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



[[Page 4769]]

Vol. 89

Wednesday,

No. 16

January 24, 2024

Part IV





Department of Agriculture





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Office of Procurement and Property Management





Rural Business-Cooperative Service





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7 CFR Parts 3201, 3202, and 4270





Biobased Markets Program; Proposed Rule

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

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DEPARTMENT OF AGRICULTURE

Office of Procurement and Property Management

7 CFR Parts 3201 and 3202

Rural Business-Cooperative Service

7 CFR Part 4270

[Docket No. RBS-22-BUSINESS-0004]
RIN 0570-AB05


Biobased Markets Program

AGENCY: Rural Business-Cooperative Service, USDA.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Rural Business-Cooperative Service (RBCS or the Agency), 
an agency of the Rural Development (RD) mission area within the U.S. 
Department of Agriculture (USDA), is issuing a proposed rule with 
request for comments to adopt changes from the Agriculture Improvement 
Act of 2018 (2018 Farm Bill). These proposed changes include the merger 
of the Guidelines for Designating Biobased Products for Federal 
Procurement and the Voluntary Labeling Program for Biobased Products 
into one streamlined regulation, Biobased Markets (BioPreferred) 
Program. The plain language summary of the proposal is available on 
Regulations.gov in the docket for rulemaking.

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

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

FOR FURTHER INFORMATION CONTACT: Vernell Thompson, Procurement Analyst, 
USDA RD, 1400 Independence Avenue SW, Washington, DC 20250-1522, STOP 
3250; email: <a href="/cdn-cgi/l/email-protection#a5d3c0d7cbc0c9c98bd1cdcac8d5d6cacbe5d0d6c1c48bc2cad3"><span class="__cf_email__" data-cfemail="7f091a0d111a1313510b1710120f0c10113f0a0c1b1e51181009">[email protected]</span></a>; phone (202) 720-4145.

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

I. Authority
II. Background
III. Organization of the Rule
IV. Summary of Proposed Changes
    A. Section 4270.1 Purpose and Scope
    B. Section 4270.2 Definitions
    C. Section 4270.3 Applicability
    D. Section 4270.4 Criteria for Eligibility
    E. Section 4270.5 Procurement Programs
    F. Section 4270.6 Category Designation
    G. Section 4270.7 Determining Biobased Content
    H. Section 4270.8 [Reserved]
    I. Section 4270.9 Initial Approval Process
    J. Section 4270.10 [Reserved]
    K. Section 4270.11 Requirements Associated With Promotional 
Certification Materials
    L. Section 4270.12 Violations of Program Requirements
    M. Section 4270.13 Appeal Process
    N. Section 4270.14 Reporting and Recordkeeping
    O. Section 4270.15 Oversight and Monitoring
    P. Section 4270.99 OMB Control Number
V. Executive Orders/Acts
    A. Executive Order 12866--Classification
    B. Executive Order 12372--Intergovernmental Consultation
    C. Paperwork Reduction Act
    D. National Environmental Policy Act
    E. Regulatory Flexibility Act
    F. Environmental Impact Statement
    G. Executive Order 12988--Civil Justice Reform
    H. Unfunded Mandates Reform Act (UMRA)
    I. Executive Order 13132--Federalism
    J. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    K. E-Government Act Compliance
    L. Civil Rights Impact Analysis
    M. USDA Non-Discrimination Statement

I. Authority

    The USDA Biobased Markets Program, called the BioPreferred[supreg] 
Program, is established under the authority of section 9002 of the Farm 
Security and Rural Investment Act (FSRIA) of 2002 (Pub. L. 107-171) 
(the 2002 Farm Bill), as amended by the Food, Conservation, and Energy 
Act of 2008 (Pub. L. 10-246) (the 2008 Farm Bill), the Agricultural Act 
of 2014 (Pub. L. 113-79) (the 2014 Farm Bill), and the Agriculture 
Improvement Act of 2018 (Pub. L. 115-334) (the 2018 Farm Bill). Section 
9002 of the 2002 Farm Bill, as amended by the 2008, 2014, and 2018 Farm 
Bills, is referred to in this proposed rule as section 9002 of FSRIA.

II. Background

    The Agency is proposing to implement the amendments made to section 
9002 of FSRIA by the 2018 Farm Bill by combining the Guidelines for 
Designating Biobased Products for Federal Procurement (7 CFR part 3201) 
and the Voluntary Labeling Program for Biobased Products (7 CFR part 
3202), the legacy rules of the BioPreferred Program, into one 
regulation, 7 CFR part 4270, and proposing to make amendments as 
outlined in section IV of this proposed rule.
    The legacy rules established the two core initiatives of the 
BioPreferred Program. part 3201 detailed the rules for the procurement 
of Biobased Products by Federal agencies and their contractors, 
established the process for designating categories of Biobased Products 
for preferred Federal procurement, maintained the list of Designated 
Product Categories, and outlined the requirements for Biobased Products 
to qualify for preferred Federal procurement. Part 3202 established the 
rules for manufacturers and vendors of Biobased Products to become 
certified to use the USDA Certified Biobased Product Label (Label) and 
provided rules for maintaining certification and utilizing the Label. 
With this rulemaking, the Agency is proposing to merge the legacy rules 
into one streamlined regulation which will facilitate the objective of 
the BioPreferred Program, which is to encourage the increased use of 
Biobased Products in all market sectors. Additionally, the Agency 
believes these changes will benefit BioPreferred Program Stakeholders 
by implementing process improvements and tying the two initiatives more 
closely together, making it easier to qualify for both initiatives.

III. Organization of the Rule

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

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

[[Page 4771]]

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

IV. Summary of Proposed Changes

A. Section 4270.1 Purpose and Scope

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

B. Section 4270.2 Definitions

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

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

C. Section 4270.3 Applicability

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

D. Section 4270.4 Criteria for Eligibility

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

[[Page 4773]]

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

[[Page 4774]]

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

E. Section 4270.5 Procurement Programs

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

[[Page 4775]]

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

F. Section 4270.6 Category Designation

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

[[Page 4776]]

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

G. Section 4270.7 Determining Biobased Content

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

[[Page 4777]]

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

H. Section 4270.8 [Reserved]

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

I. Section 4270.9 Initial Approval Process

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

[[Page 4778]]

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

[[Page 4779]]

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

[[Page 4780]]

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

J. Section 4270.10 [Reserved]

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

K. Section 4270.11 Requirements Associated With Promotional 
Certification Materials

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

[[Page 4781]]

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

L. Section 4270.12 Violations of Program Requirements

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

[[Page 4782]]

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

[[Page 4783]]

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

M. Section 4270.13 Appeal Process

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

N. Section 4270.14 Reporting and Recordkeeping

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

O. Section 4270.15 Oversight and Monitoring

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

[[Page 4784]]

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

P. Section 4270.99 OMB Control Number

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

V. Executive Orders/Acts

A. Executive Order 12866--Classification

    This rulemaking has been determined to be not significant for 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget (OMB).

B. Executive Order 12372--Intergovernmental Consultation

    This program is not subject to the requirements of Executive Order 
12372, Intergovernmental Review of Federal Programs, as implemented 
under 2 CFR part 415.

C. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35, as amended), the Agency invites comments on this 
information collection for which it intends to request approval from 
OMB.
    Comments on this document must be received by March 25, 2024.
    Comments are invited on (a) whether the collection of information 
is necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility; (b) the 
accuracy of the agency's estimate of burden including the validity of 
the methodology and assumption used; (c) ways to enhance the quality, 
utility and clarity of the information to be collected; and (d) ways to 
minimize the burden of the collection of information on those who are 
to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques on 
other forms of information technology.
    Comments may be submitted by going to the Federal eRulemaking 
Portal. Go to https://www.regulations.gov and in the ``Search 
Documents'' box, enter the Docket Number or the RIN provided above in 
this document, and click the ``Search'' button.
    Title: 7 CFR part 4270.
    OMB Control Number: 0570-NEW.
    Abstract: The BioPreferred Program was established by section 9002 
of FSRIA. The BioPreferred Program will establish guidelines for (1) 
designating categories of products that are, or can be, produced with 
biobased Intermediate Ingredients or feedstocks and whose procurement 
by procuring agencies and other relevant Stakeholders will carry out 
the objectives of section 9002 of FSRIA; (2) establishing criteria for 
eligibility and the process through which Biobased Products can 
participate in the BioPreferred Program, be subject to preferred 
Federal procurement, and be eligible to display the USDA Certified 
Biobased Product Label; (3) establish specifications for the correct 
and incorrect uses of the USDA Certified Biobased Product Label and 
Certification Icon, which apply to Participating Organizations and 
Other Entities; and (4) establish actions for noncompliance.
    The information required for the BioPreferred Program is similar to 
much of the information currently being required under the legacy 
rules. Under the legacy rules, the current information being collected 
is approved under OMB Control numbers 0570-0071 (part 3202) and 0570-
0073 (part 3201). This regulation combines the legacy rules into one 
regulation and streamlines the requirements. The following estimates 
are based on the average over the first 3 years the Program is in 
place.

[[Page 4785]]

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 10.3234 hours per response.
    Respondents: Private entities.
    Estimated Number of Respondents: 520.
    Estimated Number of Responses per Respondent: 2.0096.
    Estimated Total Annual Burden on Respondents: 10,788.
    Copies of this information collection may be obtained from 
Katherine Anne Mathis, Regulatory Management Division, Rural 
Development Innovation Center, U.S. Department of Agriculture, 1400 
Independence Ave. SW, Stop 0793, Washington, DC 20250; telephone: 202-
713-7565; email: <a href="/cdn-cgi/l/email-protection#82e9e3f6eae7f0ebece7acefe3f6eaebf1c2f7f1e6e3ace5edf4"><span class="__cf_email__" data-cfemail="b9d2d8cdd1dccbd0d7dc97d4d8cdd1d0caf9cccaddd897ded6cf">[email protected]</span></a>. All responses to this 
information collection and recordkeeping notice will be summarized and 
included in the request for OMB approval. All comments also become a 
matter of public record.

D. National Environmental Policy Act

    In accordance with the National Environmental Policy Act of 1969, 
Public Law 91-190, this proposed rule has been reviewed in accordance 
with 7 CFR part 1970. The Agency has determined that (i) this action 
meets the criteria established in 7 CFR 1970.53(f); (ii) no 
extraordinary circumstances exist; and (iii) the action is not 
``connected'' to other actions with potentially significant impacts, is 
not considered a ``cumulative action'' and is not precluded by 40 CFR 
1506.1. Therefore, the Agency has determined that the action does not 
have a significant effect on the human environment, and therefore 
neither an Environmental Assessment nor an Environmental Impact 
Statement is required.

E. Regulatory Flexibility Act

    The proposed rule has been reviewed with regard to the requirements 
of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned 
has determined and certified by signature on this document that this 
rulemaking will not have a significant economic impact on a substantial 
number of small entities since this rulemaking action does not involve 
a new or expanded Program nor does it require any more action on the 
part of a small business than required of a large entity.

F. Executive Order 12988--Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988. 
In accordance with this rule: (1) unless otherwise specifically 
provided, all State and local laws that conflict with this rulemaking 
will be preempted; (2) no retroactive effect will be given to this 
rulemaking except as specifically prescribed in the rule; and (3) 
administrative proceedings of the National Appeals Division of the 
Department of Agriculture (7 CFR part 11) must be exhausted before 
bringing suit in court that challenges action taken under this rule.

G. Unfunded Mandates Reform Act (UMRA)

    Title II of the UMRA, Public Law 104-4, establishes requirements 
for Federal agencies to assess the effects of their regulatory actions 
on State, local, and tribal Governments and on the private sector. 
Under section 202 of the UMRA, Federal agencies generally must prepare 
a written statement, including cost-benefit analysis, for proposed and 
Final Rules with ``Federal mandates'' that may result in expenditures 
to State, local, or tribal Governments, in the aggregate, or to the 
private sector, of $100 million or more in any year. When such a 
statement is needed for a rule, section 205 of the UMRA generally 
requires a Federal agency to identify and consider a reasonable number 
of regulatory alternatives and adopt the least costly, most cost-
effective, or least burdensome alternative that achieves the objectives 
of the rule.
    This rulemaking contains no Federal mandates (under the regulatory 
provisions of title II of the UMRA) for State, local, and tribal 
Governments or for the private sector. Therefore, this rulemaking is 
not subject to the requirements of sections 202 and 205 of the UMRA.

H. Executive Order 13132--Federalism

    The policies contained in this rulemaking do not have any 
substantial direct effect on States, on the relationship between the 
National Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Nor does this 
rulemaking impose substantial direct compliance costs on state and 
local governments. Therefore, consultation with the States is not 
required.

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

    This Executive order imposes requirements on RBCS in the 
development of regulatory policies that have tribal implications or 
preempt tribal laws. RBCS has determined that the rule does not have a 
substantial direct effect on one or more Indian tribe(s) or on either 
the relationship or the distribution of powers and responsibilities 
between the Federal Government and Indian tribes. Thus, this rulemaking 
is not subject to the requirements of Executive Order 13175. If tribal 
leaders are interested in consulting with RBCS on this rule, they are 
encouraged to contact USDA's Office of Tribal Relations or RD's Native 
American Coordinator at: <a href="/cdn-cgi/l/email-protection#cf8e868e818fbabcabaee1a8a0b9"><span class="__cf_email__" data-cfemail="83c2cac2cdc3f6f0e7e2ade4ecf5">[email protected]</span></a> to request such a consultation.

J. E-Government Act Compliance

    RD is committed to the E-Government Act, which requires Government 
agencies in general to provide the public the option of submitting 
information or transacting business electronically to the maximum 
extent possible.

K. Civil Rights Impact Analysis

    RD has reviewed this rulemaking in accordance with USDA Regulation 
4300-4, Civil Rights Impact Analysis, to identify any major civil 
rights impacts the rule might have on Program participants on the basis 
of age, race, color, national origin, sex, disability, marital or 
familial status. Based on the review and analysis of the rule and all 
available data, issuance of this proposed rule is not likely to 
negatively impact low and moderate-income populations, minority 
populations, women, Indian tribes or persons with disability, by virtue 
of their age, race, color, national origin, sex, disability, or marital 
or familial status. No major civil rights impact is likely to result 
from this proposed rule.

L. USDA Non-Discrimination Statement

    In accordance with Federal civil rights laws and USDA civil rights 
regulations and policies, the USDA, its Mission Areas, agencies, staff 
offices, employees, and institutions participating in or administering 
USDA programs are prohibited from discriminating based on race, color, 
national origin, religion, sex, gender identity (including gender 
expression), sexual orientation, disability, age, marital status, 
family/parental status, income derived from a public assistance 
program, political beliefs, or reprisal or retaliation for prior civil 
rights activity, in any program or activity conducted or funded by USDA 
(not all bases apply to all programs). Remedies and complaint filing 
deadlines vary by program or incident.
    Program information may be made available in languages other than 
English. Persons with disabilities who require alternative means of 
communication to obtain program information (e.g., Braille, large 
print,

[[Page 4786]]

audiotape, American Sign Language) should contact the responsible 
Mission Area, agency, or staff office; or the 711 Relay Service.
    To file a program discrimination complaint, a complainant should 
complete a Form AD-3027, USDA Program Discrimination Complaint Form, 
which can be obtained online at https://www.usda.gov/sites/default/files/documents/ad-3027.pdf from any USDA office, by calling (866) 632-
9992, or by writing a letter addressed to USDA. The letter must contain 
the complainant's name, address, telephone number, and a written 
description of the alleged discriminatory action in sufficient detail 
to inform the Assistant Secretary for Civil Rights (ASCR) about the 
nature and date of an alleged civil rights violation. The completed AD-
3027 form or letter must be submitted to USDA by:

a. Mail: U.S. Department of Agriculture, Office of the Assistant 
Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 
20250-9410; or
b. Fax: (833) 256-1665 or (202) 690-7442; or
c. Email: <a href="/cdn-cgi/l/email-protection#5424263b332635397a3d3a20353f3114212730357a333b22"><span class="__cf_email__" data-cfemail="0c7c7e636b7e6d61226562786d67694c797f686d226b637a">[email protected]</span></a>

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

    Biobased products, Business and industry, Government procurement.

    For the reasons stated in the preamble, USDA is proposing to amend 
chapters XXXII and XLII of title 7 of the Code of Federal Regulations 
as follows:

CHAPTER XXXII--OFFICE OF PROCUREMENT AND PROPERTY MANAGEMENT

PART 3201 [Removed and Reserved]

0
1. Under the authority of 5 U.S.C. 301 and 7 U.S.C. 8102, remove and 
reserve part 3201.

PART 3202 [Removed and Reserved]

0
2. Under the authority of 5 U.S.C. 301 and 7 U.S.C. 8102, remove and 
reserve part 3202.

CHAPTER XLII--RURAL BUSINESS-COOPERATIVE SERVICE

0
3. Add part 4270, consisting of Sec. Sec.  4270.1 through 4270.99 to 
read as follows:

PART 4270--USDA BIOBASED MARKETS PROGRAM: FEDERAL PROCUREMENT AND 
VOLUNTARY LABELING

Sec.
4270.1 Purpose and scope.
4270.2 Definitions.
4270.3 Applicability.
4270.4 Criteria for eligibility.
4270.5 Procurement programs.
4270.6 Category Designation.
4270.7 Determining Biobased Content.
4270.8 [Reserved]
4270.9 Initial approval process.
4270.10 [Reserved]
4270.11 Requirements associated with promotional certification 
materials.
4270.12 Violations of program requirements.
4270.13 Appeal process.
4270.14 Reporting and recordkeeping.
4270.15 Oversight and monitoring.
4270.16-4270.98 [Reserved]
4270.99 OMB control number.

    Authority: 7 U.S.C. 8102.


Sec.  4270.1  Purpose and scope.

    (a) This part sets forth the procedures and guidelines for the 
implementation of the USDA Biobased Markets Program, called the 
BioPreferred[supreg] Program, established by section 9002 of the Farm 
Security and Rural Investment Act of 2002 (FSRIA) as amended by the 
Food, Conservation, and Energy Act of 2008, and further amended by the 
Agricultural Act of 2014, and the Agriculture Improvement Act of 2018 
(Pub. L. 107-171, 116 Stat. 476, 7 U.S.C. 8102).
    (b) The guidelines in this part establish:
    (1) A process for designating categories of products that are, or 
can be, produced with biobased Intermediate Ingredients or feedstocks 
and whose procurement by procuring agencies and other relevant 
Stakeholders will carry out the objectives of section 9002 of FSRIA;
    (2) The criteria for eligibility and the process through which 
Biobased Products can participate in the BioPreferred Program, be 
subject to preferred Federal procurement, and be eligible to display 
the USDA Certified Biobased Product Label;
    (3) Specifications for the correct and incorrect uses of the USDA 
Certified Biobased Product Label and Certification Icon, which apply to 
Participating Organizations and Other Entities; and
    (4) Actions that constitute noncompliance with this part.


Sec.  4270.2  Definitions.

    Agricultural materials. Plant, animal, and marine matter, raw 
materials or residues used in the manufacturing of a commercial or 
industrial product excluding food, feed, motor vehicle fuel, heating 
oil, and electricity.
    Applicable minimum biobased content. The required Biobased Content 
level set by USDA that a product must meet or exceed to qualify for the 
Federal procurement preference and use of the USDA Certified Biobased 
Product Label.
    ASTM International (ASTM). A nonprofit organization, formerly known 
as American Society for Testing and Materials, that provides an 
international forum for the development and publication of voluntary 
consensus standards for materials, products, systems, and services.
    Biobased content. The amount of recent, biologically derived 
organic carbon in the material or product expressed as a percent of 
weight (mass) of the total organic carbon in the material or product.
    Biobased content testing. The testing that is performed to verify a 
product's biobased Content. For products participating in the 
BioPreferred Program, the Biobased Content is to be determined using 
ASTM Method D6866, Standard Test Methods for Determining the Biobased 
Content of Solid, Liquid, and Gaseous Samples Using Radiocarbon 
Analysis.
    Biobased product(s). (1) A product determined by USDA to be a 
commercial or industrial product (other than food or feed) that is:
    (i) Composed, in whole or in significant part, of Biological 
Products, including renewable domestic Agricultural Materials, 
Renewable Chemicals, and forestry materials; or
    (ii) An Intermediate Ingredient or Feedstock.
    (2) The term Biobased Product includes, with respect to forestry 
materials, Forest Products that meet Biobased Content requirements, 
notwithstanding the market share the product holds, the age of the 
product, or whether the market for the product is new or emerging. For 
the purposes of the BioPreferred Program, the term Biobased Product 
does not include motor vehicle fuels, heating oils, or electricity.
    Biodegradability. A quantitative measure of the extent to which a 
material is capable of being decomposed by biological agents, 
especially bacteria.
    Biological products. Products derived from living materials.
    Certification icon. The distinctive image, as shown in Figure 1, 
that depicts the symbols of the sun, the soil, and the aquatic 
environments to be used with USDA's permission to identify Certified 
Biobased Products. The icon will be used in materials including, but 
not limited to, advertisements, catalogs, procurement databases, 
websites, and promotional and educational materials. The colors used in 
the Certification Icon can be found in the USDA BioPreferred Program 
Brand and Marketing Guidelines available on the BioPreferred Program 
website (https://www.biopreferred.gov).

[[Page 4787]]

[GRAPHIC] [TIFF OMITTED] TP24JA24.000

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

    Certified application. An application for a Biobased Product to 
participate in the BioPreferred Program that has completed all steps of 
the certification process, including an initial Prequalification review 
and Biobased Content Testing as required, and has received a notice of 
certification.
    Certified biobased product. A Biobased Product that is eligible for 
preferred Federal procurement because it meets the definition and 
Applicable Minimum Biobased Content criteria for one or more Designated 
Product Categories as specified in the Register of Designated 
Categories, and for which the Participating Organization has received 
approval from USDA to utilize the USDA Certified Biobased Product 
Label.
    Complex assembly. A system of distinct materials and components 
assembled to create a finished product with specific functional intent 
where some or all of the system components contain some amount of 
biobased material or feedstock.
    Days. As used in this part means calendar Days.
    Defined product category. Any product category that has been 
established for a specified grouping of Biobased Products with similar 
characteristics and intended uses. A Defined Product Category includes 
a description of the product characteristics that fall within the 
category. The other product category is not a Defined Product Category.
    Designated product category. A grouping of Biobased Products, 
including finished products, Intermediate Ingredients or Feedstocks, 
and Complex Assemblies, identified in the Register of Designated 
Categories on the BioPreferred Program website (https://www.biopreferred.gov ). Certified or Qualified Biobased Products that 
meet the criteria for at least one designated category are eligible for 
the procurement preference established under section 9002 of FSRIA.
    Designated representative. An entity authorized by a Participating 
Organization to act on their behalf to obtain certification or to affix 
the USDA Certified Biobased Product Label to the Participating 
Organization's Certified Biobased Product or its packaging or perform 
other marketing functions.
    Federal agency. Any executive agency or independent establishment 
in the legislative or judicial branch of the Government (except the 
Senate, the House of Representatives, the Architect of the Capitol, and 
any activities under the Architect's direction).
    Forest product. A product made from materials derived from the 
practice of forestry or the management of growing timber. The term 
Forest Product includes:
    (1) Pulp, paper, paperboard, pellets, lumber, and other wood 
products; and
    (2) Any recycled products derived from forest materials.
    Formulated product. A product that is prepared or mixed with other 
Ingredients, according to a specified formula and includes more than 
one Ingredient.
    FSRIA. The Farm Security and Rural Investment Act of 2002, Public 
Law 107-171, 116 Stat. 134 (7 U.S.C. 8102).
    Ingredient. A component, or a part of a compound or mixture, that 
may be active or inactive.
    Innovative criteria. Benchmark for demonstrating new and emerging 
approaches in the growing, harvesting, sourcing, procuring, processing, 
manufacturing, or application of the Biobased Product. Biobased 
Products must meet one of the Innovative Criteria as defined by USDA to 
be eligible for preferred Federal procurement and to display the USDA 
Certified Biobased Product Label.
    Intermediate ingredient or feedstock. A material or compound made 
in whole or in significant part from Biological Products, including 
renewable Agricultural Materials (including plant, animal, and marine 
materials) or forestry materials that have undergone value added 
processing (including thermal, chemical, biological, or a significant 
amount of mechanical processing), excluding harvesting operations, 
offered for sale by a Participating Organization and that is 
subsequently used to make a more complex compound or product.
    ISO. The International Organization for Standardization, a network 
of national standards institutes working in partnership with 
international organizations, governments, industries, business, and 
consumer representatives.
    ISO 9001 conformant. An entity that meets all the requirements of 
the ISO 9001 standard, but that is not required to be ISO 9001 
certified. ISO 9001 refers to the ISO's standards and guidelines 
relating to quality management systems. Quality management is defined 
as what the manufacturer does to ensure that its products or services 
satisfy the customer's quality requirements and comply with any 
regulations applicable to those products or services.
    Other entity. Any person, group, public or private organization, or 
business other than USDA or Participating Organizations that may wish 
to use the USDA Certified Biobased Product Label or Certification Icon 
in informational or promotional material related to a Certified 
Biobased Product.
    Parent product. The Certified Biobased Product in a test exempt 
relationship that was originally tested for certification. A test 
exempt product references the Certified Application of its Parent 
Product.
    Participating organization. An entity that has completed the steps 
required to have a Certified and/or Qualified Biobased Product under 
the BioPreferred Program. Participants can include entities that 
perform the necessary chemical and mechanical processes to make a 
Biobased Product, and entities that offer for sale Biobased Products 
that they do not manufacture but that are marketed and sold under their 
own brand.
    Prequalification. The step during the certification process at 
which an application is conditionally approved pending the product 
undergoing Biobased Content Testing.
    Procuring agency. Any Federal agency that is using Federal funds 
for procurement or any business contracting with any Federal agency 
with respect to work performed under the contract.
    Qualified biobased product(s). A product that is eligible for 
preferred Federal procurement because it meets the definition and 
Applicable Minimum Biobased Content criteria for one or more Designated 
Product Categories as specified in the Register of Designated 
Categories.
    Register of Designated Categories. The list of product categories 
that are eligible for the procurement preference established under 
section 9002 of FSRIA, including the category name, description, 
required minimum Biobased Content, and date of finalization. The 
Register of Designated Categories can be found on the BioPreferred 
Program website at https://www.biopreferred.gov.
    Renewable chemical. A monomer, polymer, plastic, formulated 
product, or chemical substance produced from renewable biomass.

[[Page 4788]]

    Secretary. The Secretary of the United States Department of 
Agriculture.
    Stakeholder. Individuals or officers of state or local government 
organizations, private non-profit institutions, or organizations, and 
private businesses or consumers.
    USDA. The United States Department of Agriculture.
    USDA Certified Biobased Product label. A combination of the 
Certification Icon (as defined in this part); one of three statements 
identifying whether the USDA certification applies to the product, the 
package, or both the product and package; and the letters ``FP'' to 
indicate that the product is within a Designated Product Category and 
eligible for preferred Federal procurement. The distinctive image, as 
shown in Figures 2, 3, and 4, identifies products as USDA Certified 
Biobased Products. The colors used in the USDA Certified Biobased 
Product Label can be found in the USDA BioPreferred Program Brand and 
Marketing Guidelines available on the BioPreferred Program website 
(https://www.biopreferred.gov). The USDA Certified Biobased Product 
Label is owned and its use is managed by USDA (standard trademark law 
definition applies).
[GRAPHIC] [TIFF OMITTED] TP24JA24.001

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

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

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


Sec.  4270.3  Applicability.

    (a) Applicability to Federal procurements--(1) Applicability to 
procurement actions. The guidelines in this part apply to all 
procurement actions by Procuring Agencies involving product categories 
designated by USDA in this part, where the Procuring Agency makes 
purchases of $10,000 or more of one of these products during a fiscal 
year, or where the quantity of such products or of functionally 
equivalent products purchased during the preceding fiscal year was 
$10,000 or more. The $10,000 threshold applies to Federal agencies as a 
whole rather than to agency subgroups such as regional offices or 
subagencies of a larger Federal department or agency.
    (2) Exception for procurements subject to Environmental Protection 
Agency (EPA) regulations under the Solid Waste Disposal Act. For any 
procurement by any Procuring Agency that is subject to regulations of 
the Administrator of the EPA under section 6002 of the Solid Waste 
Disposal Act, as amended by the Resource Conservation and Recovery Act 
of 1976 (40 CFR part 247), these guidelines do not apply to the extent 
that the requirements of this part are inconsistent with such 
regulations.
    (3) Procuring products composed of the highest percentage of 
Biobased Content. Section 9002(a)(2) of FSRIA (7 U.S.C. 8102(a)(2)) 
requires Procuring Agencies to procure Qualified Biobased Products 
composed of the highest percentage of Biobased Content practicable. 
Procuring agencies may decide not to procure such Qualified Biobased 
Products if they are not reasonably priced or readily available or do 
not meet specified or reasonable performance standards.
    (4) Incidental purchases. This part does not apply to purchases of 
Qualified Biobased Products that are unrelated to or incidental to 
Federal funding (i.e., purchases that are not the direct result of a 
contract or agreement with persons supplying products to a Procuring 
Agency or providing support services that include the supply or use of 
products).
    (5) Exemptions. The following applications are exempt from the 
preferred procurement requirements of this part:
    (i) Military equipment, which are products or systems designed or 
procured for combat or combat-related missions.
    (ii) Spacecraft systems and launch support equipment.
    (b) Applicability to Participating Organizations and Other 
Entities--(1) Participating Organizations. The requirements in this 
part apply to all prospective Participating Organizations who wish to 
participate in the BioPreferred Program. Those wishing to participate 
in the BioPreferred Program are required to obtain and maintain product 
certification. USDA will allow only one owner or Designated 
Representative of a branded product to participate. Participating 
Organizations may not obtain product certification for a product using 
a brand name owned by a separate organization unless they are acting on 
behalf of the brand owner, with their approval, as a Designated 
Representative.
    (2) Other Entities. The requirements in this part apply to Other 
Entities who wish to use the USDA Certified Biobased Product Label or 
Certification Icon in promoting the sales or the public awareness of 
Certified Biobased Products.


Sec.  4270.4  Criteria for eligibility.

    A product must meet each of the criteria specified in paragraphs 
(a) through (c) of this section to be eligible to participate in the 
BioPreferred Program.
    (a) Biobased Product. The product for which certification is sought 
must be a Biobased Product as defined in Sec.  4270.2. Products must 
undergo Biobased Content Testing as described in Sec.  4270.7 to 
confirm the products meet or exceed the applicable minimums.
    (1) Products that are qualified for preferred Federal procurement 
but not certified as of the date of publication of this rule. If the 
product is qualified for preferred Federal procurement through the 
BioPreferred Program as of [DATE OF PUBLICATION OF THE FINAL RULE IN 
THE FEDERAL REGISTER], the product will remain eligible under the 
legacy rules, which can be found on the BioPreferred Program website 
(https://www.biopreferred.gov), until the product is reformulated, 
discontinued, or until [DATE THREE YEARS AFTER DATE OF PUBLICATION IN 
THE FEDERAL REGISTER], whichever comes first. These products must 
follow the procedures described in Sec.  4270.9 before [DATE THREE 
YEARS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] to remain 
eligible.
    (2) Exclusions. Motor vehicle fuels, heating oil, and electricity 
are excluded by statute from this Program. For the purposes of this 
Program, food, animal feed, and products intended to be ingested or 
inhaled such as pharmaceuticals or nutraceuticals are also excluded.

[[Page 4789]]

    (b) Minimum Biobased Content. The Biobased Content of the product 
must be equal to or greater than the Applicable Minimum Biobased 
Content, as described in paragraphs (b)(1) and (2) of this section.
    (1) Products that fall under one or more Defined Product 
Categories--(i) Product is within a single product category. If the 
Biobased Product is within a single Defined Product Category that, at 
the time the application for certification is submitted, has been 
designated by USDA for preferred Federal procurement, the Applicable 
Minimum Biobased Content requirement for the product is the minimum 
Biobased Content specified for the Defined Product Category as found in 
the Register of Designated Categories on the BioPreferred Program 
website at https://www.biopreferred.gov.
    (ii) Product is within multiple product categories. If the Biobased 
Product is marketed within more than one Defined Product Category 
identified for preferred Federal procurement at the time the 
application for certification is submitted and uses the same packaging 
for each use, the product's Biobased Content must meet or exceed the 
specified minimum Biobased Content for each of the applicable product 
categories, as found in the Register of Designated Categories on the 
BioPreferred Program website at https://www.biopreferred.gov, to become 
certified in each category. If the product's Biobased Content does not 
meet the specified minimum Biobased Content for the category that most 
closely matches the product's primary intended use, the product is not 
eligible to participate.
    (2) Products that do not meet the definition of at least one 
Defined Product Category. If the Biobased Product does not meet the 
definition of a Defined Product Category that has been designated by 
USDA at the time the application for certification is submitted, the 
Applicable Minimum Biobased Content is 30 percent. USDA will evaluate 
such products as described in Sec.  4270.6 to determine the viability 
of designating a new product category. If a new category is 
subsequently designated for preferred Federal procurement, the 
Applicable Minimum Biobased Content will become, as of the effective 
date indicated in the Register of Designated Categories, the minimum 
Biobased Content specified for the newly Defined Product Category.
    (c) Innovative Criteria. In determining eligibility for 
certification under the BioPreferred Program, USDA will consider as 
eligible only those products that use innovative approaches in the 
growing, harvesting, sourcing, procuring, processing, manufacturing, or 
application of the Biobased Product. USDA will consider products that 
meet one or more of the criteria in paragraphs (c)(1) through (4) of 
this section to be eligible for certification. USDA will also consider 
other documentation of innovative approaches in the growing, 
harvesting, sourcing, procuring, processing, manufacturing, or 
application of Biobased Products on a case-by-case basis. USDA may deny 
or revoke certification for any products whose manufacturers are unable 
to provide USDA with the documentation necessary to verify claims that 
innovative approaches are used.
    (1) Product applications. (i) The Biobased Product or material is 
used or applied in applications that differ from historical 
applications; or
    (ii) The Biobased Product or material is grown, harvested, 
manufactured, processed, sourced, or applied in other innovative ways; 
or
    (iii) The Biobased Content of the product or material makes its 
composition different from products or material used for the same 
historical uses or applications.
    (2) Manufacturing and processing. (i) The Biobased Product or 
material is manufactured or processed using renewable, biomass energy 
or using technology that is demonstrated to increase energy efficiency 
or reduce reliance on fossil-fuel based energy sources; or
    (ii) The Biobased Product or material is manufactured or processed 
with technologies that reduce waste and ensure high feedstock material 
recovery and use.
    (3) Environmental Product Declaration. The product has a current 
Environmental Product Declaration as defined by International Standard 
ISO 14025, Environmental Labels and Declarations--Type III 
Environmental Declarations--Principles and Procedures.
    (4) Raw material sourcing. (i) The raw material used in the product 
is sourced from a Legal Source, a Responsible Source, or a Certified 
Source as designated by ASTM D7612 (Standard Practice for Categorizing 
Wood and Wood-Based Products According to Their Fiber Sources); or
    (ii) The raw material used in the product is 100% resourced or 
recycled (such as material obtained from building deconstruction or 
agricultural wastes); or
    (iii) The raw material used in the product is acquired as a result 
of activities related to a natural disaster, debris clearing, right-of-
way maintenance, tree health improvement, or public safety; or
    (iv) The raw material used in the product is grown, harvested, 
manufactured, processed, sourced, or applied in other sustainable and 
ethically sourced ways as determined by USDA. Examples include but are 
not limited to rainforest and habitat conservation, wildlife 
protection, ethical workplace practices, and adherence to environmental 
management systems, such as ISO 14001.


Sec.  4270.5  Procurement programs.

    (a) Integration into the Federal procurement framework. The Office 
of Federal Procurement Policy, in cooperation with USDA, has the 
responsibility to coordinate this policy's implementation in the 
Federal procurement regulations. These guidelines are not intended to 
address full implementation of these requirements into the Federal 
procurement framework. This will be accomplished through revisions to 
the Federal Acquisition Regulation.
    (b) Federal agency preferred procurement programs. (1) Each Federal 
agency will maintain and implement a procurement program that will 
assure that Qualified Biobased Products are purchased to the maximum 
extent practicable and that is consistent with applicable provisions of 
Federal procurement laws. Each procurement program will contain:
    (i) A preference program for purchasing Qualified Biobased 
Products;
    (ii) A training program to educate the Federal agency and its 
contractors on the requirements for purchasing Qualified Biobased 
Products;
    (iii) Provisions for the annual review and monitoring of the 
effectiveness of the procurement program;
    (iv) Provisions for reporting quantities and types of Biobased 
Products purchased by the Federal agency and its contractors through 
the BioPreferred Program Portal in the System for Award Management 
(https://sam.gov) as required by 48 CFR 52.223-2; and
    (v) Provisions for reviewing and eliminating specifications that 
prohibit the purchasing of Qualified Biobased Products.
    (2) In developing their preference program, Federal agencies will 
adopt one of the following options, or a substantially equivalent 
alternative, as part of the procurement program:
    (i) A policy of awarding contracts on a case-by-case basis to the 
vendor offering a Qualified Biobased Product

[[Page 4790]]

composed of the highest percentage of Biobased Content practicable 
except when such products:
    (A) Are not available within a reasonable timeframe;
    (B) Fail to meet performance standards for their intended use, or 
the reasonable performance standards of the Federal agency; or
    (C) Are not available at a reasonable price.
    (ii) A policy of setting minimum Biobased Content specifications in 
such a way as to assure that the required Biobased Content of Qualified 
Biobased Products is consistent with section 9002 of FSRIA and the 
requirements of the guidelines in this part.
    (iii) A policy of documenting and reporting cases where it is not 
possible to award contracts and set specifications in such a way that 
is consistent with section 9002 of FSRIA and the requirements of this 
part.
    (3) In implementing the preference program, Federal agencies will 
treat as eligible for the preference Biobased Products from designated 
countries, as that term is defined in 48 CFR 25.003 (Federal 
Acquisition Regulation), provided that those products otherwise meet 
all requirements for participation in the preference program.
    (4) Each Federal agency will continue to establish an annual 
targeted biobased-only procurement requirement under which the 
Procuring Agency will issue a certain number of biobased-only contracts 
when the Procuring Agency is purchasing products, or purchasing 
services that include the use of products, that are included in a 
Biobased Product category designated by the Secretary.
    (c) Procurement specifications. Federal agencies that have the 
responsibility for drafting or reviewing specifications for products 
procured by Federal agencies will ensure that their specifications 
require the use of Qualified Biobased Products, consistent with the 
guidelines in this part. These specifications must be put in place no 
later than six months after a designated category of products is 
finalized and added to the Register of Designated Categories. USDA will 
identify the allowable time frame for specifications to be put in place 
in the Register of Designated Categories found on the BioPreferred 
Program website at https://www.biopreferred.gov. The Biobased Content 
of Qualified Biobased Products within a Designated Product Category may 
vary considerably from product to product based on the mix of 
Ingredients used in its manufacture. In procuring Qualified Biobased 
Products, the percentage of Biobased Content should be maximized, 
consistent with achieving the desired performance for the product.


Sec.  4270.6  Category designation.

    (a) Procedure. Designated Product Categories are found in the 
Register of Designated Categories on the BioPreferred Program website 
(https://www.biopreferred.gov).
    (1) General. In designating product categories, USDA will designate 
categories composed of generic groupings of specific products, 
Intermediate Ingredients or Feedstocks, or Complex Assemblies and will 
identify the minimum Biobased Content for each listed category or 
subcategory. As product categories are designated for procurement 
preference, they will be added to the Register of Designated Categories 
on the BioPreferred Program website at https://www.biopreferred.gov.
    (i) Adding new product categories to the Register of Designated 
Categories. If a product does not fall within a Defined Product 
Category that has been designated by USDA at the time the application 
for certification is submitted, the Applicable Minimum Biobased Content 
is 30 percent, and it will be listed in the other product category. 
USDA will evaluate the viability of designating new product categories 
to categorize products in the other product category more 
appropriately, following the procedure described in paragraphs 
(a)(1)(i)(A) through (D) of this section.
    (A) New Defined Product Categories that are identified during the 
category evaluation process will be added to the Register of Designated 
Categories on the BioPreferred Program website (https://www.biopreferred.gov). Using the data gathered during the certification 
process, USDA will establish a provisional category name, definition, 
and minimum Biobased Content for each new product category based on the 
product(s) that fall within the new category.
    (B) The provisional minimum will be in place for a period of six 
months following the addition of the new Defined Product Category to 
the Register of Designated Categories. During that time, any product 
that falls within the category based on the category definition and has 
a Biobased Content that is either at least 30 percent or within 30 
percentage points of the provisional minimum, whichever is higher, will 
be considered for inclusion.
    (C) After a period of six months following the addition of the new 
product category to the Register of Designated Categories, USDA will 
re-evaluate the provisional category name, description, and minimum 
Biobased Content based on the data gathered during the year. At that 
time, USDA will make final the product category name, description, and 
minimum Biobased Content, and the category will no longer be considered 
provisional.
    (D) Procuring agencies, in accordance with this part, are 
encouraged to give a procurement preference for Qualified Biobased 
Products that fall within provisionally designated categories and are 
required to give a procurement preference for Qualified Biobased 
Products that fall within designated categories no later than six 
months after the finalized product category is added to the Register of 
Designated Categories. By that date, Federal agencies responsible for 
products to be procured will ensure that the relevant specifications 
require the use of Biobased Products that fall within the designated 
categories.
    (ii) Revising Defined Product Categories on the Register of 
Designated Categories. USDA will periodically evaluate the need to 
update the product categories included in the Register of Designated 
Categories by reviewing items including, but not limited to, the 
category names, definitions, minimum Biobased Contents, subcategories, 
and the need for the category or subcategory. If the data support 
making updates, USDA will amend the category and publish the updated 
category to the Register of Designated Categories. No later than six 
months after the amended category is published to the Register of 
Designated Categories, procuring agencies, in accordance with this 
part, will give a procurement preference for Qualified Biobased 
Products that fall within the amended designated category. By that 
date, Federal agencies responsible for products to be procured will 
ensure that the relevant specifications require the use of Biobased 
Products that fall within the designated categories.
    (2) Public comments. Interested parties, including manufacturers, 
vendors, groups of manufacturers and/or vendors, and trade associations 
may propose an alternative Applicable Minimum Biobased Content for a 
new, provisional, defined, or Designated Product Category by, in 
consultation with USDA, developing and conducting an analysis to 
support the proposed alternative Applicable Minimum Biobased Content. 
If approved by USDA, the proposed alternative Applicable Minimum 
Biobased Content would become the Applicable Minimum Biobased Content 
for products that fall within that category to be certified.

[[Page 4791]]

    (3) Continued eligibility. If the applicable required minimum 
Biobased Content for a product to be eligible to participate in the 
BioPreferred Program is revised by USDA, the product will remain 
certified or qualified, as applicable, only if it meets the new minimum 
Biobased Content level. In those cases where the Biobased Content of a 
certified or qualified product fails to meet the new minimum Biobased 
Content level, USDA will notify the Participating Organization that 
their certification is no longer valid. Such Participating 
Organizations must notify USDA of their intent to increase the Biobased 
Content of their product to a level at or above the new minimum 
Biobased Content level within 120 Days and must re-apply for 
certification within an additional 120 Days if they wish to continue to 
participate in the Program. The affected product's certification will 
expire if the Participating Organization does not notify USDA of the 
intent to reformulate within 120 Days or if the Participating 
Organization does not re-apply within the additional 120 Days. 
Participating Organizations who have re-applied for certification may 
continue using the existing USDA Certified Biobased Product Label until 
they receive notification from USDA on the results of their re-
application for certification.
    (b) Considerations. (1) In designating product categories, USDA 
will consider the availability of Qualified Biobased Products and the 
economic and technological feasibility of using such products, 
including price. USDA will gather information on individual Qualified 
Biobased Products within a category and extrapolate that information to 
the category level for consideration in designating categories.
    (2) In designating product categories for the BioPreferred Program, 
USDA will consider as eligible only those products that use innovative 
approaches in growing, harvesting, sourcing, procuring, processing, 
manufacturing, or application of the Biobased Product. USDA will 
consider products that meet one or more of the criteria in Sec.  
4270.4(b)(1) and (2) to be eligible for the BioPreferred Program. USDA 
will also consider other documentation of innovative approaches in 
growing, harvesting, sourcing, procuring, processing, manufacturing, or 
application of Biobased Products on a case-by-case basis.


Sec.  4270.7  Determining Biobased Content.

    (a) Certification requirements. For any Biobased Product seeking to 
participate in the BioPreferred Program, prospective Participating 
Organizations must submit an application as specified in Sec.  4270.9 
and confirm that the product meets the Applicable Minimum Biobased 
Content requirements and the definition for the Defined Product 
Category within which the Biobased Product falls. Paragraph (c) of this 
section addresses how to determine Biobased Content.
    (b) Minimum Biobased Content. Unless specified otherwise in the 
designation of a particular product category, the minimum Biobased 
Content requirements in a specific category designation refer to the 
organic carbon portion of the product, and not the entire product.
    (c) Determining Biobased Content. Verification of Biobased Content 
must be based on third party ASTM/ISO compliant test facility testing 
using the ASTM Standard Method D6866 (Standard Test Methods for 
Determining the Biobased Content of Solid, Liquid, and Gaseous Samples 
Using Radiocarbon Analysis). ASTM Standard Method D6866 determines 
Biobased Content based on the amount of biobased carbon in the product 
as a percent of the weight (mass) of the total organic carbon in the 
product.
    (1) General. Biobased Content will be based on the amount of 
biobased carbon in the product as a percent of the weight (mass) of the 
total organic carbon in the product.
    (2) Complex Assemblies--(i) Equation. The Biobased Content of a 
Complex Assembly product, where the product has n components whose 
Biobased Content and organic carbon content can be experimentally 
determined, may be calculated using the following equation:
[GRAPHIC] [TIFF OMITTED] TP24JA24.004

Where:

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

    (ii) Proportional sampling. The Biobased Content of a Complex 
Assembly product may be determined by sub-sampling (by weight) each 
organic constituent in a proportion representative of its content 
within the assembly and combining the sub-samples into a measurable 
quantity so that a single ASTM D6866 analysis of the combined sub-
samples is representative of the assembly.
    (d) Products and Intermediate Ingredients or Feedstocks with the 
same formulation. In the case of products and Intermediate Ingredients 
or Feedstocks that are essentially the same formulation but marketed 
under more than one brand name, Biobased Content test data may be 
shared as specified in paragraphs (d)(1) and (2) of this section.
    (1) Test exemptions. In situations where a new product for which 
certification is sought is composed of the same Ingredients and has the 
same Biobased Content as a product that has already been certified and 
tested by a company that the interested party has a direct relationship 
with, the interested party may apply for a test exemption by 
referencing the Certified Application of the certified Parent Product 
in lieu of having the new product undergo Biobased Content Testing 
using ASTM D6866.
    (2) Families. In situations where a Participating Organization is 
seeking certification for two or more products that are composed of the 
same Ingredients and have the same Biobased Content but are marketed 
for different uses or under more than one brand name, the products may 
be grouped in a family. Biobased Content test data must only be 
obtained for one of the products in the family, and the test data will 
apply to all products within the family.


Sec.  4270.8  [Reserved]


Sec.  4270.9  Initial approval process.

    (a) Application. Prospective Participating Organizations seeking 
USDA approval to use the USDA Certified Biobased Product Label and to 
become qualified for preferred Federal procurement for an eligible 
Biobased Product must submit an application for each Biobased Product 
or product family. USDA has developed a standardized application form 
that must be used. The standardized application form and instructions 
are available on the BioPreferred Program website (https://www.biopreferred.gov). The contents of an acceptable application are as 
specified in paragraphs (a)(1) and (2) of this section.

[[Page 4792]]

    (1) General content. The applicant must provide the information as 
specified in paragraphs (a)(1)(i) though (viii) of this section.
    (i) Contact information, including the name, mailing address, email 
address, and telephone number of the applicant.
    (ii) The product's brand name(s) or other identifying information.
    (iii) Intended uses of the product.
    (iv) The biobased source(s) of the raw materials used in the 
product.
    (v) Information to document that one or more of the Innovative 
Criteria specified in Sec.  4270.4(c) has been met.
    (vi) The corresponding Designated Product Category classification 
for preferred Federal procurement.
    (vii) The estimated Biobased Content of the product.
    (viii) A web link directly to the applicant's website (if 
available).
    (2) Commitments. The applicant must verify in the application that 
the product for which use of the USDA Certified Biobased Product Label 
is sought is a Biobased Product as defined in Sec.  4270.2. The 
applicant must also agree to statements in the application that commit 
the applicant to submitting to USDA the information specified in 
paragraph (a)(1)(i) through (viii) of this section, some of which USDA 
will post to the BioPreferred Program website (https://www.biopreferred.gov), and to providing USDA with up-to-date 
information on this website.
    (b) Evaluation of applications--(1) Initial evaluation. USDA will 
evaluate each application to determine if it contains the information 
specified in paragraph (a) of this section and to determine compliance 
with the criteria specified in Sec.  4270.4. If USDA determines that 
the application is incomplete, USDA will contact the applicant via 
email with an explanation of the application's deficiencies. Once the 
deficiencies have been addressed, the applicant may respond to USDA 
with an explanation of how the application's deficiencies were 
addressed for re-evaluation by USDA, and USDA will update the 
application as needed. If the applicant does not provide a response 
within 90 Days, USDA will make the application inactive.
    (2) Prequalification. (i) USDA will provide a written response to 
each applicant as quickly as practicable, no later than 90 Days after 
the receipt of a complete application, depending on the responsiveness 
of the applicant. The written response will inform the applicant of 
whether the application has been conditionally approved, or 
prequalified, to move forward to Biobased Content Testing or has been 
disapproved. After notification that the application has been 
conditionally approved, if any of the information specified in 
paragraphs (a)(1)(i) through (viii) of this section has changed, the 
applicant must provide updates to USDA (for posting by USDA on the 
BioPreferred Program website).
    (ii) For those applications that are conditionally approved to move 
forward, Biobased Content Testing must be completed as described in 
Sec.  4270.7. Test results obtained prior to the application being 
conditionally accepted or obtained in a manner that does not comply 
with this part cannot be accepted.
    (iii) After Biobased Content Testing has been completed, USDA will 
evaluate the results and determine if the product meets the criteria 
described in Sec.  4270.4(b). For those applications that meet the 
criteria described in Sec.  4270.4(b), USDA will issue a notice of 
certification, as specified in paragraph (c) of this section. A notice 
of certification must be issued before the use of the USDA Certified 
Biobased Product Label can begin.
    (iv) For those applications that are disapproved, USDA will inform 
the applicant in writing of each criterion not met.
    (c) Notice of certification. Once USDA confirms that the test 
results document an acceptable Biobased Content, USDA will issue a 
notice of certification to the applicant that includes the date of 
certification, name of the product(s) covered by the certification, and 
certified Biobased Content of the product(s). Upon receipt of a notice 
of certification, the applicant may begin using the USDA Certified 
Biobased Product Label on the Certified Biobased Product and may 
advertise that the product is a Certified Biobased Product. Paragraph 
(c)(1) of this section presents the procedures for revising the 
information provided under paragraphs (a)(1)(i) through (viii) of this 
section after a notice of certification has been issued.
    (1) If at any time, during the application process or after a 
product has been certified, any of the information specified in 
paragraphs (a)(1)(i) through (viii) of this section changes, the 
applicant must notify USDA of the change within 30 Days. Such 
notification must be provided in writing via email to USDA. Failure to 
notify USDA of any change made to a Certified Biobased Product may 
result in the violation actions described in Sec.  4270.12.
    (2) After receiving the notice of certification, the Participating 
Organization may request to display a Biobased Content percentage that 
is lower than the content measured by the ASTM D6866 test results but 
is greater than or equal to the applicable category minimums. Such 
requests must be sent in writing via email to USDA and must be approved 
by USDA.
    (3) If, after reviewing the test results, USDA determines that the 
product does not meet the Applicable Minimum Biobased Content, USDA 
will issue a notice of denial of certification and will inform the 
applicant in writing via email of each criterion not met.
    (d) Term of certification--(1) General. The effective date of 
certification is included in the notice of certification from USDA. 
Except as specified in paragraphs (d)(1)(iii) and (iv) and (d)(2) 
through (4) of this section, certifications will remain in effect for 
five years. The applicant will be notified 90 Days before the 
certification expires, at which time, the product must be re-tested in 
accordance with the procedure as specified in Sec.  4270.7.
    (i) If the certification is not renewed within the 90 Days, the 
product certification will expire, the product will no longer be a 
Certified Biobased Product, and the product information will be removed 
from the BioPreferred Program website (https://www.biopreferred.gov).
    (ii) If a Participating Organization whose product certification 
has expired wishes to renew the certification, the participant must 
follow the procedures required for original certification.
    (iii) All certifications are subject to periodic USDA auditing 
activities, as described in Sec.  4270.15. If a Participating 
Organization fails to participate in such audit activities or if such 
audit activities reveal Biobased Content violations, as specified in 
Sec.  4270.12, the certification will be subject to suspension and 
revocation according to the procedures specified in Sec.  
4270.12(c)(3).
    (iv) If USDA discovers that a certification has been issued for an 
ineligible product as a result of errors on the part of USDA during the 
approval process, USDA will notify the Participating Organization in 
writing that the certification is revoked effective 30 Days from the 
date of the notice.
    (2) Reformulations. If at any time during the term of certification 
a Certified Biobased Product is reformulated, the participant must 
notify USDA of the change. USDA will consider the changes and inform 
the participant if re-testing is required as specified in paragraphs 
(d)(2)(i) through (iii) of this section.
    (i) If the product formulation or raw materials of a Certified 
Biobased Product are changed such that the

[[Page 4793]]

Biobased Content of the product is reduced to a level below that 
reported in the Certified Application, the existing certification will 
no longer be valid for the product under these revised conditions and 
the Participating Organization and its Designated Representatives must 
discontinue affixing the USDA Certified Biobased Product Label to the 
product and must not initiate any further advertising of the product 
using the USDA Certified Biobased Product Label. USDA will consider a 
product under such revised conditions to be a reformulated product, and 
the Participating Organization must submit a new application for 
certification using the procedures specified in paragraph (a) of this 
section.
    (ii) If the product formulation of a Certified Biobased Product is 
changed such that the Biobased Content of the product is increased from 
the level reported in the Certified Application, and the raw materials 
are not significantly changed, the existing certification will continue 
to be valid for the product.
    (iii) If the applicable required minimum Biobased Content for a 
product to participate in the BioPreferred Program is revised by USDA, 
Participating Organizations must follow the requirements specified in 
Sec.  4270.6(a)(3).
    (3) Test exemptions. For those products that are exempt from 
Biobased Content Testing as described in Sec.  4270.7, the test exempt 
certification will expire at the same time as the Certified Application 
of the Parent Product.
    (4) Special considerations. (i) For those Participating 
Organizations who have Qualified Biobased Products that are not 
certified as of the date of publication of this rule, USDA will solicit 
Biobased Content test data obtained using the ASTM D6866 test method. 
Participants who provide USDA with ASTM D6866 test data that has been 
obtained within the past five years from the date of publication of 
this rule and whose products meet the requirements as described in 
Sec.  4270.4 will receive certification for their products covered by 
the test data. The term of certification as described in paragraph 
(d)(1) of this section will then apply.
    (ii) Participants who have Qualified Biobased Products that are not 
certified as of [DATE OF PUBLICATION OF THIS FINAL RULE IN THE FEDERAL 
REGISTER] and do not provide recent ASTM D6866 test results within 
three years of the publication of this rule will be required to have 
their products tested and certified as described in Sec.  4270.7. If 
certification is not completed within three years of the publication of 
this rule, these Biobased Products will no longer be listed as 
Qualified Biobased Products on the BioPreferred Program's website 
(https://www.biopreferred.gov) and will be removed from the 
BioPreferred Program's website (https://www.biopreferred.gov).
    (iii) For those participants who have Certified Biobased Products 
that have been certified for more than five years as of the date of 
publication of this rule, USDA will require that the certification be 
renewed as described in paragraph (d)(1) of this section within three 
years of [DATE OF PUBLICATION OF THIS FINAL RULE IN THE FEDERAL 
REGISTER]. If an application for renewal is not completed within three 
years, the product certification will expire, the product will no 
longer be a Certified Biobased Product, and the product information 
will be removed from the BioPreferred Program website (https://www.biopreferred.gov).


Sec.  4270.10  [Reserved]


Sec.  4270.11  Requirements associated with promotional certification 
materials.

    (a) How participation in the BioPreferred Program can be promoted. 
Guidance on promoting participation in the BioPreferred Program is 
provided in paragraphs (a)(1) and (2) of this section. USDA will 
evaluate additional requests for uses of promotional materials or 
references to the Program and will offer guidance on the BioPreferred 
Program website (https://www.biopreferred.gov).
    (1) Participating Organizations. Only Participating Organizations 
that have received a notice of certification, or Designated 
Representatives of the Participating Organization, may utilize 
certification materials provided by the BioPreferred Program. A 
Participating Organization who has received a notice of certification 
for a product under this part:
    (i) May use the USDA Certified Biobased Product Label (in one of 
the approved variations, as applicable) on the product, its packaging, 
and other related materials including, but not limited to, 
advertisements, catalogs, specification sheets, procurement sheets, 
procurement databases, promotional material, websites, or user manuals 
for that product, according to the requirements set forth in this 
section.
    (ii) Is responsible for the manner in which the USDA Certified 
Biobased Product Label is used by its companies, as well as its 
Designated Representatives, including advertising agencies, marketing 
and public relations firms, and subcontractors.
    (2) Other Entities. Other Entities who have entered into a 
partnership agreement with USDA may use the BioPreferred Program's 
promotional certification materials to advertise or promote Certified 
Biobased Products in materials including, but not limited to, 
advertisements, catalogs, procurement databases, websites, and 
promotional and educational materials. Other Entities may use:
    (i) The Certification Icon;
    (ii) The phrase ``USDA Certified Biobased Product/Package/Product & 
Package,'' as applicable; and
    (iii) The BioPreferred Program name in general statements as 
described in paragraph (b) of this section, as long as the statements 
do not imply that a non-certified product is certified or endorsed by 
USDA.
    (b) Correct usage of the USDA Certified Biobased Product Label and 
other promotional certification materials. (1) The USDA Certified 
Biobased Product Label can be affixed only to Certified Biobased 
Products and their associated packaging.
    (2) The USDA Certified Biobased Product Label may be used in 
material including, but not limited to, advertisements, catalogs, 
procurement databases, websites, and promotional and educational 
materials to distinguish certified products from those that are not 
certified. The USDA Certified Biobased Product Label may be used in 
advertisements for both Certified Biobased Products and non-certified/
labeled products if the advertisement clearly indicates which products 
are certified/labeled. Care must be taken to avoid implying that any 
non-certified products are certified.
    (3) When educating the public about the USDA Certified Biobased 
Product Label, the watermarked sample version of the USDA Certified 
Biobased Product Label may be used without reference to a specific 
Biobased Product. For example, the following or similar claims are 
acceptable: ``Look for the `USDA Certified Biobased Product Label.' It 
means that the product meets USDA standards for the minimum amount of 
Biobased Content and the manufacturer or vendor has provided relevant 
information on the product to be posted on the BioPreferred Program 
website (https://www.biopreferred.gov).'' This exception allows 
Participating Organizations or Other Entities to use a sample USDA 
Certified Biobased Product Label in documents such as corporate 
reports, but only in an informative manner, not as a statement of 
product certification.

[[Page 4794]]

    (4) The USDA Certified Biobased Product Label may appear next to a 
picture of the Certified Biobased Product(s) or text describing it.
    (5) The USDA Certified Biobased Product Label must stand alone and 
not be incorporated into any other certification mark or logo designs.
    (6) The USDA Certified Biobased Product Label may be embossed, 
stamped, or used as a watermark provided the use does not violate any 
BioPreferred Program brand standards or usage restrictions specified in 
this part.
    (7) The text portion of the USDA Certified Biobased Product Label 
must be written in English and may not be translated, even when the 
certification mark is used outside of the United States.
    (c) Incorrect usage of the USDA Certified Biobased Product Label 
and other promotional certification materials. (1) The USDA Certified 
Biobased Product Label will not be used on any product that has not 
been certified by USDA as a ``USDA Certified Biobased Product.''
    (2) The USDA Certified Biobased Product Label will not be used in a 
way that does not maintain the integrity of the label and the 
BioPreferred Program.
    (3) The word ``BioPreferred'' will not be used as a descriptor for 
anything other than the Program, including but not limited to products, 
categories, and companies. The BioPreferred Program name, the word 
``BioPreferred,'' and the phrase USDA Certified Biobased Product are 
not interchangeable. For example, certified products may not be 
referenced as being ``BioPreferred products.''
    (4) The USDA Certified Biobased Product Label will not be used on 
any advertisements or informal materials where both Certified Biobased 
Products and non-certified products are shown unless it is clear that 
the USDA Certified Biobased Product Label applies to only the Certified 
Biobased Product(s).
    (5) The BioPreferred Program name and the USDA Certified Biobased 
Product Label will not be used to imply endorsement by USDA or the 
BioPreferred Program of any particular product, service, or company.
    (6) The BioPreferred Program name and the USDA Certified Biobased 
Product Label will not be used in any form that could be misleading to 
the consumer.
    (7) The BioPreferred Program name and the USDA Certified Biobased 
Product Label will not be used by manufacturers or vendors of Certified 
Biobased Products in a manner disparaging to USDA or any other 
government body.
    (8) The BioPreferred Program name, the word ``BioPreferred,'' the 
USDA Certified Biobased Product Label, and the Certification Icon will 
not be altered or incorporated into other label or logo designs.
    (9) The USDA Certified Biobased Product Label will not be used on 
business cards, company letterhead, company stationary, or email 
signatures.
    (10) The BioPreferred Program name, the word ``BioPreferred,'' the 
USDA Certified Biobased Product Label, and the Certification Icon will 
not be used in, or as part of, any company name, logo, product name, 
service, or website, except as may be provided for in this part.
    (11) The BioPreferred Program name, the word ``BioPreferred,'' the 
USDA Certified Biobased Product Label, and the Certification Icon will 
not be used in a manner that violates any of the applicable 
requirements contained in this part.
    (d) Imported products. The USDA Certified Biobased Product Label 
can be used only with a product that is certified by USDA under this 
part. The USDA Certified Biobased Product Label cannot be used to imply 
that a product meets or exceeds the requirements of biobased programs 
in other countries. Products imported for sale in the U.S. must adhere 
to the same guidelines as U.S. sourced Biobased Products. Any product 
sold in the U.S. as a ``USDA Certified Biobased Product/Package/Product 
& Package'' must have received certification from USDA.
    (e) Elements of the USDA Certified Biobased Product Label. The USDA 
Certified Biobased Product Label will consist of the Certification 
Icon, the Biobased Content percentage, the letters ``FP'' to indicate 
that the product is qualified for preferred Federal procurement, and 
one of the three variations of text specified in paragraphs (e)(1) 
through (3) of this section, as applicable.
    (1) USDA Certified Biobased Product: Product.
    (2) USDA Certified Biobased Product: Package.
    (3) USDA Certified Biobased Product: Product & Package.
    (f) Physical aspects of the USDA Certified Biobased Product Label. 
The USDA Certified Biobased Product Label elements may not be altered, 
cut, separated into components, or distorted in appearance or 
perspective. The USDA Certified Biobased Product Label must appear only 
in the colors specified in paragraphs (f)(1) and (2) of this section 
unless approval is given by USDA for an exception.
    (1) A multi-color version of the USDA Certified Biobased Product 
Label is preferred. The USDA Certified Biobased Product Label colors to 
be applied will be stipulated in the ``USDA BioPreferred Program Brand 
and Marketing Guidelines'' document available on the BioPreferred 
Program website (https://www.biopreferred.gov).
    (2) Black or white outline versions of the USDA Certified Biobased 
Product Label are acceptable.
    (g) Placement of the USDA Certified Biobased Product Label. (1) The 
USDA Certified Biobased Product Label can appear directly on a product, 
its associated packaging, in user manuals, and in other materials 
including, but not limited to, advertisements, catalogs, procurement 
databases, and promotional and educational materials.
    (2) The USDA Certified Biobased Product Label will not be placed in 
a manner that is ambiguous about which product is a Certified Biobased 
Product or that could indicate certification of a non-certified 
product.
    (3) When used to distinguish a Certified Biobased Product in 
material including, but not limited to, advertisements, catalogs, 
procurement databases, websites, and promotional and educational 
materials, the USDA Certified Biobased Product Label must appear near a 
picture of the product or text describing it.
    (i) If all products on a page are Certified Biobased Products with 
the same Biobased Content percentage, the USDA Certified Biobased 
Product Label may be placed anywhere on that page.
    (ii) If a page contains a mix of Certified Biobased Products and 
non-certified Biobased Products, the USDA Certified Biobased Product 
Label will be placed in close proximity to the Certified Biobased 
Products. An individual USDA Certified Biobased Product Label near each 
Certified Biobased Product may be necessary to avoid confusion.
    (h) Minimum size and clear space requirements for the USDA 
Certified Biobased Product Label. (1) The USDA Certified Biobased 
Product Label may be sized to fit the individual application as long as 
the correct proportions are maintained, and all elements of the USDA 
Certified Biobased Product Label remain legible.
    (2) The USDA Certified Biobased Product Label must be surrounded by 
a border of clear space that must be of sufficient width to offset it 
from surrounding images and text to avoid confusion. If a one-color 
outline version of the USDA Certified Biobased Product

[[Page 4795]]

Label is used, the USDA Certified Biobased Product Label must appear on 
a solid background that is a contrasting color.
    (i) Where to obtain copies of the promotional certification 
materials. The USDA Certified Biobased Product Label and other 
associated promotional materials including the USDA BioPreferred 
Program Brand and Marketing Guidelines are available at the 
BioPreferred Program website (https://www.biopreferred.gov).
    (ii) [Reserved]


Sec.  4270.12  Violations of program requirements.

    This section identifies the types of actions that USDA considers 
violations under this part and the penalties (e.g., the suspension or 
revocation of certification) associated with such violations.
    (a) General. Violations under this section occur on a per product 
basis and the penalties are to be applied on a per product basis. 
Entities cited for a violation under this section may appeal using the 
provisions in Sec.  4270.13. If certification for a product is revoked, 
the Participating Organization whose certification has been revoked may 
seek re-certification for the product specified under the provisions in 
Sec.  4270.9.
    (b) Types of violations. Actions that will be considered violations 
of this part include, but are not limited to, the examples as described 
in paragraphs (b)(1) through (4) of this section:
    (1) Biobased Content violations. USDA reserves the right to request 
occasional testing of Certified Biobased Products without notice to 
compare the Biobased Content of the tested product with the product's 
Applicable Minimum Biobased Content and the Biobased content reported 
in its Certified Application. Such testing will be conducted using ASTM 
Method D6866 in accordance with the procedures discussed in Sec.  
4270.7.
    (i) If the testing shows that the Biobased Content of a Certified 
Biobased Product is less than its Applicable Minimum Biobased Content, 
then a violation of this part will have occurred.
    (ii) If the testing shows that the Biobased Content is less than 
that reported in the product's Certified Application but is still equal 
to or greater than its Applicable Minimum Biobased Content(s), USDA 
will provide written notification to the Participating Organization. 
The participant must submit, within 90 Days from receipt of USDA 
written notification, a new application for the lower Biobased Content. 
Failure to submit a new application within 90 Days will be considered a 
violation of this part.
    (A) The participant can submit a new application to use the 
Biobased Content reported to it by USDA in the written notification.
    (B) Alternatively, the participant may submit a new application and 
elect to retest the product in question. If the participant elects to 
retest the product, it must test a sample of the current product, and 
the procedures in Sec.  4270.9 must be followed. USDA reserves the 
right to select the sample that will be submitted for retesting.
    (2) USDA Certified Biobased Product Label violations. (i) Any usage 
or display of the USDA Certified Biobased Product Label that does not 
conform to the requirements specified in Sec.  4270.10.
    (ii) Affixing the USDA Certified Biobased Product Label to any 
product prior to issuance of a notice of certification from USDA.
    (iii) Affixing the USDA Certified Biobased Product Label to a 
Certified Biobased Product during periods when certification has been 
suspended or revoked.
    (iv) Using an image or icon other than the official USDA Certified 
Biobased Product Label in association with certification claims.
    (3) Application violations. Knowingly providing false or misleading 
information in any application for certification of a Biobased Product.
    (4) BioPreferred Program website violations. Failure to provide 
USDA with updated information when the information for a Certified 
Biobased Product becomes outdated or when new information for a 
Certified Biobased Product becomes available.
    (c) Noncompliance and escalation of actions. Any identified 
violations as described in paragraphs (b)(1) through (4) are considered 
noncompliance with this part. USDA will respond to noncompliance though 
actions that include, but are not limited to, the examples as described 
in paragraphs (c)(1) through (4).
    (1) Noncompliance. USDA will provide the applicable Participating 
Organization and any Other Entity involved, as known to USDA, written 
notification of any noncompliance identified by USDA, as well as 
actions that should be taken to resolve the noncompliance. USDA may 
remove the product or company information from the BioPreferred Program 
website (https://www.biopreferred.gov) until the noncompliance is 
corrected. If satisfactory resolution of the noncompliance is not 
reached, USDA will consider the noncompliance to be a violation of this 
part and may pursue further action as discussed in paragraphs (c)(2) 
through (4) of this section.
    (2) Violation. USDA will first issue a notice of violation. 
Entities who receive a notice of violation for any violation must 
correct the violation(s) within 30 Days from receipt of the notice of 
violation. If the entity receiving a notice of violation is a 
Participating Organization, USDA will also issue notices of suspensions 
and revocations, as discussed in paragraph (c)(3) of this section. USDA 
reserves the right to further pursue action against these entities as 
provided in paragraph (c)(4) of this section. If the entity receiving a 
notice of violation is an Other Entity (i.e., not a Participating 
Organization), then USDA may pursue action according to paragraph 
(c)(4) of this section.
    (3) Suspension and revocation. (i) If a violation is applicable to 
a Participating Organization and the participant fails to make the 
required corrections within 30 Days of receipt of a notice of 
violation, USDA will notify the participant, via email and certified 
mail as appropriate, of the continuing violation, and the certification 
for that product will be suspended. As of the date that the participant 
receives a notice of suspension, the participant and their Designated 
Representatives must not affix the USDA Certified Biobased Product 
Label to any of that product or associated packaging not already 
labeled and must not distribute any additional products bearing the 
USDA Certified Biobased Product Label. USDA will both remove the 
product information from the BioPreferred Program website (https://www.biopreferred.gov) and actively communicate the product suspension 
to buyers in a timely and overt manner.
    (ii) If, within 30 Days from receipt of the notice of suspension, 
the participant whose USDA product certification has been suspended 
makes the required corrections and notifies the USDA that the 
corrections have been made, the participant and their Designated 
Representatives may, upon receipt of USDA approval of the corrections, 
resume use of the USDA Certified Biobased Product Label. USDA will also 
restore the product information to the BioPreferred Program website 
(https://www.biopreferred.gov).
    (iii) If, following the 30-Day period, the participant does not 
make the required corrections, the certification for that product will 
be revoked. As of that date, the participant must not affix the USDA 
Certified Biobased Product Label to any of that product not already 
labeled. In addition, the participant and

[[Page 4796]]

their Designated Representatives are prohibited from further sales of 
the product to which the USDA Certified Biobased Product Label is 
affixed, and the product will no longer be listed on the BioPreferred 
Program website (https://www.biopreferred.gov) as a product qualified 
for preferred Federal procurement.
    (iv) If a participant whose product certification has been revoked 
wishes to participate in the BioPreferred Program again, the 
participant must follow the procedures required for the original 
certification specified in Sec.  4270.9.
    (4) Other remedies. In addition to the suspension or revocation of 
the product certification, depending on the nature of the violation, 
USDA may pursue suspension or debarment of the entities involved in 
accordance with 2 CFR part 417 and 48 CFR subpart 9.4. USDA further 
reserves the right to pursue any other remedies available by law, 
including any civil or criminal remedies, against any entity that 
violates the provisions of this part.


Sec.  4270.13  Appeal process.

    Participating Organizations whose product certification has been 
revoked may appeal to USDA.
    (a) Filing an appeal. (1) Appeals to the Agency must be filed 
within 30 Days of receipt by the appellant of a notice of suspension 
and revocation. Appeals must be filed in writing via email to the 
BioPreferred Program's email address as noted on the BioPreferred 
Program website (https://www.biopreferred.gov).
    (2) All appeals must include a copy of the adverse decision and a 
statement of the appellant's reasons for believing that the decision 
was not made in accordance with the applicable Program regulations, 
policies, or procedures, or otherwise was not proper.
    (b) Reviewing appeals. (1) If USDA sustains a Participating 
Organization's appeal of a notice of suspension and revocation, the 
participant and its Designated Representative(s) may immediately resume 
affixing the USDA Certified Biobased Product Label to the Certified 
Biobased Product and sell and distribute the Certified Biobased Product 
with the USDA Certified Biobased Product Label. In addition, USDA will 
reinstate the product's information to the BioPreferred Program website 
(https://www.biopreferred.gov).
    (2) If USDA denies a participant's appeal of a notice of suspension 
and revocation, then the notice of suspension and revocation stands.
    (c) Appeals of decisions made on appeals. Appeals of any of the 
BioPreferred Program's decisions may be made to the Rural Business 
Cooperative Service Administrator. Appeals must be made, in writing, 
within 30 Days of receipt of USDA's decision and addressed to: Rural 
Business Cooperative Service Administrator, 1400 Independence Avenue 
SW, Washington, DC 20250-1522 STOP 3250. If the Rural Business 
Cooperative Service Administrator sustains an appeal, the provisions of 
paragraph (b) of this section will apply.


Sec.  4270.14  Reporting and recordkeeping.

    (a) Providing product information to Federal agencies--(1) 
Informational website. An informational USDA website implementing 
section 9002 of FSRIA can be found at: https://www.biopreferred.gov. 
USDA will maintain a web-based information site for participating 
originations with Certified Biobased Products and Federal agencies to 
exchange information, as described in paragraphs (a)(1)(i) through (iv) 
of this section as applicable.
    (i) Product information. The website will, as determined to be 
necessary by the Secretary based on the availability of data, provide 
the information specified in Sec.  4270.9. USDA encourages Federal 
agencies to utilize this website to obtain current information on 
designated categories, contact information for Participating 
Organizations, and access to information on product characteristics 
relevant to procurement decisions. In addition to any information 
provided on the website, participants are expected to provide relevant 
information to Federal agencies, subject to the limitations specified 
in paragraph (a)(1)(ii) of this section, with respect to product 
characteristics, including verification of such characteristics if 
requested.
    (ii) Providing information on price and environmental and health 
benefits. Federal agencies may not require Participating Organizations 
with Certified Biobased Products to provide procuring agencies with 
more data than would be required of other manufacturers or vendors 
offering products for sale to a Procuring Agency (aside from data 
confirming the Biobased Contents of the products) as a condition of the 
purchase of Biobased Products from the participant. USDA encourages 
industry Stakeholders to provide information on environmental and 
public health benefits based on industry accepted analytical approaches 
including, but not limited to, material carbon footprint analysis, the 
International Standards Organization (ISO) 14040, the ASTM 
International life-cycle cost method (E917) and multi-attribute 
decision analysis (E1765), and the British Standard Institution PAS 
2050. USDA will make such Stakeholder-supplied information available on 
the BioPreferred Program website (https://www.biopreferred.gov).
    (iii) Industry standards test information. The product information 
will include any relevant industry standard test information as 
supplied by the participant. In assessing performance of a Certified 
Biobased Product, USDA requires that procuring agencies rely on results 
of performance tests using applicable ASTM, ISO, Federal or military 
specifications, or other similarly authoritative industry test 
standards. Such testing may be conducted by a laboratory compliant with 
the requirements of the standards body. The procuring official will 
decide whether performance data must be brand-name specific in the case 
of products that are essentially of the same formulation.
    (iv) Biodegradability information. If Biodegradability is claimed 
by a participant with a Certified Biobased Product as a characteristic 
of that product, USDA requires that, if requested by procuring 
agencies, these claims be verified using the appropriate, product-
specific ASTM Biodegradability standard(s). Such testing must be 
conducted by an ASTM/ISO-compliant laboratory. The procuring official 
will decide whether Biodegradability data must be brand-name specific 
in the case of products that are essentially of the same formulation. 
ASTM Biodegradability standards include:
    (A) D5338 (Standard Test Method for Determining Aerobic 
Biodegradation of Plastic Materials Under Controlled Composting 
Conditions);
    (B) D5864 (Standard Test Method for Determining the Aerobic Aquatic 
Biodegradation of Lubricants or Their Components);
    (C) D5988 (Standard Test Method for Determining Aerobic 
Biodegradation of Plastic Materials in Soil);
    (D) D6006 (Standard Guide for Assessing Biodegradability of 
Hydraulic Fluids);
    (E) D6400 (Standard Specification for Compostable Plastics) and the 
standards cited therein;
    (F) D6139 (Standard Test Method for Determining the Aerobic Aquatic 
Biodegradation of Lubricants of Their Components Using the Gledhill 
Shake Flask);
    (G) D6868 (Standard Specification for Biodegradable Plastics Used 
as Coatings on Paper and Other Compostable Substrates); and
    (H) D7081 (Standard Specification for Non-Floating Biodegradable 
Plastics in the Marine Environment).

[[Page 4797]]

    (2) Advertising, labeling, and marketing claims. Participating 
Organizations are reminded that their advertising, labeling, and other 
marketing claims, including claims regarding health and environmental 
benefits of the product, must conform to the 16 CFR part 260 (Federal 
Trade Commission Guides for the Use of Environmental Marketing Claims). 
For further requirements on marketing claims associated with the 
BioPreferred Program, refer to the ``USDA BioPreferred Program Brand 
and Marketing Guidelines'' found on the BioPreferred Program website 
(https://www.biopreferred.gov).
    (b) Records. Participating Organizations will maintain records 
documenting compliance with this part for each product that has 
received a notice of certification, as specified in paragraphs (b)(1) 
through (3) of this section.
    (1) The results of all tests, and any associated calculations, 
performed to determine the Biobased Content of the product.
    (2) The notice of certification from USDA, the dates of changes in 
formulation that affect the Biobased Content of Certified Biobased 
Products, and the dates when the Biobased Content of Certified Biobased 
Products were tested.
    (3) Documentation of analyses performed by participants to support 
claims of environmental or human health benefits, life cycle cost, 
sustainability benefits, and product performance made by the 
participant.
    (c) Record retention. For each Certified Biobased Product, records 
kept under paragraphs (a) and (b) of this section must be maintained 
for at least three years beyond the end of the certification period 
(i.e., three years beyond the date the product's term of certification 
expires). Records may be kept in either electronic format or hard copy 
format. All records kept in electronic format must be readily 
accessible and/or provided by request.


Sec.  4270.15  Oversight and monitoring.

    (a) General. USDA will conduct oversight and monitoring of 
Participating Organizations, Designated Representatives, and Other 
Entities involved with the BioPreferred Program to ensure compliance 
with this part. This oversight may include, but not be limited to, 
conducting facility visits to Participating Organizations that have 
Certified Biobased Products and their Designated Representatives. 
Participating Organizations are required to cooperate fully with all 
USDA audit efforts for the enforcement of the BioPreferred Program 
requirements.
    (b) Biobased Content Testing. USDA will conduct Biobased Content 
Testing of Certified Biobased Products as described in Sec.  
4270.12(b)(1) to ensure compliance with this part.
    (c) Inspection of records. Participating Organizations must allow 
Federal representatives access to the records required under Sec.  
4270.14 for inspection and copying during normal business hours.
    (d) Audits. USDA will conduct an annual desk audit on an ongoing 
basis to verify that the product and company information supplied by 
Participating Organizations remain valid. Through the BioPreferred 
Program website (https://www.biopreferred.gov), Participating 
Organizations will be asked to confirm that they still manufacture the 
product, that the formulation remains the same, and that the 
information described under Sec.  4270.9(a)(1) remains valid. 
Participants may also be asked for additional supplemental information.
    (1) If a Participating Organization indicates that their product or 
company information needs to be updated during an annual desk audit, 
these updates will be incorporated into the BioPreferred Program 
website (https://www.biopreferred.gov). If it is indicated that a 
product is no longer manufactured, the product information will be 
removed from the BioPreferred Program website (https://www.biopreferred.gov).
    (2) If a Participating Organization fails to complete an annual 
desk audit, the participant will be considered to be in noncompliance 
with this part, and the Participating Organization and associated 
product information will be removed from the BioPreferred Program 
website (https://www.biopreferred.gov). USDA reserves the right to 
revoke product certification for failure to participate in an audit.


Sec.  Sec.  4270.16--4270.98  [Reserved]


Sec.  4270.99  OMB control number.

    The information collection requirements in this part are approved 
by the Office of Management and Budget (OMB) and assigned OMB control 
number 0570-NEW.

Xochitl Torres Small,
Deputy Secretary, United States Department of Agriculture.
[FR Doc. 2024-00981 Filed 1-23-24; 8:45 am]
BILLING CODE 3410-XY-P


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