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.

Proposed Rules Federal Register

25632 

Vol. 77, No. 84 

Tuesday, May 1, 2012 

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.’’ 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: biopreferred@usda.gov. 

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. 

• 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. 

• 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: 

biopreferred@usda.gov; 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/Bio

Preferred_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 

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

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25634 Federal Register / Vol. 77, No. 84 / Tuesday, May 1, 2012 / Proposed Rules 

Type Costs Benefits 

Qualitative ............................ Unable to quantify at this time ........................................ Unable to quantify at this time. 

Qualitative ............................ 1. Costs of developing biobased alternative products .... 1. Advances the objectives of the BioPreferred program, as envisioned by Congress in developing the 

2002 and 2008 Farm Bills. 

2. Costs to gather and submit biobased product information for BioPreferred Web site.2. Opens new (Federal) market for biobased products 

that USDA designates. 

3. Loss of market share by manufacturers who choose 

not to offer biobased versions of products.

3. Opportunity for new and emerging biobased products 

to be publicized via BioPreferred 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 § 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 §§ 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 

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Federal Register / Vol. 77, No. 84 / Tuesday, May 1, 2012 / Proposed Rules 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 § 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 § 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 subparagraphs under paragraph (a) of 

§ 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 § 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: 

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25636 Federal Register / Vol. 77, No. 84 / Tuesday, May 1, 2012 / Proposed Rules 

Where: 

BC = biobased content of the complex 

assembly product, (percent); 

BCi = biobased content of an individual 

component that has the potential to be 

manufactured with biobased material 

(percent); 

Wi = weight of an individual component that 

has the potential to be manufactured 

with biobased material, (mass unit); and 

WT = 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 nonbiobased 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: 

• 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 

• Component X weighs 5 pounds and is 

made from a resin with 40 percent biobased 

content 

• Component Y weighs 7 pounds and is 

made from a resin with 50 percent biobased 

content 

• Component Z weighs 15 pounds and is 

made from a resin with 60 percent biobased 

content 

• The biobased content of the completed 

complex assembly is calculated as follows: 

Example 2: 

• 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) 

• Component X weighs 5 pounds and is 

made from a petroleum-based resin (0 

percent biobased content) 

• Component Y weighs 7 pounds and is 

made from a resin with 20 percent biobased 

content 

• Component Z weighs 15 pounds and is 

made from a resin with 90 percent biobased 

content 

• The biobased content of the completed 

complex assembly is calculated as follows: 

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 § 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 § 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 


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agency. In response to the language in 

section 9001 of the FCEA and numerous 

comments by stakeholders, USDA 

previously amended § 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 

§ 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 § 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 

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25638 Federal Register / Vol. 77, No. 84 / Tuesday, May 1, 2012 / Proposed Rules 

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 nonbiobased 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: 

§ 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 

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

§ 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: 

§ 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: 

§ 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 

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25640 Federal Register / Vol. 77, No. 84 / Tuesday, May 1, 2012 / Proposed Rules 

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 § 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: 

§ 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: 

§ 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 

§ 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 

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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: 

§ 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: 

Where: 

BC = biobased content of the complex 

assembly product, (percent); 

BCi = biobased content of an individual 

component that has the potential to be 

manufactured with biobased material 

(percent); 

Wi = weight of an individual component that 

has the potential to be manufactured 

with biobased material, (mass unit);and 

WT = 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: 

§ 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. 

* * * * * 

§ 3201.9 [Reserved] 

10. Remove and reserve § 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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