``Designated product category,'' ``Intermediate ingredient 
or feedstock,'' ``Qualifying biobased product,'' and ``Relevant 
stakeholder'' to read as follows:


Sec.  3201.2  Definitions.

* * * * *
    BEES. An acronym for ``Building for Environmental and Economic 
Sustainability,'' an analytic tool used to determine the environmental 
and health benefits and life cycle costs of products and materials, 
developed by the U.S. Department of Commerce National Institute of 
Standards and Technology.
* * * * *
    Biobased product. A product determined by USDA 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.
* * * * *
    Complex assembly. A system of distinct materials and components 
assembled to create a finished product with specific functional intent 
where some or all of the system inputs contain some amount of biobased 
material or feedstock.
    Designated intermediate ingredient or feedstock category. A generic 
grouping of biobased intermediate ingredients or feedstocks identified 
in subpart B of this part that, when used in the production of a 
resultant final product, qualifies the resultant final product for the 
procurement preference established under section 9002 of FSRIA.
    Designated product category. A generic grouping of biobased 
products, including those final products made from designated 
intermediate ingredients or feedstocks, or complex assemblies 
identified in subpart B of this part that is eligible for the 
procurement preference established under section 9002 of FSRIA.
* * * * *
    Intermediate ingredient or feedstock. A material or compound made 
in whole or in significant part from biological products, including 
renewable agricultural materials (including plant, animal, and marine 
materials) or forestry materials that have undergone a significant 
amount of value added processing (including thermal, chemical, 
biological, and mechanical), excluding harvesting operations, offered 
for sale by a manufacturer or vendor and that is subsequently used to 
make a more complex compound or product.
* * * * *
    Procuring agency. Any Federal agency that is using Federal funds 
for procurement or any person contracting with any Federal agency with 
respect to work performed under the contract.
* * * * *
    Qualifying biobased product. A product that is eligible for Federal 
preferred procurement because it meets the definition and minimum 
biobased content criteria for one or more designated product 
categories, or one or more designated intermediate ingredient or 
feedstock categories, as specified in subpart B of this part.
* * * * *
    Relevant stakeholder. Individuals or officers of state or local 
government organizations, private non-profit institutions or 
organizations, and private businesses or consumers.
* * * * *
    4. Section 3201.3 is amended by revising paragraphs (c) and (d) to 
read as follows:


Sec.  3201.3  Applicability to Federal procurements.

* * * * *
    (c) Procuring products composed of the highest percentage of 
biobased content. Section 9002(a)(2) of FSRIA requires procuring 
agencies to procure qualifying biobased products composed of the 
highest percentage of biobased content practicable or such products 
that comply with the regulations issued under section 103 of Public Law 
100-556 (42 U.S.C. 6914b-1). Procuring agencies may decide not to 
procure such qualifying biobased products if they are not reasonably 
priced or readily available or do not meet specified or reasonable 
performance standards.
    (d) This guideline does not apply to purchases of qualifying 
biobased products that are unrelated to or incidental to Federal 
funding; i.e., not the direct result of a contract or agreement with 
persons supplying items to a procuring agency or providing support 
services that include the supply or use of products.
* * * * *
    5. Section 3201.4 is amended by revising paragraphs (b) and (c) to 
read as follows:


Sec.  3201.4  Procurement programs.

* * * * *
    (b) Federal agency preferred procurement programs.(1) On or before 
[date 1 year after publication of the final rule in the Federal 
Register], each Federal agency shall develop a procurement program 
which will assure that qualifying biobased products are purchased to 
the maximum extent practicable and which is consistent with applicable 
provisions of Federal procurement laws. Each procurement program shall 
contain:
    (i) A preference program for purchasing qualifying biobased 
products,
    (ii) A promotion program to promote the preference program; and
    (iii) Provisions for the annual review and monitoring of the 
effectiveness of the procurement program.
    (2) In developing the preference program, Federal agencies shall 
adopt one of the following options, or a substantially equivalent 
alternative, as part of the procurement program:
    (i) A policy of awarding contracts on a case-by-case basis to the 
vendor offering a qualifying biobased product composed of the highest 
percentage of biobased content practicable except when such products:
    (A) Are not available within a reasonable time;
    (B) Fail to meet performance standards set forth in the applicable 
specifications, or the reasonable performance standards of the Federal 
agency; or
    (C) Are available only at an unreasonable price.
    (ii) A policy of setting minimum biobased content specifications in 
such a way as to assure that the required biobased content of 
qualifying biobased products is consistent with section 9002 of FSRIA 
and the requirements of the

[[Page 25640]]

guidelines in this part except when such products:
    (A) Are not available within a reasonable time;
    (B) Fail to meet performance standards for the use to which they 
will be put, or the reasonable performance standards of the Federal 
agency; or
    (C) Are available only at an unreasonable price.
    (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 Sec.  25.003 of 
the Federal Acquisition Regulation, provided that those products 
otherwise meet all requirements for participation in the preference 
program.
    (c) Procurement specifications. After the publication date of each 
designated product category and each designated intermediate ingredient 
or feedstock category, Federal agencies that have the responsibility 
for drafting or reviewing specifications for products procured by 
Federal agencies shall ensure within a specified time frame that their 
specifications require the use of qualifying biobased products, 
consistent with the guidelines in this part. USDA will specify the 
allowable time frame in each designation rule. The biobased content of 
qualifying biobased products within a designated product category or a 
designated intermediate ingredient or feedstock category may vary 
considerably from product to product based on the mix of ingredients 
used in its manufacture. Likewise, the biobased content of qualifying 
biobased products that qualify because they are made from materials 
within designated intermediate ingredient or feedstock categories may 
also vary significantly. In procuring qualifying biobased products, the 
percentage of biobased content should be maximized, consistent with 
achieving the desired performance for the product.
    6. Section 3201.5 is amended by revising the title of the section 
and by revising paragraphs (a), (b), and (c) to read as follows:


Sec.  3201.5  Category designation.

    (a) Procedure. Designated product categories, designated 
intermediate ingredient or feedstock categories, and designated final 
products composed of qualifying intermediate ingredients or feedstocks 
are listed in subpart B of this part.
    (1) In designating product categories, USDA will designate 
categories composed of generic groupings of specific products or 
complex assemblies and will identify the minimum biobased content for 
each listed category or subcategory. As product categories are 
designated for procurement preference, they will be added to subpart B 
of this part.
    (2) In designating intermediate ingredient or feedstock categories, 
USDA will designate categories composed of generic groupings of 
specific intermediate ingredients or feedstocks, and will identify the 
minimum biobased content for each listed category or sub-category. As 
categories are designated for product qualification, they will be added 
to subpart B of this part. USDA encourages manufacturers and vendors of 
intermediate ingredients or feedstocks to provide USDA with information 
relevant to significant potential applications for intermediate 
ingredients or feedstocks, including estimates of typical formulation 
rates.
    (3) During the process of designating intermediate ingredient or 
feedstock categories, USDA will also gather information on the various 
types of final products that are, or can be, made from those 
intermediate ingredients or feedstocks. Final products that are 
identified during the information gathering process will be listed in 
the Federal Register proposed rule for designating the intermediate 
ingredient or feedstock categories. A minimum biobased content for each 
of the final products will also be identified based on the amount of 
designated intermediate ingredients or feedstocks such products 
contain. Public comment will be invited on the list of potential final 
products, and the minimum biobased content for each, as well as on the 
intermediate ingredient and feedstock categories being proposed for 
designation. Public comments on the list of potential final products 
will be considered, along with any additional information gathered by 
USDA, and the list will be finalized. When the final rule designating 
the intermediate ingredient or feedstock categories, by adding them to 
subpart B of this part, is published in the Federal Register, the list 
of final products will also be added to subpart B of this part. Once 
these final products are listed in subpart B of this part, they will 
become eligible for the Federal procurement preference.
    (b) Considerations. (1) In designating product categories and 
intermediate ingredient or feedstock categories, USDA will consider the 
availability of qualifying biobased products and the economic and 
technological feasibility of using such products, including relative 
price. USDA will gather information on individual qualifying biobased 
products within a category and extrapolate that information to the 
category level for consideration in designating categories.
    (2) In accordance with USDA interpretation of the intent 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, USDA will designate for preferred procurement those 
product categories and intermediate ingredient or feedstock categories 
that are determined to create new and emerging markets for biobased 
materials.
    (c) Exclusions. Motor vehicle fuels, heating oil, and electricity 
are excluded by statute from this program.
    7. Section 3201.6 is amended by revising paragraph (a) to read as 
follows:


Sec.  3201.6  Providing product information to Federal agencies.

    (a) Informational Web site. An informational USDA Web site 
implementing section 9002 of FSRIA can be found at: http://www.biopreferred.gov. USDA will maintain a voluntary Web-based 
information site for manufacturers and vendors of qualifying biobased 
products and Federal agencies to exchange information, as described in 
paragraphs (a)(1) and (2) of this section.
    (1) Product Information. The Web site will provide information as 
to the availability, relative price, biobased content, performance and 
environmental and public health benefits of the designated product 
categories and designated intermediate ingredient or feedstock 
categories. USDA encourages manufacturers and vendors to provide 
product and business contact information for designated categories. 
Instructions for posting information are found on the Web site itself. 
USDA also encourages Federal agencies to utilize this Web site to 
obtain current information on designated categories, contact 
information on manufacturers and vendors, and access to information on 
product characteristics relevant to procurement decisions. In addition 
to any information provided on the Web site, manufacturers and vendors 
are expected to provide relevant information to Federal agencies, 
subject to the limitations specified in Sec.  3201.8(a), with respect 
to product characteristics, including verification of such 
characteristics if requested.
    (2) National Testing Center Registry. The Web site will include an 
electronic listing of recognized industry standard testing 
organizations that will serve biobased product manufacturers such as 
ASTM International, Society of Automotive Engineers, and the

[[Page 25641]]

American Petroleum Institute. USDA encourages stakeholders to submit 
information on other possible testing resources to the BioPreferred 
Program for inclusion.
* * * * *
    8. Section 3201.7 is revised to read as follows:


Sec.  3201.7  Determining biobased content.

    (a) Certification requirements. For any qualifying biobased product 
offered for preferred procurement, manufacturers and vendors must 
certify that the product meets the biobased content requirements for 
the designated product category or designated intermediate ingredient 
or feedstock category within which the qualifying biobased product 
falls. Paragraph (c) of this section addresses how to determine 
biobased content. Upon request, manufacturers and vendors must provide 
USDA and Federal agencies information to verify biobased content for 
products certified to qualify for preferred procurement.
    (b) Minimum biobased content. Unless specified otherwise in the 
designation of a particular product category or intermediate ingredient 
or feedstock category, the minimum biobased content requirements in a 
specific category designation refer to the organic carbon portion of 
the product, and not the entire product.
    (c) Determining biobased content. Verification of biobased content 
must be based on third party ASTM/ISO compliant test facility testing 
using the ASTM Standard Method D 6866, ``Standard Test Methods for 
Determining the Biobased Content of Solid, Liquid, and Gaseous Samples 
Using Radiocarbon Analysis.'' ASTM Standard Method D 6866 determines 
biobased content based on the amount of biobased carbon in the material 
or product as percent of the weight (mass) of the total organic carbon 
in the material or product.
    (1) Biobased products, intermediate ingredients or feedstocks. 
Biobased content will be based on the amount of biobased carbon in the 
product or material as percent of the weight (mass) of the total 
organic carbon in the product or material.
    (2) Final products composed of intermediate ingredient or feedstock 
materials. The biobased content of final products composed of 
intermediate ingredient or feedstock materials will be determined by 
multiplying the percentage by weight (mass) of each intermediate 
ingredient or feedstock material in the final product times the 
percentage of biobased content of each intermediate ingredient or 
feedstock material, summing the results (if more than one intermediate 
ingredient or feedstock is used), and dividing the resultant value by 
100.
    (3) Complex assemblies. The biobased content of a complex assembly 
product, where the product has ``n'' components, will be determined 
using the following equation:
[GRAPHIC] [TIFF OMITTED] TP01MY12.004

Where:

BC = biobased content of the complex assembly product, (percent);
BC<INF>i</INF> = biobased content of an individual component that 
has the potential to be manufactured with biobased material 
(percent);
W<INF>i</INF> = weight of an individual component that has the 
potential to be manufactured with biobased material, (mass unit);and
W<INF>T</INF> = total weight of all components that have the 
potential to be manufactured with biobased material (mass unit).

    For each category of complex assembly products designated for 
Federal preferred procurement, USDA will identify, at the time of 
designation, each individual component that has the potential to be 
manufactured with biobased material.
    (d) Products and intermediate ingredients or feedstocks with the 
same formulation. In the case of products and intermediate ingredients 
or feedstocks that are essentially the same formulation, but marketed 
under more than one brand name, biobased content test data need not be 
brand-name specific.
    9. Section 3201.8 is amended by revising the title of the section 
and by revising paragraphs (a) and (b) to read as follows:


Sec.  3201.8  Determining relative price, environmental and health 
benefits, and performance.

    (a) Providing information on relative price and environmental and 
health benefits. Federal agencies may not require manufacturers or 
vendors of qualifying biobased products to provide to procuring 
agencies more data than would be required of other manufacturers or 
vendors offering products for sale to a procuring agency (aside from 
data confirming the biobased contents of the products) as a condition 
of the purchase of biobased products from the manufacturer or vendor. 
USDA will work with manufacturers and vendors to collect information 
needed to estimate relative price of biobased products, complex 
assemblies, intermediate materials or feedstocks as part of the 
designation process, including application units, average unit cost, 
and application frequency. USDA encourages industry stakeholders to 
provide information on environmental and public health benefits based 
on industry accepted analytical approaches including, but not limited 
to: Material carbon footprint analysis, the ASTM D7075 standard for 
evaluating and reporting on environmental performance of biobased 
products, the International Standards Organization ISO 14040, the ASTM 
International life-cycle cost method (E917) and multi-attribute 
decision analysis (E1765), the British Standards Institution PAS 2050, 
and the National Institute of Standards and Technology BEES analytical 
tool. USDA will make such stakeholder-supplied information available on 
the BioPreferred Web site.
    (b) Performance test information. In assessing performance of 
qualifying biobased products, USDA requires that procuring agencies 
rely on results of performance tests using applicable ASTM, ISO, 
Federal or military specifications, or other similarly authoritative 
industry test standards. Such testing must be conducted by a laboratory 
compliant with the requirements of the standards body. The procuring 
official will decide whether performance data must be brand-name 
specific in the case of products that are essentially of the same 
formulation.
* * * * *


Sec.  3201.9  [Reserved]

    10. Remove and reserve Sec.  3201.9.
    11. Revise the heading to Subpart B of Part 3201 to read as 
follows:

Subpart B--Designated Product Categories and Intermediate 
Ingredients or Feedstocks

    Dated: April 25, 2012.
Oscar Gonzales,
Deputy Assistant Secretary for Administration, U.S. Department of 
Agriculture.
[FR Doc. 2012-10420 Filed 4-30-12; 8:45 am]
BILLING CODE 3410-93-P


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