4770 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

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. 

SUMMARY: The Rural BusinessCooperative 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® Program is available at 

https://www.biopreferred.gov. 

Comments may be submitted on this 

rulemaking using the following 

methods: 

• 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: 

vernell.thompson@usda.gov; 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®

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 

section number 

and title 

Current (legacy) 

regulations section 

numbers and titles 

§ 4270.1 Purpose 

and Scope.

§ 3201.1 Purpose 

and scope. 

§ 3202.1 Purpose 

and scope. 

§ 4270.2 Definitions § 3201.2 Definitions. 

§ 3202.2 Definitions. 

§ 4270.3 Applicability § 3201.3 Applicability to Federal 

procurements. 

§ 3202.3 Applicability. 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 4771 

TABLE 1—BIOPREFERRED PROGRAM

CFR SECTIONS—Continued 

New biopreferred 

program regulation 

section number 

and title 

Current (legacy) 

regulations section 

numbers and titles 

§ 4270.4 Criteria for 

Eligibility.

§ 3202.4 Criteria for 

product eligibility to 

use the certification 

mark. § 3201.5 

Category designation. 

§ 4270.5 Procurement programs.§ 3201.4 Procurement programs. 

§ 4270.6 Category 

designation.

§ 3201.5 Category 

designation. 

§ 3202.5 Initial 

approval process. 

§ 4270.7 Determining Biobased 

Content.

§ 3201.7 Determining biobased 

content. 

§ 4270.8 [Reserved].

§ 4270.9 Initial Approval Process.§ 3202.5 Initial approval process. 

§ 3202.8 Violations. 

§ 4270.10 [Reserved].

§ 4270.11 Requirements Associated 

with Promotional 

Certification Materials.

§ 3202.7 Requirements associated 

with the certification mark. 

§ 4270.12 Violations 

of Program Requirements.

§ 3202.8 Violations. 

§ 4270.13 Appeal 

Process.

§ 3202.6 Appeal 

processes. 

§ 4270.14 Reporting 

and Recordkeeping.

§ 3201.6 Providing 

product information 

to Federal agencies. § 3201.8 Determining price, environmental and 

health benefits, 

and performance. 

§ 3202.9 Recordkeeping requirements. 

§ 4270.15 Oversight 

and Monitoring.

§ 3202.10 Oversight 

and monitoring. 

§ 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 §§ 3201.1 and 

3202.1 into one. 

B. Section 4270.2 Definitions 

The Agency is combining the 

definitions sections of §§ 3201.2 and 

3202.2 into one and amending as 

follows: 

a. Merged Definitions Only. The 

following definitions were merged from 

§§ 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
4772 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

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, §§ 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 § 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 § 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 

§ 3201.7, Participating Organizations 

were similarly required to undergo 

Biobased Content Testing to 

demonstrate that the product meets the 

minimum requirements; however, under 

§ 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 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 

§ 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 § 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 § 3202.4(b)(1). 

i. Product is within a single product 

category. The rule uses the language 

from § 3202.4(b)(1)(i) with a 

modification to indicate where the 

minimum Biobased Content for the 

defined project category can be found. 

In § 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 § 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 § 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 § 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 §§ 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 §§ 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
4774 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

approach to manufacturing products in 

a similar manner to using technologies 

that ensure high feedstock material 

recovery and use as described in 

§§ 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 

§§ 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 

§ 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 

§ 4270.4(c)(4)(iii). 

Additionally, in this proposed rule 

the Agency is adding an innovative 

criterion at § 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® through the Cradle to 

Cradle Products Innovation Institute 

could meet this innovative criterion. 

Products that are Cradle to Cradle 

Certified® 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 § 3201.4(a) with no 

revisions. 

b. Federal agency preferred 

procurement programs. The rule uses 

language from § 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 § 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 § 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 § 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 § 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 

§ 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 § 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. 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 4775 

Also, the Agency is modifying the 

language previously found in 

§ 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 § 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 § 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 § 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 § 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 

§ 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, 

§ 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
4776 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

designation procedure, there will no 

longer be a proposed rule with a public 

comment period to introduce new 

Designated Product Categories as 

described in § 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 § 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 § 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 § 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 § 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 § 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 

§ 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 § 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 selfcertify, and therefore is adding language 

to indicate that an application for 

certification must be submitted. The 

Agency is also modifying the language 

from § 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 § 3201.7(b) was used with 

no significant modifications. 

c. Determining Biobased Content. The 

language from § 3201.7(c) was used with 

no significant modifications. 

1. General. The language from 

§ 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 

§ 3201.7(c)(3), Complex Assembly 

products only had one option for 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 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 

§ 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 subsample (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 

§ 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 § 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 § 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 § 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
4778 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

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 

§ 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 § 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 § 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 § 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 § 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 § 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 § 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 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 § 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 § 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 § 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 § 3202.8(c)(2)(iii). 

iii. This proposed rule uses language 

from § 3202.5(d)(2)(iv) with minimal 

modifications. 

iv. This proposed rule uses language 

from § 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 § 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 § 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 § 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 § 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 § 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
4780 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

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 

§§ 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 

§ 3202.7(a)(1) with no significant 

modifications. 

2. Other Entities. This proposed rule 

uses the language from § 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 § 3202.7(a)(2)(ii) 

has been split into three sections in this 

rule. In § 4270.11(b)(2)(i) of the 

proposed rule, the Agency is revising 

the language from § 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 § 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 

§ 3202.7(b)(1) with no significant 

modifications. 

2. This section uses the language from 

§ 3202.7(b)(2) with no significant 

modifications. 

3. This section uses the language from 

§ 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 

§ 3202.7(b)(4) with no significant 

modifications. 

5. This section uses the language from 

§ 3202.7(b)(5) with no significant 

modifications. 

6. This section uses the language from 

§ 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 

§ 3202.7(b)(7) with no significant 

modifications. 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 4781 

c. Incorrect usage of the USDA 

Certified Biobased Product Label and 

other promotional certification 

materials. 

1. This section uses the language from 

§ 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 

§ 3202.7(c)(2) with no significant 

modifications. 

5. This section uses the language from 

§ 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 

§ 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 

§ 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 

§ 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 

§ 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 § 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 § 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 § 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 § 3202.7(e) with no significant 

modifications. 

f. Physical aspects of the USDA 

Certified Biobased Product Label. This 

proposed rule uses language from 

§ 3202.7(f) with some modification. As 

in § 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 

§ 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 

§ 3202.7(f)(3) with no significant 

modifications. 

g. Placement of the USDA Certified 

Biobased Product Label. This proposed 

rule uses language from § 3202.7(g) with 

minimal modification. The Agency is 

updating language from § 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 § 3202.7(h) with no 

significant modification. 

i. Where to obtain copies of the 

promotional certification materials. 

This proposed rule uses language from 

§ 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 § 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 § 3202.8(a) with no 

significant changes. 

b. Types of violations. This proposed 

rule uses the language from § 3202.8(b) 

with no significant changes. 

1. Biobased Content violations. This 

proposed rule uses the language from 

§ 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 retested at any time in the event concerns 

regarding the validity of the Certified 

Biobased Product’s Biobased Content 

arise. The language included in 

§ 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 § 4270.12(b)(1)(B), the proposed 

rule uses language from 

§ 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
4782 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

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 § 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 § 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 

§ 3202.8(b)(3) with no significant 

modifications. 

4. BioPreferred Program website 

violations. This proposed rule uses 

language from § 3202.8(b)(4) with no 

significant modifications. 

c. Noncompliance and escalation of 

actions. The violations described in 

§ 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 

§ 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 § 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 

§ 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 § 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 § 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 

§ 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 § 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 § 3202.8(c)(1)(ii) with no 

significant modifications. 

The language from § 3202.8(c)(2)(i) 

and (ii) are being combined in this 

proposed rule into § 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 § 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 4783 

depleted, the participant must 

discontinue use of the Label. 

This proposed rule uses language 

from § 3202.8(c)(2)(iii) with no 

significant modification. 

4. Other remedies. This proposed rule 

uses language from § 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 

§ 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 

§ 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 § 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 

§ 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 § 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 §§ 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 

§ 3201.6(a) with no significant 

modifications. 

i. Product information. This proposed 

rule uses language from § 3201.6(a)(1) 

with no significant modifications. 

ii. Providing information on price and 

environmental and health benefits. This 

proposed rule uses language from 

§ 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 

§ 3201.8(b) with no significant 

modifications. 

iv. Biodegradability information. This 

proposed rule uses language from 

§ 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 § 3201.6(b) with no 

significant modifications. 

b. Records. This proposed rule uses 

language from § 3202.9(a) with no 

significant modifications. 

1. This proposed rule uses language 

from § 3202.9(a)(1) with no significant 

modifications. 

2. This proposed rule uses language 

from § 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 § 3202.9(a)(3) with no significant 

modifications. 

c. Record retention. This proposed 

rule uses language from § 3202.9(b) with 

no significant modifications. 

O. Section 4270.15 Oversight and 

Monitoring 

a. General. The proposed rule uses the 

language from § 3202.10(a) with no 

significant modifications. 


ddrumheller on DSK120RN23PROD with PROPOSALS3
4784 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

b. Biobased Content Testing. The 

proposed rule uses the language from 

§ 3202.10(b) with no significant 

modifications. 

c. Inspection of records. The proposed 

rule uses the language from § 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 § 3202.10(d). The audit 

procedures in § 3202.10(d) involved 

three stages that were scheduled to take 

place every other calendar year (biannually). The first stage 

(§ 3202.10(d)(1)) required Participating 

Organizations to confirm that their 

product and company information 

remains unchanged. The second stage 

(§ 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 (§ 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. 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 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: 

katherine.mathis@usda.gov. 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 costbenefit 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: AIAN@

usda.gov 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, 


ddrumheller on DSK120RN23PROD with PROPOSALS3
4786 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

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: program.intake@usda.gov 

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] 

■ 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] 

■ 2. Under the authority of 5 U.S.C. 301 

and 7 U.S.C. 8102, remove and reserve 

part 3202. 

CHAPTER XLII—RURAL BUSINESSCOOPERATIVE SERVICE 

■ 3. Add part 4270, consisting of 

§§ 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. 

§ 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® 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. 

§ 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). 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 4787 

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. 


ddrumheller on DSK120RN23PROD with PROPOSALS3EP24JA24.000</GPH>
4788 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

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). 

Figure 2: USDA Certified Biobased 

Product Label (Note: Actual Size Will 

Vary Depending on Application) 

Figure 3: USDA Certified Biobased 

Package Label (Note: Actual Size Will 

Vary Depending on Application) 

Figure 4: USDA Certified Biobased 

Product & Package Label (Note: Actual 

Size Will Vary Depending on 

Application) 

§ 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. 

§ 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 § 4270.2. 

Products must undergo Biobased 

Content Testing as described in § 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 § 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. 


ddrumheller on DSK120RN23PROD with PROPOSALS3EP24JA24.001</GPH> EP24JA24.002</GPH> EP24JA24.003</GPH>

USDA 

CERTIFIED 

BIOBASED 

PRODUCT 

PRODUCTS?% 

USDA 

CERTIFIED 

BIOBASED 

PRODUCT 

PACKAGE 32% 

USDA 

CERTIFIED 

BIOBASED 

PRODUCT 

PRODUCTS?% 

PACKAGE 32% 
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 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 § 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. 

§ 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
4790 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

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 biobasedonly 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. 

§ 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 reevaluate 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. 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 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 

§ 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. 

§ 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 § 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: 

Where: 

Mi = mass of the nth component 

BCCi = biobased carbon content of the nth 

component (%) 

OCCi = 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 subsamples 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. 

§ 4270.8 [Reserved] 

§ 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. 


ddrumheller on DSK120RN23PROD with PROPOSALS3EP24JA24.004</GPH>

Biobased Content of Product= rf-1Mi*BBCi*occi 

Lf=1 Mi* OCCi 
4792 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

(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 § 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 § 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 § 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 § 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 

§ 4270.4(b). For those applications that 

meet the criteria described in 

§ 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 

§ 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 § 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 § 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 § 4270.12, the certification 

will be subject to suspension and 

revocation according to the procedures 

specified in § 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 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 

§ 4270.6(a)(3). 

(3) Test exemptions. For those 

products that are exempt from Biobased 

Content Testing as described in 

§ 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 § 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 § 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). 

§ 4270.10 [Reserved] 

§ 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 noncertified 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. 


ddrumheller on DSK120RN23PROD with PROPOSALS3
4794 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

(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 noncertified 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 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] 

§ 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 § 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 § 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 § 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 § 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 § 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3
4796 Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 

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 § 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. 

§ 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. 

§ 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 § 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 multiattribute 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). 


ddrumheller on DSK120RN23PROD with PROPOSALS3
Federal Register / Vol. 89, No. 16 / Wednesday, January 24, 2024 / Proposed Rules 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. 

§ 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 § 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 § 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 

§ 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. 

§ § 4270.16—4270.98 [Reserved] 

§ 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 


ddrumheller on DSK120RN23PROD with PROPOSALS3