Biobased Markets Program, 97459-97477 [2024-28431]

Agencies

• DEPARTMENT OF AGRICULTURE
• Rural Business-Cooperative Service

[Federal Register Volume 89, Number 236 (Monday, December 9, 2024)]
[Rules and Regulations]
[Pages 97459-97477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28431]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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


Federal Register / Vol. 89, No. 236 / Monday, December 9, 2024 / 
Rules and Regulations

[[Page 97459]]



DEPARTMENT OF AGRICULTURE

7 CFR Part 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: Final rule.

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

SUMMARY: The Rural Business-Cooperative Service (RBCS or the Agency), 
an agency of the Rural Development (RD) mission area within the U.S. 
Department of Agriculture (USDA), is issuing a final rule to adopt 
changes from the Agriculture Improvement Act of 2018 (2018 Farm Bill) 
that apply to the Biobased Markets (BioPreferred) Program. These 
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.

DATES: This final rule is effective January 8, 2025.

ADDRESSES: Information regarding the BioPreferred[supreg] Program is 
available at biopreferred.gov.

FOR FURTHER INFORMATION CONTACT: Vernell Thompson, Procurement Analyst, 
USDA RD, 1400 Independence Avenue SW, Washington, DC 20250-1522, STOP 
3250; email: [email protected]; phone (202) 720-4145.

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

I. Authority
II. Background
III. Discussion of Public Comments
    A. Definitions
    B. Criteria for Eligibility
    C. Procurement Programs
    D. Category Designation
    E. Determining Biobased Content
    F. Initial Approval Process/Oversight and Monitoring
    G. Miscellaneous/General
IV. Summary of Changes
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. Administrative Pay-As-You-Go-Act of 2023
    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
    N. Severability

I. Authority

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

II. Background

    On January 24, 2024, the Agency published a proposed rule, 89 FR 
4770, with request for comments for the purpose of implementing 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 making 
amendments to streamline and improve the BioPreferred Program's rules.
    The legacy rules established the two core initiatives of the 
BioPreferred Program. Part 3201 of title 7 of the Code of Federal 
Regulations 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 of title 7 of the Code of 
Federal Regulations 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 merging the legacy rules into one streamlined regulation that 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. Discussion of Public Comments

    Sixteen respondents submitted comments on the proposed rule. The 
Agency reviewed the public comments in the development of the final 
rule. A discussion of the comments is provided as follows.

A. Definitions

    a. Three respondents expressed support for the inclusion of 
Renewable Chemicals in the definition of the term Biobased Product.
    Agency Response: The Agency thanks the respondents for their 
support of the change to the definition of Biobased Product.
    b. One respondent recommended establishing the BioPreferred 
Program's definition of biobased as the uniform definition throughout 
the federal government.
    Agency Response: The Agency agrees that it is important to have a 
uniform definition of biobased throughout the federal government. The 
requirements

[[Page 97460]]

established by the BioPreferred Program apply to all federal agencies, 
and therefore, the definitions established by the BioPreferred Program 
apply to all federal agencies as well. The Agency will continue efforts 
to educate federal agencies and their contractors about Biobased 
Products and the requirements associated with the BioPreferred Program.

B. Criteria for Eligibility

    a. Three respondents expressed support for establishing a single 
participation process under which all products must undergo Biobased 
Content Testing using ASTM D6866.
    Agency Response: The Agency thanks the respondents for their 
support in establishing a single participation process. For reader 
clarification, ASTM D6866 is the American Society for Testing and 
Materials (ASTM) International standard test methods for determining 
the Biobased Content of solid, liquid, and gaseous samples using 
radiocarbon analysis.
    b. Two respondents expressed concern regarding the added 
requirements for all products to undergo Biobased Content Testing. The 
respondents noted that, through collaboration with USDA Forest Service 
Forest Products Lab (FPL), the Agency has established guidelines for 
testing wood products, under which specific types of wood and 
engineered wood products are exempt from testing. The respondents 
recommended that the Agency continue to uphold these guidelines under 
this final rule. The respondents asserted that changing the testing 
requirements for products that fall under the exemption guidelines 
established with FPL would add unnecessary cost to manufacturers (and 
therefore purchasers) and hinder the efficiency of the BioPreferred 
Program.
    Agency Response: The Agency agrees that the guidelines for testing 
wood products that have been established in collaboration with FPL 
should be maintained. The Agency is not intending to change these 
guidelines with the implementation of this final rule. Products that 
are eligible to be exempt from testing under the guidelines established 
in collaboration with FPL will be exempt from testing as described by 
Sec.  4270.7(d)(1) in this final rule.
    c. Two respondents expressed support for maintaining the raw 
material sourcing innovative criterion that allows participants to 
demonstrate that their Biobased Product is innovative if the raw 
material is sourced from responsible sources according to standards 
such as ASTM Standard D7612--Standard Practice for Categorizing Wood 
and Wood-Based Products According to Their Fiber Sources.
    Agency Response: The Agency thanks the respondents for their 
support.
    d. One respondent expressed support for the addition of the raw 
material sourcing innovative criterion that allows participants to 
demonstrate that their Biobased Product is innovative if the raw 
material is grown, harvested, manufactured, processed, sourced, or 
applied in other sustainable and ethically sourced ways as determined 
by the Agency.
    Agency Response: The Agency thanks the respondent for their 
support.
    e. One respondent recommended that Biobased Products should never 
be grown, sold, or used as an energy source and strongly recommended 
against establishing any rules, requirements, or funding opportunities 
related to biofuels.
    Agency Response: The Agency notes that biofuels, including motor 
vehicle fuels, heating oil, and electricity, are specifically excluded 
from the BioPreferred Program as mandated by section 9002 of FSRIA, and 
as such, this is outside the scope of the request for comment on the 
proposed rule.

C. Procurement Programs

    a. One respondent would like to see increased enforcement of the 
requirements for federal agencies and their contractors to purchase 
Qualified Biobased Products. The respondent noted that the U.S. 
Government is the single largest purchaser of consumer goods in the 
world, yet this is not reflected in the reported levels of Biobased 
Products purchases.
    Agency Response: The Agency appreciates this comment and agrees 
that increased education and enforcement of the requirements to 
purchase Qualified Biobased Products is needed. The Agency is actively 
trying to increase awareness of these requirements through outreach 
efforts such as hosting trainings for federal agencies as requested, 
reminding federal agencies and their contractors about reporting 
requirements near the end of each fiscal year, and reviewing 
solicitations for compliance. These efforts have led to an increase of 
1,000% in reporting of Biobased Product purchases in recent years. 
While this increase is encouraging, the Agency acknowledges that more 
is needed and hopes to see this trend continue with the implementation 
of Executive Order (E.O.) 14081, which requires federal agencies to 
report their Biobased Product purchasing to the Office of Management 
and Budget.
    b. One respondent expressed concerns with section 6 of E.O. 14081, 
Executive Order on Advancing Biotechnology and Biomanufacturing 
Innovation for a Sustainable, Safe, and Secure American Bioeconomy. The 
respondent asserted that E.O. 14081 has a very narrow window of 
improving the procurement by federal agencies for Renewable Chemicals 
and Biobased Products by 2024, and by the time staff are trained on the 
E.O., it may be rescinded by the next administration. The respondent 
requested that the concepts described in section 6 of E.O. 14081 be 
incorporated in the reauthorization of the next Farm Bill. The 
respondent asserted that the guidelines on procuring Biobased Products 
provided in section 6 of E.O. 14081 need to be codified in legislation 
as agencies have not been given direction in the implementation of the 
BioPreferred Program since its inception in the 2002 Farm Bill.
    Agency Response: While the contents of E.O. 14081 and legislative 
changes to the Farm Bill are outside the scope of the request for 
comment on the proposed rule, the Agency agrees that efforts are needed 
to ensure federal agencies and their contractors are aware of and 
understand the requirements for purchasing Qualified Biobased Products.

D. Category Designation

    a. Two respondents expressed support for the revised category 
designation process included in the proposed rule. The respondents 
noted that the revised process will encourage transparency and 
timeliness in the procurement of Biobased Products by federal agencies. 
One of the respondents further noted that the rapid advancement of 
sophisticated fermentation techniques is leading to the development of 
Biobased Products and Renewable Chemicals at an increasing rate and a 
timely response to these advancements will be necessary for the 
BioPreferred Program to keep pace with industry advancements. Thus, the 
respondent supported the changes to the category designation process.
    Agency Response: The Agency thanks the respondents for their 
support for the revised category designation process.
    b. Two respondents recommended maintaining the category designation 
process established in the legacy rules. The respondents noted that the 
process established in the legacy rules is transparent and provides 
clear guardrails regarding procedural steps for designating product 
categories. Specifically, the respondents were concerned that without 
going through

[[Page 97461]]

the regulatory process, the revised process may not allow for the 
collection and evaluation of Stakeholder feedback on category additions 
and updates. Further, the respondents were concerned that the revised 
process would lead to a loss of clear requirements to provide 
Stakeholders with adequate notice and opportunity to comment, and in 
turn, the requirement for the Agency to consider and respond to all 
comments would be lost. The respondents strongly encouraged the Agency 
to establish similar, robust procedures for notice, comment, and 
Stakeholder feedback should the Agency move forward with the revised 
process.
    Agency Response: The Agency strongly agrees with maintaining the 
transparency and robustness of the category designation process, and 
the Agency intends to ensure that the revised designation process 
provides Stakeholders with opportunities to review and provide input 
equal to those provided by the process established by the legacy rules. 
Under the revised category designation process, the Agency intends to 
notify Stakeholders of potential updates and additions to designated 
product categories. While these updates will no longer be made through 
the formal rulemaking process, the Agency acknowledges that many 
Stakeholders have become accustomed to learning about designated 
category changes through Federal Register notices. As such, the Agency 
intends to notify Stakeholders of changes to designated product 
categories through Federal Register notices that will direct them to 
view and submit comments on the changes through the BioPreferred 
Program's website. Similarly, the Agency intends to maintain the 
process for considering and responding to public comments on designated 
product categories; this process will take place on the BioPreferred 
Program's website rather than as a step in the formal rulemaking 
process. The Agency believes that the revised process will create a 
balance between proposing and implementing changes in a timely manner 
and maintaining the transparency of the process established by the 
legacy rules.

E. Determining Biobased Content

    a. One respondent urged the Agency to require Biobased Content 
Testing for products to qualify for the federal procurement preference. 
The respondent asserted that without required testing, there is a 
heightened risk for greenwashing and fraud. The respondent also 
recommended establishing Biobased Content audit procedures for products 
that are qualified to receive the federal procurement preference.
    Agency Response: The Agency appreciates these comments. The Agency 
notes that under section 9002 of FSRIA, any Biobased Product that meets 
the requirement of one or more designated product category is qualified 
to receive a federal procurement preference. This means that Biobased 
Products may be qualified to receive a federal procurement preference 
even if they do not participate in the BioPreferred Program. Qualified 
Biobased Products that participate in the BioPreferred Program will be 
required to undergo the same Biobased Content Testing and auditing 
procedures as certified products according to this final rule. While 
the Agency is unable to establish requirements for products that do not 
participate in the BioPreferred Program, the Agency believes it is 
important for federal buyers to be aware of Biobased Content 
requirements and ask for validation of Biobased Content claims when 
making purchasing decisions. To that end, the legacy rules included a 
stipulation that required manufacturers and vendors to provide federal 
agencies information to verify Biobased Content claims for Qualified 
Biobased Products upon request. The Agency realized this stipulation 
was unintentionally left out of the proposed rule language and is 
revising the final rule to include it.
    b. One respondent strongly supported the continued use of ASTM 
D6866 to measure Biobased Content. The respondent also recommended 
specifying the use of ASTM D6866 Method B when conducting Biobased 
Content Testing, rather than also allowing the use of ASTM D6866 Method 
C as the instruments used for Method C tend to be less accurate than 
those used in Method B. The respondent stated that the results produced 
by ASTM D6866 Method B are easily understood by regulators, policy 
makers, corporate officers, and the public, and the overwhelming 
advantage of this test method is that it is an independent and 
standardized laboratory measurement that produces highly accurate and 
precise values. This means that the test results can be easily 
reproduced to verify the value if the results are challenged. The 
respondent specifically supported the use of ASTM D6866 Method B over 
the test method EN 16785-2 and mass balance measurements. The 
respondent asserted that calculation-based approaches, such as mass 
balance calculations, are difficult to audit and could lead to 
greenwashing of Biobased Content claims.
    Agency Response: The Agency thanks the respondent for their support 
of the continued use of ASTM D6866 to validate Biobased Content claims. 
The Agency agrees with the use of ASTM D6866 Method B when products 
undergo Biobased Content Testing for certification and notes that this 
is current practice. The Agency feels that specifying the use of Method 
B in the final rule is unnecessary but will refer to Method B in 
informational materials on the BioPreferred Program's website and in 
information sent to participants prior to testing.
    c. Two respondents strongly encouraged the Agency to include an 
additional certification pathway that utilizes mass balance methods to 
verify content claims, a recommendation that was included in the 
Conference Report that accompanied the 2018 Farm Bill. The respondents 
stated that while the ASTM D6866 test method is adequate for 
determining the amount of traceable Biobased Content present in a 
finished product, it is unable to account for renewable feedstocks 
attributed under the mass balance approach. The respondents asserted 
that modernizing the BioPreferred Program to include the mass balance 
approach as one of the approved methods to qualify for the BioPreferred 
Program would advance the program's goals of furthering the bioeconomy 
and providing new markets for farm commodities. The respondents also 
stated that incorporating the mass balance method to approve products 
to qualify for the BioPreferred Program would substantially lower the 
barrier to entry for Participating Organizations and further 
incentivize U.S. production of mass balance Biobased Products and their 
related markets.
    Agency Response: The Agency appreciates the comments. The Agency 
notes that it is required to follow the specifications included within 
the 2018 Farm Bill itself; some of the recommendations in the 
accompanying Conference Report were not included in the 2018 Farm Bill, 
and establishing a certification pathway using mass balance approaches 
is one such recommendation. The Agency acknowledges that industry use 
of the mass balance approach can help advance the BioPreferred 
Program's goals of furthering the bioeconomy and providing new markets 
for farm commodities. However, the Agency believes that further 
consideration is needed before including an additional certification 
pathway that utilizes mass balance methods to verify content claims. 
The Agency also acknowledges

[[Page 97462]]

that the mass balance process may make it easier for manufacturers to 
transition to more sustainable feedstocks because segregated production 
pathways are not needed. The Agency notes that products produced by 
mass balance methods are not Biobased Products as defined by this final 
rule. To maintain the integrity of the Label and to prevent diluting 
public understanding of what the Label means, it is important that the 
Agency maintain a consistent definition of what it means for a product 
to be biobased. The Agency feels that allowing alternative methods that 
certify claims other than Biobased Content as defined by this final 
rule would cause confusion about what the Label is reporting. The 
Agency believes that including the mass balance approach as one of the 
approved methods to participate in the BioPreferred Program would 
require establishing a separate Label and certification process with 
separate requirements to those established for Biobased Products, which 
would require significant resources. The Agency will continue to stay 
informed of any advancements in the use of the mass balance approach 
and will coordinate with program Stakeholders and the program's 
Technical Advisory Committee to evaluate these advancements as 
resources allow.
    d. Two respondents recommended allowing alternative test methods in 
addition to the use of ASTM D6866 to validate Biobased Content claims. 
The respondents stated that the ASTM D6866 test method essentially 
discounts the relative weight of the non-carbon biobased components in 
products as ASTM D6866 only measures the weight of carbon content in a 
product. The respondents noted that certain types of products, such as 
wood products, contain a significant amount of molecular oxygen, and 
failing to account for molecular oxygen substantially underrepresents 
the proportion of ``biobased'' materials. The respondents recommended 
amending the final rule to allow for the use of alternative, more 
accurate methodologies for measuring Biobased Content as future 
industry consensus standards are developed and adopted.
    Agency Response: The Agency appreciates the comments. The Agency 
believes it is important to maintain a consistent definition of 
Biobased Content across all types of materials to maximize 
understanding of what the Label means. At this time, the Agency defines 
Biobased Content as 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. The 
Agency feels that allowing alternative test methods that measure 
attributes other than Biobased Content as defined by this final rule 
would cause confusion about what the Label is reporting.
    e. One respondent recommended adding a certification attribute that 
quantifies the carbon intensity of a given product.
    Agency Response: This is outside the scope of the request for 
comment on the proposed rule, which seeks to implement the amendments 
made to section 9002 of FSRIA by the 2018 Farm Bill.
    f. Two respondents recommended allowing testing exemptions for 
products that have been certified to industry consensus standards that 
are substantively equivalent to the third-party requirements set out in 
the proposed rule. The respondents noted that doing so would avoid 
duplicative costs and compliance burdens.
    Agency Response: The Agency appreciates these comments. The Agency 
agrees that, where possible, efforts should be made to minimize burdens 
associated with participating in the BioPreferred Program. To that end, 
the Agency allows testing exemptions in specific situations where the 
Biobased Content of an exempt product has been demonstrated using the 
alternative methods specified in Sec.  4270.7(d)(1) of this final rule. 
Maintaining the integrity of the BioPreferred Program and the Label is 
of upmost importance, and the Agency believes that accepting testing 
that has been done outside of the Agency's oversight could erode that 
integrity.
    g. One respondent expressed support for allowing testing exemptions 
for Biobased Product Ingredients with the same formulation as other, 
already-approved products. The respondent noted that allowing these 
exemptions reduces the cost and time burdens associated with 
participating in the BioPreferred Program, which is important as many 
potential participants already have tight margins as they work to scale 
their operations.
    Agency Response: The Agency thanks the respondent for their 
support.
    h. Two respondents recommended specifying that Biobased Content 
Testing must be done by a laboratory that is ISO/IEC 17025 accredited 
by an International Laboratory Accreditation Cooperation (ILAC) 
recognized accreditation body.
    Agency Response: For reader clarity, International Organization for 
Standardization (ISO) is an independent, non-governmental, 
international standard development organization composed of 
representatives from the national standards organizations of member 
countries. International Electrotechnical Commission (IEC) is an 
organization that prepares and publishes international standards for 
all electrical, electronic, and related technologies.
    The Agency agrees that ISO accreditation is important to maintain 
the integrity of the certification process. While the final rule does 
not specify that testing facilities must be ISO/IEC 17025 accredited, 
the Agency does require laboratories that are approved to perform 
testing for the BioPreferred Program to maintain ISO/IEC 17025 
accreditation. The Agency believes it is not necessary to specify in 
the final rule that laboratories must be ISO/IEC 17025 accredited since 
the Agency verifies accreditation before laboratories are approved to 
perform testing for the BioPreferred Program.
    i. One respondent recommended specifying that laboratories that are 
approved to perform testing for the BioPreferred Program be carbon-14 
tracer-free facilities.
    Agency Response: The Agency agrees that it is important for 
laboratories that are approved to perform testing for the BioPreferred 
Program be carbon-14 tracer-free facilities to minimize the potential 
for contamination of certification samples. Laboratories that are 
approved to perform testing for the BioPreferred Program sign an 
agreement with the Agency; the Agency believes the tracer-free 
stipulation would be better suited to be included in the laboratory 
agreement rather than in this final rule.

F. Initial Approval Process/Oversight and Monitoring

    a. One respondent recommended reducing the time period between 
recertification requirements (referred to by the respondent as audits) 
from every 5 years to every 2 to 3 years. The respondent emphasized 
that these requirements must include retesting using ASTM D6866 rather 
than allowing a self-declaration attesting that the formulation has not 
been altered. The respondent asserted that, given the frequency of 
supply chain and formulation changes required in the Biobased Products 
industry, a 5-year sampling period does not guarantee that products 
displaying the USDA Certified Biobased Product Label will contain the 
Biobased Content their companies receive certification for. The 
respondent also recommended establishing a blind auditing procedure to 
randomly select products for testing in between recertification 
periods. The respondent

[[Page 97463]]

stated that coupling blind audits with more frequent recertification 
requirements is the best way to ensure accurate, fair validation.
    Agency Response: The Agency appreciates these comments. The Agency 
notes that under the revised requirements, participants will be 
required to participate in an annual informational audit, during which 
they will self-verify that their company and product information 
remains up to date, as well as have their products recertified by 
undergoing ASTM D6866 testing every 5 years. Under the legacy rules, 
informational audits and retesting audits both took place every 6 
years. The Agency believes that establishing an annual information 
audit during which participants must confirm or update their company 
and product information will be frequent enough to remind participants 
to notify the Agency of supply chain changes that may affect their 
product formulations. While the Agency agrees that more frequent 
retesting requirements, including the addition of a blind auditing 
procedure, would better ensure that the Biobased Content of certified 
products remain valid, the Agency must consider the burden associated 
with maintaining certification on program participants. The Agency 
believes that combining annual informational audits with 5-year 
recertification requirements balances the need to obtain updated 
information from participants while minimizing the burdens associated 
with retesting. However, the final rule does allow the Agency to 
request that a product be retested outside of the 5-year certification 
period if concerns about the validity of the product's Biobased Content 
are raised.
    b. One respondent recommended reducing the window of time allowed 
to conform to the updated requirements for participants with products 
that are qualified but not certified or products that have been 
certified for more than 5 years. The respondent asserted that a 3-year 
window to conform to the final rule is too much time and recommended 
reducing this to 6 months to a year maximum and any product that does 
not conform within that timeframe should be removed from the 
BioPreferred Program.
    Agency Response: The Agency appreciates these comments. The Agency 
agrees that allowing a 3-year window to conform to the final rule is a 
generous amount of time. However, given the large number of products 
that will be required to undergo Biobased Content Testing to conform to 
the updated requirements, the Agency believes that a grace period of 
this length is needed to minimize the burden that may be placed on 
program resources in undertaking these activities. The Agency notes 
that all participants will be required to participate in annual 
informational audits during the grace period and may be removed from 
the BioPreferred Program's website if they fail to participate in such 
audits.
    c. One respondent noted that the success for this type of 
certification is dependent on its universality and flexibility.
    Agency Response: The Agency thanks the respondent for their 
comment.

G. Miscellaneous/General

    a. Five respondents expressed support for the Agency's efforts to 
streamline the BioPreferred Program's rules.
    Agency Response: The Agency thanks the respondents for their 
support.
    b. One respondent expressed support for streamlining the 
BioPreferred Program's rules but expressed concern that this final rule 
does not do enough to streamline the program for participants. The 
respondent stated that streamlining does not improve important issues 
within the BioPreferred Program, such as improving the procurement 
initiative. To further assist in the implementation and enforcement of 
Biobased Product purchasing and reporting requirements, the respondent 
requested that procurement officers be identified for the BioPreferred 
Program.
    Agency Response: The Agency appreciates the comments. The Agency 
believes the efforts to streamline the BioPreferred Program will have 
positive impacts for participants and potential participants by 
establishing a single, efficient process through which products are 
determined to be qualified for a federal procurement preference and 
eligible to use the Label. The changes to the category designation 
process will also streamline the program for participants by making it 
quicker and easier to designate new categories, allowing more products 
to qualify for the federal procurement preference. The Agency notes 
that the BioPreferred Program does not itself procure products, and 
therefore, procurement officers are not needed within the BioPreferred 
Program. The Agency will continue its efforts to educate federal 
agencies (including procurement officers) and their contractors on the 
requirements for purchasing Qualified Biobased Products and reporting 
such purchases.
    c. One respondent expressed general support for the BioPreferred 
Program. The respondent noted that the BioPreferred Program presents a 
significant opportunity to promote sustainability, innovation, and 
economic growth. The respondent also noted that the BioPreferred 
Program parallels the success of the National Organic Program, and by 
providing a clear framework for the certification and labeling of 
Biobased Products, the final rule will enhance consumer awareness of 
and confidence in Biobased Products in a similar manner to what the 
National Organic Program has done for organic products. The respondent 
further noted that the BioPreferred Program has the potential to create 
new avenues for job growth and economic development, particularly in 
rural communities. Additionally, the respondent noted that by 
incentivizing investment in Biobased Product research, production, and 
manufacturing, the BioPreferred Program can help bolster rural 
economies.
    Agency Response: The Agency thanks the respondent for their 
support.
    d. Three respondents recommended establishing North American 
Industry Classification System (NAICS) codes for Biobased Products with 
this final rule.
    Agency Response: While establishing NAICS codes are outside the 
scope of the request for comment on the proposed rule, the Agency 
strongly agrees that it is necessary to establish NAICS codes for 
Biobased Products and will share these comments with the Department of 
Commerce. The Agency will continue its efforts to encourage the 
Department of Commerce to establish NAICS codes for Biobased Products 
and will continue to offer support as needed to advance these efforts.
    e. One respondent recommended making updates to the BioPreferred 
Program website to make it more consumer friendly.
    Agency Response: The Agency appreciates this comment. While this is 
outside the scope for the proposed rule request for comment, the Agency 
agrees that the BioPreferred Program's website is in need of updates to 
make information easier to find and understand. The Agency is currently 
working to refresh the BioPreferred Program's website to make these 
changes.
    f. One respondent recommended that the BioPreferred Program be 
incorporated into the Coordinated Framework established by section 8 of 
E.O. 14081.
    Agency Response: This is outside the scope of the proposed rule 
request for comment.
    g. One respondent requested the proposed rule plain language 
summary.

[[Page 97464]]

    Agency Response: The Agency provided the appropriate information 
for locating the plain language summary at regulations.gov.
    h. One respondent inquired whether there would be an interagency 
review of the proposed rule.
    Agency Response: The proposed rule did not require official 
interagency review because the rulemaking was designated as non-
significant.

IV. Summary of Changes

    The final rule will not include revisions based on the public 
comments received in response to the proposed rule. The final rule will 
include two technical amendments summarized below.
    a. In the final rule, Sec.  4270.7(a) is being revised to include 
the last sentence from 7 CFR 3201.7(a). While reviewing the public 
comments, the Agency determined that this stipulation was 
unintentionally excluded from the proposed rule language. This 
requirement is being added to the final rule language to clarify that 
manufacturers and vendors of Qualified Biobased Products may be asked 
to prove their Biobased Content claims regardless of whether they 
participate in the BioPreferred Program.
    b. In addition, Sec.  4270.7(c)(2)(i) is being revised to correct 
the notation used in the Complex Assemblies equation. The proposed rule 
used ``of the nth component'' and the final rule is being revised to 
correct this to ``of the ith component.''

V. Executive Orders/Acts

A. Executive Order 12866--Classification

    This final rule 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

    The information collection and recordkeeping requirements contained 
in this final rule will not be effective until approved by OMB, subject 
to the submission of a paperwork package submitted to OMB pursuant to 
the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

D. National Environmental Policy Act

    In accordance with the National Environmental Policy Act of 1969, 
Public Law 91-190, this final 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 final 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 final 
rule 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. Administrative Pay-As-You-Go-Act of 2023

    The Administrative Pay-As-You-Go-Act of 2023 (Act) (See Fiscal 
Responsibility Act of 2023, Pub. L. 118-5, 137 Stat 31, div. B, title 
III) requires the U.S. Government Accountability Office (GAO) to assess 
agency compliance with the Act, which establishes requirements for 
administrative actions that affect direct spending, in GAO's major rule 
reports. The Act does not apply to this final rule because it does not 
increase direct spending.

G. Executive Order 12988--Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988. In 
accordance with this final rule: (1) unless otherwise specifically 
provided, all State and local laws that conflict with this final rule 
will be preempted; (2) no retroactive effect will be given to this 
final rule except as specifically prescribed in the final 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 final 
rule.

H. Unfunded Mandates Reform Act (UMRA)

    Title II of the UMRA, Public Law 104-4, establishes requirements 
for Federal Agencies to assess the effects of their regulatory actions 
on State, local, and Tribal Governments and on the private sector. 
Under section 202 of the UMRA, Federal Agencies generally must prepare 
a written statement, including cost-benefit analysis, for proposed and 
Final Rules with ``Federal mandates'' that may result in expenditures 
to State, local, or Tribal Governments, in the aggregate, or to the 
private sector, of $100 million or more in any year. When such a 
statement is needed for a final 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 final rule.
    This final rule 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 final rule is 
not subject to the requirements of sections 202 and 205 of the UMRA.

I. Executive Order 13132--Federalism

    The policies contained in this final rule 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 
final rule impose substantial direct compliance costs on State and 
local governments. Therefore, consultation with the States is not 
required.

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

    This final rule has been reviewed in accordance with the 
requirements of Executive Order 13175, Consultation and Coordination 
with Indian Tribal Governments. Executive Order 13175 requires Federal 
agencies to consult and coordinate with tribes on a government-to-
government basis on policies that have Tribal implications, including 
regulations, legislative comments or proposed legislation, and other 
policy statements or actions that have substantial direct effects on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes or on the distribution of power and 
responsibilities between the

[[Page 97465]]

Federal Government and Indian tribes. Consultation is also required for 
any regulation that preempts Tribal law or that imposes substantial 
direct compliance costs on Indian Tribal governments and that is not 
required by statute.
    The Agency has determined that this final rule does not, to our 
knowledge, have Tribal implications that require formal Tribal 
consultation under Executive Order 13175. If a Tribe requests 
consultation, the Agency will work with the Office of Tribal Relations 
to ensure meaningful consultation is provided where changes, additions 
and modifications identified herein are not expressly mandated by 
Congress.

K. 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 and to promote the use of the internet and other 
information technologies to provide increased opportunities for citizen 
access to Government information and services, and for other purposes.

L. Civil Rights Impact Analysis

    RD has reviewed this final rule in accordance with USDA Regulation 
4300-4, Civil Rights Impact Analysis, to identify any major civil 
rights impacts the final 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 final rule and 
all available data, issuance of this final 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 final rule.

M. 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, 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 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: [email protected].

N. Severability

    It is USDA's intention that the provisions of this final rule shall 
operate independently of each other. In the event that this final rule 
or any portion of this final rule is ultimately declared invalid or 
stayed as to a particular provision, it is USDA's intent that the final 
rule nonetheless be severable and remain valid with respect to those 
provisions not affected by a declaration of invalidity or stayed. USDA 
concludes it would separately adopt all of the provisions contained in 
this final rule.

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

    Biobased products, Business and industry, and Government 
procurement.

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

CHAPTER XXXII--OFFICE OF PROCUREMENT AND PROPERTY MANAGEMENT

PART 3201 [REMOVED AND RESERVED]

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

PART 3202 [REMOVED AND RESERVED]

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

CHAPTER XLII--RURAL BUSINESS-COOPERATIVE SERVICE

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

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

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

    Authority: 7 U.S.C. 8102.


Sec.  4270.1  Purpose and scope.

    (a) This part sets forth the procedures and guidelines for the 
implementation of the USDA Biobased Markets Program, called the 
BioPreferred[supreg] Program, established by section 9002 of the Farm 
Security and Rural Investment Act of 2002 (FSRIA) as amended by the 
Food, Conservation, and Energy Act of 2008, and further amended by the 
Agricultural Act of 2014, and the Agriculture Improvement Act of 2018 
(Pub. L. 107-171, 116 Stat. 476, 7 U.S.C. 8102).
    (b) The guidelines in this part establish:
    (1) A process for designating categories of products that are, or 
can be, produced with biobased Intermediate Ingredients or feedstocks 
and whose procurement by procuring agencies and other relevant 
Stakeholders will carry out the objectives of section 9002 of FSRIA;

[[Page 97466]]

    (2) The criteria for eligibility and the process through which 
Biobased Products can participate in the BioPreferred Program, be 
subject to preferred Federal procurement, and be eligible to display 
the USDA Certified Biobased Product Label;
    (3) Specifications for the correct and incorrect uses of the USDA 
Certified Biobased Product Label and Certification Icon, which apply to 
Participating Organizations and Other Entities; and
    (4) Actions that constitute noncompliance with this part.


Sec.  4270.2  Definitions

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

Figure 1 to Definition of Certified Icon--Certification Icon
[GRAPHIC] [TIFF OMITTED] TR09DE24.687

    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 (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

[[Page 97467]]

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 biopreferred.gov.
    Renewable chemical. A monomer, polymer, plastic, Formulated 
Product, or chemical substance produced from renewable biomass.
    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 (note that actual size will vary depending 
on application), 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 
(biopreferred.gov). The USDA Certified Biobased Product Label is owned 
and its use is managed by USDA (standard trademark law definition 
applies).

Figure 2 to Definition of USDA Certified Biobased Product Label--USDA 
Certified Biobased Product Label
[GRAPHIC] [TIFF OMITTED] TR09DE24.688

Figure 3 to Definition of USDA Certified Biobased Product Label--USDA 
Certified Biobased Package Label
[GRAPHIC] [TIFF OMITTED] TR09DE24.689

Figure 4 to Definition of USDA Certified Biobased Product Label--USDA 
Certified Biobased Product & Package Label
[GRAPHIC] [TIFF OMITTED] TR09DE24.690

Sec.  4270.3  Applicability.

    (a) Applicability to Federal procurements--(1) Applicability to 
procurement actions. The guidelines in this part apply to all 
procurement actions by Procuring Agencies involving product categories 
designated by USDA in this part, where the Procuring Agency makes 
purchases of $10,000 or more of one of these products during a fiscal 
year, or where the quantity of such products or of functionally 
equivalent products purchased during the preceding fiscal year was 
$10,000 or more. The $10,000 threshold applies to Federal Agencies as a 
whole rather than to agency subgroups such as regional offices or 
subagencies of a larger Federal department or agency.
    (2) Exception for procurements subject to Environmental Protection 
Agency (EPA) regulations under the Solid Waste Disposal Act. For any 
procurement by any Procuring Agency that is subject to regulations of 
the Administrator of the EPA under section 6002 of the Solid Waste 
Disposal Act, as amended by the Resource Conservation and Recovery Act 
of 1976 (40 CFR part

[[Page 97468]]

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: Products or systems designed or procured 
for combat or combat-related missions.
    (ii) Spacecraft systems and launch support equipment.
    (b) Applicability to Participating Organizations and Other 
Entities--(1) Participating Organizations. The requirements in this 
part apply to all prospective Participating Organizations who wish to 
participate in the BioPreferred Program. Those wishing to participate 
in the BioPreferred Program are required to obtain and maintain product 
certification. USDA will allow only one owner or Designated 
Representative of a branded product to participate. Participating 
Organizations may not obtain product certification for a product using 
a brand name owned by a separate organization unless they are acting on 
behalf of the brand owner, with their approval, as a Designated 
Representative.
    (2) Other Entities. The requirements in this part apply to Other 
Entities who wish to use the USDA Certified Biobased Product Label or 
Certification Icon in promoting the sales or the public awareness of 
Certified Biobased Products.


Sec.  4270.4  Criteria for eligibility.

    A product must meet each of the criteria specified in paragraphs 
(a) through (c) of this section to be eligible to participate in the 
BioPreferred Program.
    (a) Biobased Product. The product for which certification is sought 
must be a Biobased Product as defined in Sec.  4270.2. Products must 
undergo Biobased Content Testing as described in Sec.  4270.7 of this 
part 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 January 8, 2025, the product will remain 
eligible under the legacy rules, which can be found on the BioPreferred 
Program website (biopreferred.gov), until the product is reformulated, 
discontinued, or until December 9, 2027, whichever comes first. These 
products must follow the procedures described in Sec.  4270.9 before 
December 9, 2027 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.
    (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 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 biopreferred.gov, to become certified 
in each category. If the product's Biobased Content does not meet the 
specified minimum Biobased Content for the category that most closely 
matches the product's primary intended use, the product is not eligible 
to participate.
    (2) Products that do not meet the definition of at least one 
Defined Product Category. If the Biobased Product does not meet the 
definition of a Defined Product Category that has been designated by 
USDA at the time the application for certification is submitted, the 
Applicable Minimum Biobased Content is 30 percent. USDA will evaluate 
such products as described in Sec.  4270.6 to determine the viability 
of designating a new product category. If a new category is 
subsequently designated for preferred Federal procurement, the 
Applicable Minimum Biobased Content will become, as of the effective 
date indicated in the Register of Designated Categories, the minimum 
Biobased Content specified for the newly Defined Product Category.
    (c) Innovative Criteria. In determining eligibility for 
certification under the BioPreferred Program, USDA will consider as 
eligible only those products that use innovative approaches in the 
growing, harvesting, sourcing, procuring, processing, manufacturing, or 
application of the Biobased Product. USDA will consider products that 
meet one or more of the criteria in paragraphs (c)(1) through (4) of 
this section to be eligible for certification. USDA will also consider 
other documentation of innovative approaches in the growing, 
harvesting, sourcing, procuring, processing, manufacturing, or 
application of Biobased Products on a case-by-case basis. USDA may deny 
or revoke certification for any products whose manufacturers are unable 
to provide USDA with the documentation necessary to verify claims that 
innovative approaches are used.
    (1) Product applications. (i) The Biobased Product or material is 
used or applied in applications that differ from historical 
applications; or
    (ii) The Biobased Product or material is grown, harvested, 
manufactured, processed, sourced, or applied in other innovative ways; 
or
    (iii) The Biobased Content of the product or material makes its 
composition different from products or material used for the same 
historical uses or applications.
    (2) Manufacturing and processing. (i) The Biobased Product or 
material is manufactured or processed using renewable, biomass energy 
or using technology that is demonstrated to increase energy efficiency 
or reduce

[[Page 97469]]

reliance on fossil-fuel based energy sources; or
    (ii) The Biobased Product or material is manufactured or processed 
with technologies that reduce waste and ensure high feedstock material 
recovery and use.
    (3) Environmental Product Declaration. The product has a current 
Environmental Product Declaration as defined by International Standard 
ISO 14025, Environmental Labels and Declarations--Type III 
Environmental Declarations--Principles and Procedures.
    (4) Raw material sourcing. (i) The raw material used in the product 
is sourced from a Legal Source, a Responsible Source, or a Certified 
Source as designated by ASTM D7612 (Standard Practice for Categorizing 
Wood and Wood-Based Products According to Their Fiber Sources); or
    (ii) The raw material used in the product is 100% resourced or 
recycled (such as material obtained from building deconstruction or 
agricultural wastes); or
    (iii) The raw material used in the product is acquired as a result 
of activities related to a natural disaster, debris clearing, right-of-
way maintenance, tree health improvement, or public safety; or
    (iv) The raw material used in the product is grown, harvested, 
manufactured, processed, sourced, or applied in other sustainable and 
ethically sourced ways as determined by USDA. Examples include but are 
not limited to rainforest and habitat conservation, wildlife 
protection, ethical workplace practices, and adherence to environmental 
management systems, such as ISO 14001.


Sec.  4270.5  Procurement programs.

    (a) Integration into the Federal procurement framework. The Office 
of Federal Procurement Policy, in cooperation with USDA, has the 
responsibility to coordinate this policy's implementation in the 
Federal procurement regulations. These guidelines are not intended to 
address full implementation of these requirements into the Federal 
procurement framework. This will be accomplished through revisions to 
the Federal Acquisition Regulation.
    (b) Federal Agency preferred procurement programs. (1) Each Federal 
Agency will maintain and implement a procurement program that will 
assure that Qualified Biobased Products are purchased to the maximum 
extent practicable and that is consistent with applicable provisions of 
Federal procurement laws. Each procurement program will contain:
    (i) A preference program for purchasing Qualified Biobased 
Products;
    (ii) A training program to educate the Federal Agency and its 
contractors on the requirements for purchasing Qualified Biobased 
Products;
    (iii) Provisions for the annual review and monitoring of the 
effectiveness of the procurement program;
    (iv) Provisions for reporting quantities and types of Biobased 
Products purchased by the Federal Agency and its contractors through 
the BioPreferred Program Portal in the System for Award Management 
(https://sam.gov) as required by 48 CFR 52.223-2; and
    (v) Provisions for reviewing and eliminating specifications that 
prohibit the purchasing of Qualified Biobased Products.
    (2) In developing their preference program, Federal agencies will 
adopt one of the following options, or a substantially equivalent 
alternative, as part of the procurement program:
    (i) A policy of awarding contracts on a case-by-case basis to the 
vendor offering a Qualified Biobased Product composed of the highest 
percentage of Biobased Content practicable except when such products:
    (A) Are not available within a reasonable timeframe;
    (B) Fail to meet performance standards for their intended use, or 
the reasonable performance standards of the Federal Agency; or
    (C) Are not available at a reasonable price.
    (ii) A policy of setting minimum Biobased Content specifications in 
such a way as to assure that the required Biobased Content of Qualified 
Biobased Products is consistent with section 9002 of FSRIA and the 
requirements of the guidelines in this part.
    (iii) A policy of documenting and reporting cases where it is not 
possible to award contracts and set specifications in such a way that 
is consistent with section 9002 of FSRIA and the requirements of this 
part.
    (3) In implementing the preference program, Federal agencies will 
treat as eligible for the preference Biobased Products from designated 
countries, as that term is defined in 48 CFR 25.003 (Federal 
Acquisition Regulation), provided that those products otherwise meet 
all requirements for participation in the preference program.
    (4) Each Federal Agency will continue to establish an annual 
targeted biobased-only procurement requirement under which the 
Procuring Agency will issue a certain number of biobased-only contracts 
when the Procuring Agency is purchasing products, or purchasing 
services that include the use of products, that are included in a 
Biobased Product category designated by the Secretary.
    (c) Procurement specifications. Federal agencies that have the 
responsibility for drafting or reviewing specifications for products 
procured by Federal agencies will ensure that their specifications 
require the use of Qualified Biobased Products, consistent with the 
guidelines in this part. These specifications must be put in place no 
later than six months after a designated category of products is 
finalized and added to the Register of Designated Categories. USDA will 
identify the allowable time frame for specifications to be put in place 
in the Register of Designated Categories found on the BioPreferred 
Program website at biopreferred.gov. The Biobased Content of Qualified 
Biobased Products within a Designated Product Category may vary 
considerably from product to product based on the mix of Ingredients 
used in its manufacture. In procuring Qualified Biobased Products, the 
percentage of Biobased Content should be maximized, consistent with 
achieving the desired performance for the product.


Sec.  4270.6  Category designation.

    (a) Procedure. Designated Product Categories are found in the 
Register of Designated Categories on the BioPreferred Program website 
(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 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.

[[Page 97470]]

    (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 (biopreferred.gov). 
Using the data gathered during the certification process, USDA will 
establish a provisional category name, definition, and minimum Biobased 
Content for each new product category based on the product(s) that fall 
within the new category.
    (B) The provisional minimum will be in place for a period of six 
months following the addition of the new Defined Product Category to 
the Register of Designated Categories. During that time, any product 
that falls within the category based on the category definition and has 
a Biobased Content that is either at least 30 percent or within 30 
percentage points of the provisional minimum, whichever is higher, will 
be considered for inclusion.
    (C) After a period of six months following the addition of the new 
product category to the Register of Designated Categories, USDA will 
re-evaluate the provisional category name, description, and minimum 
Biobased Content based on the data gathered during the year. At that 
time, USDA will make final the product category name, description, and 
minimum Biobased Content, and the category will no longer be considered 
provisional.
    (D) Procuring agencies, in accordance with this part, are 
encouraged to give a procurement preference for Qualified Biobased 
Products that falls within provisionally designated categories and are 
required to give a procurement preference for Qualified Biobased 
Products that falls 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.
    (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 product categories.
    (2) In designating product categories for the BioPreferred Program, 
USDA will consider as eligible only those products that use innovative 
approaches in growing, harvesting, sourcing, procuring, processing, 
manufacturing, or application of the Biobased Product. USDA will 
consider products that meet one or more of the criteria in Sec.  
4270.4(b)(1) and (2) to be eligible for the BioPreferred Program. USDA 
will also consider other documentation of innovative approaches in 
growing, harvesting, sourcing, procuring, processing, manufacturing, or 
application of Biobased Products on a case-by-case basis.


Sec.  4270.7  Determining Biobased Content.

    (a) Certification requirements. For any Biobased Product seeking to 
participate in the BioPreferred Program, prospective Participating 
Organizations must submit an application as specified in Sec.  4270.9 
and confirm that the product meets the Applicable Minimum Biobased 
Content requirements and the definition for the Defined Product 
Category within which the Biobased Product falls. Paragraph (c) of this 
section addresses how to determine Biobased Content. Upon request, 
manufacturers and vendors must provide USDA and Federal agencies 
information to verify Biobased Content claims for Qualified Biobased 
Products.
    (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

[[Page 97471]]

(mass) of the total organic carbon in the product.
    (2) Complex Assemblies--(i) Equation. The Biobased Content of a 
Complex Assembly product, where the product has n components whose 
Biobased Content and organic carbon content can be experimentally 
determined, may be calculated using the following equation:
[GRAPHIC] [TIFF OMITTED] TR09DE24.691

Where:

Mi = mass of the ith component
BCCi = biobased carbon content of the ith component (%)
OCCi = organic carbon content of the ith component (%)

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


Sec.  4270.8  [Reserved]


Sec.  4270.9  Initial approval process.

    (a) Application. Prospective Participating Organizations seeking 
USDA approval to use the USDA Certified Biobased Product Label and to 
become qualified for preferred Federal procurement for an eligible 
Biobased Product must submit an application for each Biobased Product 
or product family. USDA has developed a standardized application form 
that must be used. The standardized application form and instructions 
are available on the BioPreferred Program website (biopreferred.gov). 
The contents of an acceptable application are as specified in 
paragraphs (a)(1) and (2) of this section.
    (1) General content. The applicant must provide the information as 
specified in paragraphs (a)(1)(i) though (viii) of this section.
    (i) Contact information, including the name, mailing address, email 
address, and telephone number of the applicant.
    (ii) The product's brand name(s) or other identifying information.
    (iii) Intended uses of the product.
    (iv) The biobased source(s) of the raw materials used in the 
product.
    (v) Information to document that one or more of the Innovative 
Criteria specified in Sec.  4270.4(c) has been met.
    (vi) The corresponding Designated Product Category classification 
for preferred Federal procurement.
    (vii) The estimated Biobased Content of the product.
    (viii) A web link directly to the applicant's website (if 
available).
    (2) Commitments. The applicant must verify in the application that 
the product for which use of the USDA Certified Biobased Product Label 
is sought is a Biobased Product as defined in Sec.  4270.2. The 
applicant must also agree to statements in the application that commit 
the applicant to submitting to USDA the information specified in 
paragraphs (a)(1)(i) through (viii) of this section, some of which USDA 
will post to the BioPreferred Program website (biopreferred.gov), and 
to providing USDA with up-to-date information on this website.
    (b) Evaluation of applications--(1) Initial evaluation. USDA will 
evaluate each application to determine if it contains the information 
specified in paragraph (a) of this section and to determine compliance 
with the criteria specified in Sec.  4270.4. If USDA determines that 
the application is incomplete, USDA will contact the applicant via 
email with an explanation of the application's deficiencies. Once the 
deficiencies have been addressed, the applicant may respond to USDA 
with an explanation of how the application's deficiencies were 
addressed for re-evaluation by USDA, and USDA will update the 
application as needed. If the applicant does not provide a response 
within 90 Days, USDA will make the application inactive.
    (2) Prequalification. (i) USDA will provide a written response to 
each applicant as quickly as practicable, but no later than 90 Days 
after the receipt of a complete application, depending on the 
responsiveness of the applicant. The written response will inform the 
applicant of whether the application has been conditionally approved, 
or prequalified, to move forward to Biobased Content Testing, or has 
been disapproved. After notification that the application has been 
conditionally approved, if any of the information specified in 
paragraphs (a)(1)(i) through (viii) of this section has changed, the 
applicant must provide updates to USDA (for posting by USDA on the 
BioPreferred Program website).
    (ii) For those applications that are conditionally approved to move 
forward, Biobased Content Testing must be completed as described in 
Sec.  4270.7. Test results obtained prior to the application being 
conditionally accepted or obtained in a manner that does not comply 
with this part cannot be accepted.
    (iii) After Biobased Content Testing has been completed, USDA will 
evaluate the results and determine if the product meets the criteria 
described in Sec.  4270.4(b). For those applications that meet the 
criteria described in Sec.  4270.4(b), USDA will issue a notice of 
certification, as specified in paragraph (c) of this section. A notice 
of certification must be issued before the use of the USDA Certified 
Biobased Product Label can begin.
    (iv) For those applications that are disapproved, USDA will inform 
the applicant in writing of each criterion not met.

[[Page 97472]]

    (c) Notice of certification. Once USDA confirms that the test 
results document an acceptable Biobased Content, USDA will issue a 
notice of certification to the applicant that includes the date of 
certification, name of the product(s) covered by the certification, and 
certified Biobased Content of the product(s). Upon receipt of a notice 
of certification, the applicant may begin using the USDA Certified 
Biobased Product Label on the Certified Biobased Product and may 
advertise that the product is a Certified Biobased Product. Paragraph 
(c)(1) of this section presents the procedures for revising the 
information provided under paragraphs (a)(1)(i) through (viii) of this 
section after a notice of certification has been issued.
    (1) If at any time, during the application process or after a 
product has been certified, any of the information specified in 
paragraphs (a)(1)(i) through (viii) of this section changes, the 
applicant must notify USDA of the change within 30 Days. Such 
notification must be provided in writing via email to USDA. Failure to 
notify USDA of any change made to a Certified Biobased Product may 
result in the violation actions described in Sec.  4270.12.
    (2) After receiving the notice of certification, the Participating 
Organization may request to display a Biobased Content percentage that 
is lower than the content measured by the ASTM D6866 test results but 
is greater than or equal to the applicable category minimums. Such 
requests must be sent in writing via email to USDA and must be approved 
by USDA.
    (3) If, after reviewing the test results, USDA determines that the 
product does not meet the Applicable Minimum Biobased Content, USDA 
will issue a notice of denial of certification and will inform the 
applicant in writing via email of each criterion not met.
    (d) Term of certification--(1) General. The effective date of 
certification is included in the notice of certification from USDA. 
Except as specified in paragraphs (d)(1)(iii) and (iv) and (d)(2) 
through (4) of this section, certifications will remain in effect for 
five years. The applicant will be notified 90 Days before the 
certification expires, at which time, the product must be re-tested in 
accordance with the procedure as specified in Sec.  4270.7.
    (i) If the certification is not renewed within the 90 Days, the 
product certification will expire, the product will no longer be a 
Certified Biobased Product, and the product information will be removed 
from the BioPreferred Program website (biopreferred.gov).
    (ii) If a Participating Organization whose product certification 
has expired wishes to renew the certification, the participant must 
follow the procedures required for original certification.
    (iii) All certifications are subject to periodic USDA auditing 
activities, as described in Sec.  4270.15. If a Participating 
Organization fails to participate in such audit activities or if such 
audit activities reveal Biobased Content violations, as specified in 
Sec.  4270.12, the certification will be subject to suspension and 
revocation according to the procedures specified in Sec.  
4270.12(c)(3).
    (iv) If USDA discovers that a certification has been issued for an 
ineligible product as a result of errors on the part of USDA during the 
approval process, USDA will notify the Participating Organization in 
writing that the certification is revoked effective 30 Days from the 
date of the notice.
    (2) Reformulations. If at any time during the term of certification 
a Certified Biobased Product is reformulated, the participant must 
notify USDA of the change. USDA will consider the changes and inform 
the participant if re-testing is required as specified in paragraphs 
(d)(2)(i) through (iii) of this section.
    (i) If the product formulation or raw materials of a Certified 
Biobased Product are changed such that the Biobased Content of the 
product is reduced to a level below that reported in the Certified 
Application, the existing certification will no longer be valid for the 
product under these revised conditions and the Participating 
Organization and its Designated Representatives must discontinue 
affixing the USDA Certified Biobased Product Label to the product and 
must not initiate any further advertising of the product using the USDA 
Certified Biobased Product Label. USDA will consider a product under 
such revised conditions to be a reformulated product, and the 
Participating Organization must submit a new application for 
certification using the procedures specified in paragraph (a) of this 
section.
    (ii) If the product formulation of a Certified Biobased Product is 
changed such that the Biobased Content of the product is increased from 
the level reported in the Certified Application, and the raw materials 
are not significantly changed, the existing certification will continue 
to be valid for the product.
    (iii) If the applicable required minimum Biobased Content for a 
product to participate in the BioPreferred Program is revised by USDA, 
Participating Organizations must follow the requirements specified in 
Sec.  4270.6(a)(3).
    (3) Test exemptions. For those products that are exempt from 
Biobased Content Testing as described in Sec.  4270.7, the test exempt 
certification will expire at the same time as the Certified Application 
of the Parent Product.
    (4) Special considerations. (i) For those Participating 
Organizations who have Qualified Biobased Products that are not 
certified as of January 8, 2025. 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 January 8, 2025 and whose products meet the 
requirements as described in Sec.  4270.4 will receive certification 
for their products covered by the test data. The term of certification 
as described in paragraph (d)(1) of this section will then apply.
    (ii) Participants who have Qualified Biobased Products that are not 
certified as of January 8, 2025 and do not provide recent ASTM D6866 
test results within three years of the publication of this rule will be 
required to have their products tested and certified as described in 
Sec.  4270.7. If certification is not completed within three years of 
the publication of this rule, these Biobased Products will no longer be 
listed as Qualified Biobased Products on the BioPreferred Program's 
website (biopreferred.gov) and will be removed from the BioPreferred 
Program's website (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 January 8, 2025. 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 (biopreferred.gov).


Sec.  4270.10  [Reserved]


Sec.  4270.11  Requirements associated with promotional certification 
materials.

    (a) How participation in the BioPreferred Program can be promoted. 
Guidance on promoting participation in the BioPreferred Program is 
provided in paragraphs (a)(1) and (2) of this section. USDA will 
evaluate additional requests for uses of promotional materials or 
references to the Program and will offer

[[Page 97473]]

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

[[Page 97474]]

    (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 (biopreferred.gov).
    (2) Black or white outline versions of the USDA Certified Biobased 
Product Label are acceptable.
    (g) Placement of the USDA Certified Biobased Product Label. (1) The 
USDA Certified Biobased Product Label can appear directly on a product, 
its associated packaging, in user manuals, and in other materials 
including, but not limited to, advertisements, catalogs, procurement 
databases, and promotional and educational materials.
    (2) The USDA Certified Biobased Product Label will not be placed in 
a manner that is ambiguous about which product is a Certified Biobased 
Product or that could indicate certification of a non-certified 
product.
    (3) When used to distinguish a Certified Biobased Product in 
material including, but not limited to, advertisements, catalogs, 
procurement databases, websites, and promotional and educational 
materials, the USDA Certified Biobased Product Label must appear near a 
picture of the product or text describing it.
    (i) If all products on a page are Certified Biobased Products with 
the same Biobased Content percentage, the USDA Certified Biobased 
Product Label may be placed anywhere on that page.
    (ii) If a page contains a mix of Certified Biobased Products and 
non-certified Biobased Products, the USDA Certified Biobased Product 
Label will be placed in close proximity to the Certified Biobased 
Products. An individual USDA Certified Biobased Product Label near each 
Certified Biobased Product may be necessary to avoid confusion.
    (h) Minimum size and clear space requirements for the USDA 
Certified Biobased Product Label. (1) The USDA Certified Biobased 
Product Label may be sized to fit the individual application as long as 
the correct proportions are maintained, and all elements of the USDA 
Certified Biobased Product Label remain legible.
    (2) The USDA Certified Biobased Product Label must be surrounded by 
a border of clear space that must be of sufficient width to offset it 
from surrounding images and text to avoid confusion. If a one-color 
outline version of the USDA Certified Biobased Product 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 (biopreferred.gov).


Sec.  4270.12  Violations of program requirements.

    This section identifies the types of actions that USDA considers 
violations under this part and the penalties (e.g., the suspension or 
revocation of certification) associated with such violations.
    (a) General. Violations under this section occur on a per product 
basis and the penalties are to be applied on a per product basis. 
Entities cited for a violation under this section may appeal using the 
provisions in Sec.  4270.13. If certification for a product is revoked, 
the Participating Organization whose certification has been revoked may 
seek re-certification for the product specified under the provisions in 
Sec.  4270.9.
    (b) Types of violations. Actions that will be considered violations 
of this part include, but are not limited to, the examples as described 
in paragraphs (b)(1) through (4) of this section:
    (1) Biobased Content violations. USDA reserves the right to request 
occasional testing of Certified Biobased Products without notice to 
compare the Biobased Content of the tested product with the product's 
Applicable Minimum Biobased Content and the Biobased content reported 
in its Certified Application. Such testing will be conducted using ASTM 
Method D6866 in accordance with the procedures discussed in Sec.  
4270.7.
    (i) If the testing shows that the Biobased Content of a Certified 
Biobased Product is less than its Applicable Minimum Biobased Content, 
then a violation of this part will have occurred.
    (ii) If the testing shows that the Biobased Content is less than 
that reported in the product's Certified Application but is still equal 
to or greater than its Applicable Minimum Biobased Content(s), USDA 
will provide written notification to the Participating Organization. 
The participant must submit, within 90 Days from receipt of USDA 
written notification, a new application for the lower Biobased Content. 
Failure to submit a new application within 90 Days will be considered a 
violation of this part.
    (A) The participant can submit a new application to use the 
Biobased Content reported to it by USDA in the written notification.
    (B) Alternatively, the participant may submit a new application and 
elect to retest the product in question. If the participant elects to 
retest the product, it must test a sample of the current product, and 
the procedures in Sec.  4270.9 must be followed. USDA reserves the 
right to select the sample that will be submitted for retesting.
    (2) USDA Certified Biobased Product Label violations. (i) Any usage 
or display of the USDA Certified Biobased Product Label that does not 
conform to the requirements specified in Sec.  4270.10.
    (ii) Affixing the USDA Certified Biobased Product Label to any 
product prior to issuance of a notice of certification from USDA.
    (iii) Affixing the USDA Certified Biobased Product Label to a 
Certified Biobased Product during periods when certification has been 
suspended or revoked.
    (iv) Using an image or icon other than the official USDA Certified 
Biobased Product Label in association with certification claims.
    (3) Application violations. Knowingly providing false or misleading 
information in any application for certification of a Biobased Product.
    (4) BioPreferred Program website violations. Failure to provide 
USDA with updated information when the information for a Certified 
Biobased Product becomes outdated or when new information for a 
Certified Biobased Product becomes available.

[[Page 97475]]

    (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 
through 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 (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 
(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 
(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 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 
(biopreferred.gov) as a product qualified for preferred Federal 
procurement.
    (iv) If a participant whose product certification has been revoked 
wishes to participate in the BioPreferred Program again, the 
participant must follow the procedures required for the original 
certification specified in Sec.  4270.9.
    (4) Other remedies. In addition to the suspension or revocation of 
the product certification, depending on the nature of the violation, 
USDA may pursue suspension or debarment of the entities involved in 
accordance with 2 CFR part 417 and 48 CFR subpart 9.4. USDA further 
reserves the right to pursue any other remedies available by law, 
including any civil or criminal remedies, against any entity that 
violates the provisions of this part.


Sec.  4270.13  Appeal process.

    Participating Organizations whose product certification has been 
revoked may appeal to USDA.
    (a) Filing an appeal. (1) Appeals to the Agency must be filed 
within 30 Days of receipt by the appellant of a notice of suspension 
and revocation. Appeals must be filed in writing via email to the 
BioPreferred Program's email address as noted on the BioPreferred 
Program website (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 
(biopreferred.gov).
    (2) If USDA denies a participant's appeal of a notice of suspension 
and revocation, then the notice of suspension and revocation stands.
    (c) Appeals of decisions made on appeals. Appeals of any of the 
BioPreferred Program's decisions may be made to the Rural Business-
Cooperative Service Administrator. Appeals must be made, in writing, 
within 30 Days of receipt of USDA's decision and addressed to: Rural 
Business-Cooperative Service Administrator, 1400 Independence Avenue 
SW, Washington, DC 20250-1522 STOP 3250. If the Rural Business-
Cooperative Service Administrator sustains an appeal, the provisions of 
paragraph (b) of this section will apply.


Sec.  4270.14  Reporting and recordkeeping.

    (a) Providing product information to Federal agencies--(1) 
Informational website. An informational USDA website implementing 
section 9002 of FSRIA can be found at: biopreferred.gov. USDA will 
maintain a web-based information site for participating originations 
with Certified Biobased Products and Federal agencies to exchange 
information, as described in paragraphs (a)(1)(i) through (iv) of this 
section as applicable.
    (i) Product information. The website will, as determined to be 
necessary by the Secretary based on the availability of data, provide 
the information specified in Sec.  4270.9. USDA encourages Federal 
agencies to utilize this website to obtain current information on 
designated categories, contact information for Participating 
Organizations, and access to information on product characteristics 
relevant to procurement decisions. In addition to any information 
provided on the website, participants are expected to provide relevant 
information to Federal agencies, subject to the limitations specified 
in paragraph (a)(1)(ii) of this section, with respect to product 
characteristics, including verification of such characteristics if 
requested.

[[Page 97476]]

    (ii) Providing information on price and environmental and health 
benefits. Federal agencies may not require Participating Organizations 
with Certified Biobased Products to provide procuring agencies with 
more data than would be required of other manufacturers or vendors 
offering products for sale to a Procuring Agency (aside from data 
confirming the Biobased Contents of the products) as a condition of the 
purchase of Biobased Products from the participant. USDA encourages 
industry Stakeholders to provide information on environmental and 
public health benefits based on industry accepted analytical approaches 
including, but not limited to, material carbon footprint analysis, the 
International Standards Organization (ISO) 14040, the ASTM 
International life-cycle cost method (E917) and multi-attribute 
decision analysis (E1765), and the British Standard Institution PAS 
2050. USDA will make such Stakeholder-supplied information available on 
the BioPreferred Program website (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).
    (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 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 
(biopreferred.gov).
    (b) Records. Participating Organizations will maintain records 
documenting compliance with this part for each product that has 
received a notice of certification, as specified in paragraphs (b)(1) 
through (3) of this section.
    (1) The results of all tests, and any associated calculations, 
performed to determine the Biobased Content of the product.
    (2) The notice of certification from USDA, the dates of changes in 
formulation that affect the Biobased Content of Certified Biobased 
Products, and the dates when the Biobased Content of Certified Biobased 
Products were tested.
    (3) Documentation of analyses performed by participants to support 
claims of environmental or human health benefits, life cycle cost, 
sustainability benefits, and product performance made by the 
participant.
    (c) Record retention. For each Certified Biobased Product, records 
kept under paragraphs (a) and (b) of this section must be maintained 
for at least three years beyond the end of the certification period 
(i.e., three years beyond the date the product's term of certification 
expires). Records may be kept in either electronic format or hard copy 
format. All records kept in electronic format must be readily 
accessible and/or provided by request.


Sec.  4270.15  Oversight and monitoring.

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

[[Page 97477]]

certification for failure to participate in an audit.


Sec.  Sec.  4270.16-4270.98  [Reserved]


Sec.  4270.99  OMB control number.

    The information collection requirements in this part are approved 
by the Office of Management and Budget (OMB) and assigned OMB control 
number 0570-0083.

Xochitl Torres Small,
Deputy Secretary, United States Department of Agriculture.
[FR Doc. 2024-28431 Filed 12-6-24; 8:45 am]
BILLING CODE 3410-XY-P