[Federal Register Volume 77, Number 84 (Tuesday, May 1, 2012)]
[Proposed Rules]
[Pages 25632-25641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10420]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 77, No. 84 / Tuesday, May 1, 2012 / Proposed
Rules
[[Page 25632]]
DEPARTMENT OF AGRICULTURE
7 CFR Part 3201
RIN 0503-AA40
Guidelines for Designating Biobased Products for Federal
Procurement
AGENCY: Office of Procurement and Property Management, USDA.
ACTION: Proposed rule; amendments.
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SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to
amend 7 CFR part 3201, Guidelines for Designating Biobased Products for
Federal Procurement, to incorporate statutory changes to section 9002
of the Farm Security and Rural Investment Act (FSRIA) that were
effected when the Food, Conservation, and Energy Act of 2008 (FCEA) was
signed into law on June 18, 2008.
DATES: USDA will accept public comments on these proposed rule
amendments until July 2, 2012.
ADDRESSES: You may submit comments by any of the following methods. All
submissions received must include the agency name and Regulatory
Information Number (RIN). The RIN for this rulemaking is 0503-AA40.
Also, please identify submittals as pertaining to the ``Proposed
Amendments to BioPreferred Program Guidelines.''
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include RIN number 0503-AA40
and ``Proposed Amendments to BioPreferred Program Guidelines'' on the
subject line. Please include your name and address in your message.
Mail/commercial/hand delivery: Mail or deliver your
comments to: Ron Buckhalt, USDA, Office of Procurement and Property
Management, Room 361, Reporters Building, 300 7th St. SW., Washington,
DC 20024.
Persons with disabilities who require alternative means
for communication for regulatory information (Braille, large print,
audiotape, etc.) should contact the USDA TARGET Center at (202) 720-
2600 (voice) and (202) 690-0942 (TTY).
FOR FURTHER INFORMATION CONTACT: Ron Buckhalt, USDA, Office of
Procurement and Property Management, Room 361, Reporters Building, 300
7th St. SW., Washington, DC 20024; email: [email protected]; phone
(202) 205-4008. Information regarding the Federal biobased preferred
procurement program (one part of the BioPreferred Program) is available
on the Internet at http://www.biopreferred.gov.
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. Authority
II. Background
III. Executive Summary
IV. Discussion of Today's Proposed Rule
V. Request for Comment
VI. Regulatory Information
A. Executive Orders 12866 and 13563: Regulatory Planning and
Review
B. Regulatory Flexibility Act (RFA)
C. Executive Order 12630: Governmental Actions and Interference
With Constitutionally Protected Property Rights
D. Executive Order 12988: Civil Justice Reform
E. Executive Order 13132: Federalism
F. Unfunded Mandates Reform Act of 1995
G. Executive Order 12372: Intergovernmental Review of Federal
Programs
H. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
I. Paperwork Reduction Act
J. E-Government Act Compliance
I. Authority
The Guidelines for Designating Biobased Products for Federal
Procurement (the Guidelines) are established under the authority of
section 9002 of the Farm Security and Rural Investment Act of 2002
(FSRIA), as amended by the Food, Conservation, and Energy Act of 2008
(FCEA), 7 U.S.C. 8102. (Section 9002 of FSRIA, as amended by FCEA, is
referred to in this document as ``section 9002'').
II. Background
As originally enacted, section 9002 provides for the preferred
procurement of biobased products by Federal agencies. USDA proposed the
Guidelines for implementing this preferred procurement program on
December 19, 2003 (68 FR 70730-70746). The Guidelines were promulgated
on January 11, 2005 (70 FR 1792), and are contained in 7 CFR part 3201,
``Guidelines for Designating Biobased Products for Federal
Procurement.''
The Guidelines identify various procedures Federal agencies are
required to follow in implementing the requirements of section 9002.
They were modeled in part on the ``Comprehensive Procurement Guidelines
for Products Containing Recovered Materials'' (40 CFR part 247), which
the Environmental Protection Agency (EPA) issued pursuant to the
Resource Conservation Recovery Act (``RCRA''), 40 U.S.C. 6962.
On June 18, 2008, the FCEA was signed into law. Section 9001 of the
FCEA includes several provisions that amend the provisions of section
9002 of FSRIA. In an effort to update operational aspects of the
BioPreferred program in response to the amendments in the FCEA, USDA
initiated a process to review current program guidelines, gather input
from government, industry, and public stakeholders on different aspects
of the program, and determine appropriate methods for implementing the
new requirements established by the FCEA. USDA held three public
meetings during the first four months of 2010 to provide an opportunity
for stakeholder input. A complete summary for each of the public
meetings, including transcripts, presentation slides, and attendee
lists can be found on the BioPreferred Web site at: http://www.biopreferred.gov/BioPreferred_Public_Meetings.aspx.
The purpose of these proposed rule amendments is to revise the
Guidelines to incorporate changes to section 9002 of FSRIA that were
included in the FCEA. These proposed guidelines will not affect
products that have already been designated for Federal procurement
preference. Any changes necessary to the existing designation status of
products will be established by future rule-makings.
III. Executive Summary
USDA is proposing to amend 7 CFR part 3201 for two reasons. The
first reason is to incorporate statutory changes to section 9002 of the
Farm Security and Rural Investment Act made by enactment of the Food,
Conservation, and Energy Act (FCEA) of 2008 on June 18, 2008. The
second reason is to make improvements to the existing rule based
[[Page 25633]]
on several years of operating experience. The remainder of this section
presents a brief summary of the proposed amendments to the existing
Guidelines and Section IV of this preamble presents more detailed
discussions.
A. Purpose of the Regulatory Action
1. Need for the Regulatory Action
The FCEA contains legislative requirements related to the Biobased
Markets Program that cannot be implemented without further guidance.
For example, the law requires USDA to first designate those
intermediate ingredients and feedstocks that are or can be used to
produce items that will be subject to program's Federal procurement
preference. The law then requires USDA to automatically designate
products composed of designated intermediate ingredients and
feedstocks, if the content of the designated intermediate ingredients
and feedstocks exceeds 50 percent of the product (unless the Secretary
determines a different composition percentage is appropriate). Today's
proposed rule establishes procedures to carry out this and other
provisions of FCEA.
2. Legal Authority for the Regulatory Action
Enactment of the Food, Conservation, and Energy Act (FCEA) of 2008
(Pub. L. 110-234) on June 18, 2008 provides the legal authority for the
proposed rule.
B. Summary of Major Provisions of the Proposed Rule
1. Designation of Intermediate or Feedstock Categories
The designation of intermediate ingredient or feedstock categories,
as proposed, will follow the same process that USDA uses in the ongoing
designation of product categories. USDA will establish a minimum
biobased content for each intermediate ingredient or feedstock category
based on an evaluation of the available biobased content data. The
minimum biobased content requirement will be set at the highest level
practicable, considering technological limitations.
USDA recognizes that, in general, the Federal government does not
purchase large quantities of intermediate ingredients and feedstocks.
Designating such materials, then, represents a means to include
finished products made from such designated materials in the Federal
biobased products procurement preference program.
The proposed rule presents the procedure for designating those
final products that are made from designated intermediate ingredients
or feedstocks. The FCEA states that USDA shall ``automatically
designate'' final products composed of designated intermediate
ingredients or feedstocks if the content of the designated intermediate
ingredients or feedstocks exceeds 50 percent of the final product
(unless the Secretary determines a different composition percentage is
appropriate). Even though the FCEA uses the term ``automatically'' when
specifying that these final products are eligible for the Federal
procurement preference, they still must be incorporated into the
Guidelines by publication in the Federal Register. USDA is proposing a
procedure whereby the designation of these final products would be done
in conjunction with the designation of the intermediate ingredient or
feedstock categories.
2. Designation of Complex Assembly Categories
The proposed rule would establish procedures for designating
complex assembly products (multi-component assembled products with one
or more component being made with biobased material) within the scope
of the Federal biobased products procurement preference program.
Although section 9001 of FCEA does not specifically mention these
multi-component assembled products, USDA believes that including this
type of finished product in the BioPreferred program will encourage the
increased use of biobased materials and, thus, further advance the
objectives of the program.
Today's proposal specifies a proposed procedure for determining the
biobased content of complex assemblies. USDA is proposing that the
biobased content of complex assemblies be calculated using an equation
that yields a weighted average and is based on the summation of the
biobased content of each individual component that contains, or could
contain, biobased material divided by the total weight of all those
components.
USDA selected the approach presented in the equation because it
provides results that relate to the maximum amount of biobased material
that could potentially be found in each complex assembly, regardless of
the amount or type of materials used in other components.
3. Replacement of ``Designated Item'' With ``Designated Category''
The current guidelines use the term ``designated item'' to refer to
a generic grouping of biobased products identified in subpart B as
eligible for the procurement preference. The use of this term has
created some confusion, however, because the word ``item'' is also used
in the guidelines to refer to individual products rather than a generic
grouping of products. USDA is proposing to replace the term
``designated item'' with the term ``designated product category.'' In
addition, USDA is proposing to add a definition for the term
``qualifying biobased product'' to refer to an individual product that
meets the definition and minimum biobased content criteria for a
designated product category and is, therefore, eligible for the
procurement preference. Although these changes are not required by
section 9001 of FCEA, USDA believes the proposed terms and definitions
will add clarity to the rule.
4. Procurement Preference for New and Emerging Markets
USDA is proposing that paragraph (b) of section 3201.5 be amended
to add a statement that ``USDA will designate for preferred procurement
those product categories and intermediate ingredient or feedstock
categories that are determined to create new and emerging markets for
biobased materials.'' This statement is being added to emphasize the
section 9002 objectives ``to improve demand for biobased products'' and
``to spur development of the industrial base through value-added
agricultural processing and manufacturing in rural communities.''
This new paragraph is intended to replace the current mature market
exclusion, which limits the types of product categories eligible for
the Federal procurement preference. USDA is proposing this change to be
more consistent with the objectives and legislative intent of the
Biobased Markets Program.
C. Costs and Benefits
[[Page 25634]]
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Type Costs Benefits
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Qualitative................. Unable to quantify Unable to quantify
at this time. at this time.
Qualitative................. 1. Costs of 1. Advances the
developing biobased objectives of the
alternative BioPreferred
products. program, as
envisioned by
Congress in
developing the 2002
and 2008 Farm
Bills.
2. Costs to gather 2. Opens new
and submit biobased (Federal) market
product information for biobased
for BioPreferred products that USDA
Web site. designates.
3. Loss of market 3. Opportunity for
share by new and emerging
manufacturers who biobased products
choose not to offer to be publicized
biobased versions via BioPreferred
of products. Web site.
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IV. Discussion of Today's Proposed Rule
USDA is proposing to amend nine sections of 7 CFR part 3201, as
described below.
A. 7 CFR 3201.1--Purpose and Scope
Paragraph (b) of 7 CFR 3201.1 is being amended to state that the
scope of the guidelines includes the designation of intermediate
ingredients and feedstocks that are, or can be, used to produce final
products that will be designated and, thus, subject to the Federal
procurement preference. The amendments also specify that USDA may
designate product categories for which there is only a single product
or manufacturer. These proposed amendments are taken directly from the
amendatory language found in section 9001 of the FCEA.
Finally, this section is being amended to include the designation
of complex assembly products (multi-component assembled products with
one or more component being made with biobased material) within the
scope of the Federal biobased products procurement preference program.
Although section 9001 of FCEA does not specifically mention these
multi-component assembled products, USDA believes that including this
type of finished product in the BioPreferred program will encourage the
increased use of biobased materials and, thus, further advance the
objectives of the program.
B. 7 CFR 3201.2--Definitions
USDA is proposing to amend 7 CFR 3201.2 by revising several of the
definitions currently in that section and by adding definitions for
several other terms. The current guidelines use the term ``designated
item'' to refer to a generic grouping of biobased products identified
in subpart B as eligible for the procurement preference. The use of
this term has created some confusion, however, because the word
``item'' is also used in the guidelines to refer to individual products
rather than a generic grouping of products. USDA is proposing to
replace the term ``designated item'' with the term ``designated product
category.'' In addition, USDA is proposing to add a definition for the
term ``qualifying biobased product'' to refer to an individual product
that meets the definition and minimum biobased content criteria for a
designated product category and is, therefore, eligible for the
procurement preference. Although these changes are not required by
section 9001 of FCEA, USDA believes the proposed terms and definitions
will add clarity to the rule.
Section 9001 of the FCEA authorized USDA to designate biobased
intermediate ingredients or feedstocks that can be used in the
manufacturing of final products. USDA is, therefore, revising the
definition of the term ``biobased product'' to add the phrase
``intermediate ingredient or feedstock'' to the definition. USDA is
also adding definitions for the terms ``intermediate ingredient or
feedstock'' and ``designated intermediate ingredient or feedstock
category'' to refer to a specific individual material and to a generic
grouping of materials, respectively. The definition of the term
``intermediate ingredient or feedstock'' is taken from section 9001 of
FCEA, except that the phrase referring to materials ``that have
undergone a significant amount of value added processing (including
thermal, chemical, biological, and mechanical), excluding harvesting
operations, offered for sale by a manufacturer or vendor'' has been
added. This phrase was added to the statutory definition to further
distinguish intermediate ingredients or feedstocks from raw materials
(such as corn or soybeans) that have been harvested but have not
undergone any other processing. USDA does not intend to designate such
raw materials for Federal preferred procurement under this program.
USDA recognizes that the incorporation of biobased materials into
one or more of the components of an assembled final product is an
important emerging trend. By including these multi-component assembled
products in the BioPreferred program, USDA can encourage the increased
use of biobased materials and, thus, further advance the objectives of
the program. USDA is proposing revisions to the guidelines to
facilitate the designation of these assembled products. USDA is
proposing that these assembled products be referred to as ``complex''
assemblies and that the term ``complex assembly'' be defined as ``a
system of distinct materials and components assembled to create a
finished product with specific functional intent where some or all of
the system inputs contain some amount of biobased material or
feedstock.''
In addition to the changes discussed above, USDA is proposing to
simplify the definition of the term ``BEES'' by removing the references
to the BEES User Guide and Web site from the current definition, as
this information is not necessary to define the term. USDA is also
revising the format of the definition of ``procuring agency'' to make
it consistent with the other definitions in section 3201.2 and adding a
definition of the term ``relevant stakeholder,'' which is used in the
proposed revision to Sec. 3201.1 to refer to non-Federal stakeholders
having an interest or involvement in the BioPreferred program.
C. 7 CFR 3201.3--Applicability to Federal Procurements; and 7 CFR
3201.4--Procurement Programs
USDA is proposing to revise the text in Sec. Sec. 3201.3 and
3201.4 to be consistent with the decision to clarify the terminology
used in the BioPreferred program by avoiding, to the extent possible,
the use of the terms ``item'' and ``designated item.'' As proposed, the
references in the sections will be to ``products'' and ``qualifying
biobased products,'' as applicable. The revisions in these sections
will make the terminology consistent throughout the rule but will have
no other effect on the rule.
D. 7 CFR 3201.5--Item Designation
USDA is proposing to change the name of this section to ``Category
Designation'' and to make several revisions to the text of the section.
In addition to the change in terminology from ``item'' to ``product
category,'' the section, as proposed, adds procedures for the
designation of both intermediate ingredient or feedstock categories and
the final products that are made from
[[Page 25635]]
those designated intermediate ingredients or feedstocks. As proposed,
paragraph (a) of the section will include three sub-paragraphs.
Sub-paragraph (1) presents the procedure for designating product
categories, which are generic groupings of specific products or complex
assemblies that are commercially available to procuring agencies.
Sub-paragraph (2) presents the procedure for designating
intermediate ingredient or feedstock categories, which are generic
groupings of specific intermediate ingredients or feedstocks that are
subsequently used in the manufacture of final products. The designation
of intermediate ingredient or feedstock categories, as proposed, will
follow the same process that USDA uses in the ongoing designation of
product categories. USDA will establish a minimum biobased content for
each intermediate ingredient or feedstock category based on an
evaluation of the available biobased content data. The minimum biobased
content requirement will be set at the highest level practicable,
considering technological limitations.
USDA recognizes that, in general, the Federal government does not
purchase large quantities of intermediate ingredients and feedstocks.
Designating such materials, then, represents a means to include
finished products made from such designated materials in the Federal
biobased products procurement preference program.
Sub-paragraph (3) presents the procedure for designating those
final products that are made from designated intermediate ingredients
or feedstocks. The FCEA states that USDA shall ``automatically
designate'' final products composed of designated intermediate
ingredients or feedstocks if the content of the designated intermediate
ingredients or feedstocks exceeds 50 percent of the final product
(unless the Secretary determines a different composition percentage is
appropriate). Even though the FCEA uses the term ``automatically'' when
specifying that these final products are eligible for the Federal
procurement preference, they still must be incorporated into the
Guidelines by publication in the Federal Register. USDA is proposing a
procedure whereby the designation of these final products would be done
in conjunction with the designation of the intermediate ingredient or
feedstock categories.
During the process of designating intermediate ingredient or
feedstock categories, USDA would also gather information on the various
types of final products that are, or can be, made from those
intermediate ingredients or feedstocks. Those final products that are
identified during the information gathering process would be listed in
the Federal Register proposed rule for designating the intermediate
ingredient or feedstock categories. USDA would also specify in the
proposed rule a minimum biobased content for each of the final products
based on the amount of designated intermediate ingredients or
feedstocks such products contain. Public comment would be invited on
the list of potential final products, and the minimum biobased content
for each, as well as on the intermediate ingredient or feedstock
categories being proposed for designation. Public comments on the list
of potential final products would be considered, along with any
additional information gathered by USDA, and the list would be
finalized. When the final rule designating the intermediate ingredient
or feedstock categories, by adding them to subpart B, is published in
the Federal Register, the list of final products would also be added to
subpart B. Once these final products are listed in subpart B, they
become eligible for the Federal procurement preference.
USDA is proposing that paragraph (b) of Sec. 3201.5 be amended to
add a statement that ``USDA will designate for preferred procurement
those product categories and intermediate ingredient or feedstock
categories that are determined to create new and emerging markets for
biobased materials.'' This statement is being added to emphasize the
section 9002 objectives ``to improve demand for biobased products'' and
``to spur development of the industrial base through value-added
agricultural processing and manufacturing in rural communities.''
USDA is also proposing to amend paragraph (c) of Sec. 3201.5 to
delete the exclusion (currently found in 3201.5(c)(2)) for products
that are determined to have mature markets. This exclusion is being
removed, in conjunction with the additions to paragraph (b), as part of
USDA efforts to emphasize the intent to create new and emerging markets
for biobased materials.
E. 7 CFR 3201.6--Providing Product Information to Federal Agencies
USDA is proposing to create two sub-paragraphs under paragraph (a)
of Sec. 3201.6. The first sub-paragraph describes the type of
information provided on the USDA-maintained Web site and has been
updated to include reference to products within designated intermediate
ingredient or feedstock categories. The second sub-paragraph is new and
notifies stakeholders that the BioPreferred Web site will also include
the National Testing Center Registry, an electronic listing of
recognized industry standard testing organizations.
F. 7 CFR 3201.7--Determining Biobased Content
USDA is proposing to make several revisions to Sec. 3201.7.
Proposed paragraphs (a) and (b) have been revised to refer to
designated product categories, rather than to designated items, and to
include references to the new designated intermediate ingredient or
feedstock categories. Proposed paragraph (c) has been updated to refer
to the new name for ASTM Standard Method D-6866. Proposed paragraph (c)
has also been revised to include three sub-paragraphs.
Sub-paragraph (1) states that the biobased content for biobased
products and intermediate ingredients or feedstocks will be based on
the amount of biobased carbon in the product or material as percent of
the weight (mass) of the total organic carbon in the product or
material.
Sub-paragraph (2) states that for final products composed of
intermediate ingredient or feedstock materials, the biobased content of
the final product will be determined by multiplying the percentage by
weight (mass) of the intermediate ingredient or feedstock material in
the final product times the percentage of biobased content of the
intermediate ingredient or feedstock material and dividing the result
by 100. For example: a product is formulated such that 25 percent of
its total weight is component A and component A is a biobased feedstock
material that is 60 percent biobased; 40 percent of the total weight of
the product is component B and component B is a biobased feedstock
material that is 80 percent biobased. The biobased content of the final
product is 47 percent [(25 * 60 = 1500) + (40 * 80 = 3200) = 4700/100 =
47 percent]. This approach was selected because the manufacturer of the
final product can determine the biobased content of their final product
using their own formulation data and knowledge of the biobased content
of the intermediate ingredient or feedstock as certified by the
manufacturer of that material. The cost of performing ASTM 6866 testing
on the final product is, thus, avoided.
Sub-paragraph (3) specifies the proposed procedure for determining
the biobased content of complex assemblies. USDA is proposing that the
biobased content of complex assemblies be calculated using the
following equation:
[[Page 25636]]
[GRAPHIC] [TIFF OMITTED] TP01MY12.001
Where:
BC = biobased content of the complex assembly product, (percent);
BCi = biobased content of an individual component that
has the potential to be manufactured with biobased material
(percent);
Wi = weight of an individual component that has the
potential to be manufactured with biobased material, (mass unit);
and
WT = total weight of all components that have the
potential to be manufactured with biobased material (mass unit).
The result of the equation is a weighted average that is based on
the summation of the biobased content of each individual component that
contains, or could contain, biobased material divided by the total
weight of all those components. USDA considered dividing the summation
in the numerator of the equation by the total weight of the entire
assembled product. However, USDA believes that the results of such an
approach could be misleading because the weight of non-biobased
components is expected to be drastically different among the various
complex assemblies. For example, both an automobile and a computer may
have several individual components that could potentially be
manufactured with biobased materials. If all of these individual
components in both the automobile and the computer were made of 100
percent biobased material, the equation above would result in a
calculated biobased content of 100 percent for both the automobile and
the computer. This would indicate that both complex assemblies (the
automobile or the computer) contained the maximum biobased content
possible, given that many components of the completed complex
assemblies cannot be made from biobased materials. If, however, the
biobased content was based on the total weight of the completed complex
assembly, the results would not be comparable for the two example
complex assemblies. The possible amount of biobased material in an
automobile divided by the total weight of the automobile would be a
very small percentage because of the amount of metal and glass in the
automobile that cannot be made of biobased material. For the computer,
however, the percentage would be considerably higher because a much
larger portion of the completed assembly can be made from biobased
materials. Thus, USDA selected the approach presented in the equation
above because it provides results that relate to the maximum amount of
biobased material that could potentially be found in each complex
assembly, regardless of the amount or type of materials used in other
components. Two example calculations using the proposed approach are
provided below.
Example 1:
A completed complex assembly contains 10 components, 7
of the components are made from steel and the other 3 (components X,
Y, and Z) are plastic and could be manufactured using biobased
plastic resins
Component X weighs 5 pounds and is made from a resin
with 40 percent biobased content
Component Y weighs 7 pounds and is made from a resin
with 50 percent biobased content
Component Z weighs 15 pounds and is made from a resin
with 60 percent biobased content
The biobased content of the completed complex assembly
is calculated as follows:
[GRAPHIC] [TIFF OMITTED] TP01MY12.002
Example 2:
Another manufacturer makes a version of the complex
assembly described in Example 1 (contains 10 components, 7 of the
components are made from steel and the other 3 are plastic and could
be manufactured using biobased plastic resins)
Component X weighs 5 pounds and is made from a
petroleum-based resin (0 percent biobased content)
Component Y weighs 7 pounds and is made from a resin
with 20 percent biobased content
Component Z weighs 15 pounds and is made from a resin
with 90 percent biobased content
The biobased content of the completed complex assembly
is calculated as follows:
[GRAPHIC] [TIFF OMITTED] TP01MY12.003
These examples show how the proposed equation would be applied and
also show the importance of using a weighted approach to calculating
the biobased content of the completed complex assembly. In example 1,
the manufacturer uses three components that all contain about 50
percent biobased content and uses a total of 14.50 pounds of biobased
material in the manufacturing of the complex assembly. In example 2,
the manufacturer only uses biobased material in two of the three non-
steel components, with one of those components containing only 20
percent biobased content. However, because the largest component is
made from 90 percent biobased material, the total weight of the
biobased material in the completed complex assembly is 14.90 pounds.
USDA believes that the proposed method of calculating the biobased
content of complex assemblies provides manufacturers the maximum amount
of flexibility in their processes while recognizing the actual amount
of biobased material usage in a reasonable, equitable, and practical
manner.
USDA acknowledges that the determination of which components of a
complex assembly have the ``potential'' to be made from biobased
materials will require significant input and cooperation from
stakeholders. USDA will solicit input from industry trade
organizations, as well as individual manufacturers of complex
assemblies and intermediate ingredients or feedstocks, during the
development of the technical information for the proposed rule
designating a complex assembly. USDA will use this information to
develop a minimum biobased content to include in the proposed rule.
USDA will also ask for additional information in the proposal and will
consider any information provided during the public comment period.
USDA will use this stakeholder input to identify, for each category of
complex assembly products that is designated, the components that have
the potential to be made from biobased materials.
USDA is also proposing to revise paragraph (d) of Sec. 3201.7 to
add a reference to intermediate ingredients or feedstocks to the
existing provisions of the paragraph. Paragraph (d) states that where
multiple products are marketed under several brand names but are all
essentially the same formulation, the biobased content testing does not
have to be brand-name specific. This provision reduces the cost of
biobased content testing for manufacturers of products or intermediate
ingredients or feedstocks who sell their products or materials under
more than one brand name.
G. 7 CFR 3201.8--Determining Life Cycle Costs, Environmental and Health
Benefits, and Performance
USDA is proposing to change the name of this section to
``Determining relative price, environmental and health benefits, and
performance.'' In the original guidelines, manufacturers were required,
under Sec. 3201.8(a), to provide life cycle cost information from
either a BEES analysis or a similar analysis using ASTM D7075 when such
information was requested by a Federal
[[Page 25637]]
agency. In response to the language in section 9001 of the FCEA and
numerous comments by stakeholders, USDA previously amended Sec. 3201.8
(76 FR 6322) to eliminate this requirement. In today's proposed
revisions, USDA is adding language to paragraph (a) encouraging
stakeholders to develop and provide information on environmental and
public health benefits, including life cycle costs, associated with
their biobased products. While Federal agencies may no longer require
such information from manufacturers of biobased products, USDA believes
that information from life cycle analyses (LCA) will be a valuable tool
in the marketing of biobased products. Numerous stakeholders have
provided comments and recommendations regarding the role of LCA in the
BioPreferred program and USDA acknowledges that opinions vary widely on
the benefits and the most appropriate approach to conducting LCA. USDA
considered requiring that manufacturers perform LCA on their biobased
products but decided that such a requirement would not be appropriate
at this time, given the issues raised by stakeholders. USDA continues
to believe, however, that the availability of LCA information,
developed using industry-accepted approaches, such as the ASTM D7075
standard or the BEES analytical tool, may be valuable in Federal
procurements that take into account human health, environmental, or
disposal considerations in the product selection process. Thus, USDA is
encouraging biobased product manufacturers to voluntarily perform these
analyses and make the information available for posting on the
BioPreferred Web site.
H. 7 CFR 3201.9--Funding for Testing
USDA is proposing to remove the existing text related to funding
for BEES and other life cycle cost analyses from this section and
reserve the section.
I. Subpart B--Designated Items
USDA is proposing to change the title of subpart B of part 3201 to
read as follows: ``Subpart B--Designated Product Categories and
Intermediate Ingredients or Feedstocks.'' We are proposing this change
so that the title will be consistent with the revised terminology being
proposed for the BioPreferred Program.
V. Request for Comment
USDA is requesting comment on all aspects of today's proposed
amendments to the Guidelines. In particular, USDA requests that
stakeholders provide comment on the following topics:
1. Whether the use of the new terms ``product category,''
``designated product category,'' and ``qualifying biobased product''
add clarity and, if not, suggestions on terms that would be more clear.
2. Whether the proposed procedure for designating final products
made from designated intermediate ingredients or feedstocks is a
reasonable and workable approach. Commenters are requested to provide
recommendations for alternative approaches to any element of the
procedure they believe is not appropriate.
3. Whether the proposed methodology for determining the biobased
content of final products composed of intermediate ingredient or
feedstock materials is appropriate and, if not, specific
recommendations on an alternative approach.
4. Whether the definition of the term ``complex assembly'' and the
procedure for designating complex assemblies is reasonable and
appropriate.
5. Whether the proposed methodology for determining the biobased
content of complex assemblies is appropriate and, if not, specific
recommendations on an alternative approach.
6. The appropriate role of LCA in the process of qualifying
biobased products for the BioPreferred program and, if you believe
there is a role for LCA, the most appropriate methodology to use.
7. USDA is proposing to revise Sec. 3201.5(b) to state that ``USDA
will designate for preferred procurement those product categories and
intermediate ingredient or feedstock categories that are determined to
create new and emerging markets for biobased materials.'' USDA is also
proposing to remove Sec. 3201.5(c)(2), the exclusion of mature market
products. USDA requests comments on what the term ``new and emerging
markets'' means to stakeholders.
VI. Regulatory Information
A. Executive Orders 12866 and 13563: Regulatory Planning and Review
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action'' under section 3(f) of Executive Order 12866. Accordingly, the
rule has been reviewed by the Office of Management and Budget.
1. Need for the Rule
Today's proposed rule would amend the BioPreferred Program
Guidelines to establish the regulatory framework for the designation of
complex assemblies and intermediate ingredients or feedstocks for
Federal procurement preference. The designation of such products is
specifically required under the Food, Conservation, and Energy Act of
2008, which states that:
``(B) Requirements.--The guidelines under this paragraph shall--
(i) designate those items (including finished products) that are
or can be produced with biobased products (including biobased
products for which there is only a single product or manufacturer in
the category) that will be subject to the preference described in
paragraph (2);
(ii) designate those intermediate ingredients and feedstocks
that are or can be used to produce items that will be subject to the
preference described in paragraph (2);
(iii) automatically designate items composed of intermediate
ingredients and feedstocks designated under clause (ii), if the
content of the designated intermediate ingredients and feedstocks
exceeds 50 percent of the item (unless the Secretary determines a
different composition percentage is appropriate).''
2. Benefits
We expect that the rule will result in benefits that justify its
cost, but we lack the information to quantify those benefits. This rule
expands the scope of products that may be considered for Federal
procurement preference. The eligibility of intermediate ingredients or
feedstocks and complex assemblies is expected to increase demand for
these products once designated, which, in turn, is expected to increase
demand for those agricultural products that can serve as ingredients
and feedstocks. This Federal procurement preference will thus benefit
businesses producing these ingredients and feedstocks. We request
comment on the magnitude of this effect.
3. Costs
The anticipated costs of this action would stem from reduced demand
for products that do not receive Federal Procurement Preference
designation. Producers of ingredients and feedstocks that are not so
designated could face a loss of market share within Federal
procurement; however, this cost to some producers is a result of
implementing
[[Page 25638]]
the provisions of the statute. As with benefits, we request information
on the costs of this action to help quantify our analysis of impacts.
Although today's proposed rule would establish procedures for
designating qualifying biobased product categories, no product
categories are proposed to be designated today. The actual designation
of biobased product categories under this program will be accomplished
through future rulemaking actions and the effect of those rulemakings
on the economy will be addressed at that time.
B. Regulatory Flexibility Act (RFA)
The RFA, 5 U.S.C. 601-602, generally requires an agency to prepare
a regulatory flexibility analysis of any rule subject to notice and
comment rulemaking requirements under the Administrative Procedure Act
or any other statute unless the agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
Although the BioPreferred Program ultimately may have a direct
impact on a substantial number of small entities, USDA has determined
that today's proposed rule itself will not have a direct significant
economic impact on a substantial number of small entities. This rule
will directly affect Federal agencies, which will be required to
consider designated products for purchase. In addition, private sector
manufacturers and vendors of biobased products voluntarily may provide
information to USDA through the means set forth in this rule. However,
the rule imposes no requirement on manufacturers and vendors to do so,
and does not differentiate between manufacturers and vendors based on
size. USDA does not know how many small manufacturers and vendors may
opt to participate at this stage of the program.
As explained above, when USDA issues a proposed rulemaking to
designate product categories for preferred procurement under this
program, USDA will assess the anticipated impact of such designations,
including the impact on small entities. USDA anticipates that this
program will positively impact small entities which manufacture or sell
biobased products. For example, once product categories are designated,
this program will provide additional opportunities for small businesses
to manufacture and sell biobased products to Federal agencies. This
program also will impact indirectly small entities that supply biobased
materials to manufacturers. Additionally, this program may decrease
opportunities for small businesses that manufacture or sell non-
biobased products or provide components for the manufacturing of such
products. It is difficult for USDA to definitively assess these
anticipated impacts on small entities until USDA proposes product
categories for designation. This rule does not designate any product
categories.
C. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This proposed rule has been reviewed in accordance with Executive
Order 12630, Governmental Actions and Interference With
Constitutionally Protected Property Rights, and does not contain
policies that would have implications for these rights.
D. Executive Order 12988: Civil Justice Reform
This proposed rule has been reviewed in accordance with Executive
Order 12988, Civil Justice Reform. This rule would not preempt State or
local laws, is not intended to have retroactive effect, and would not
involve administrative appeals.
E. Executive Order 13132: Federalism
This proposed rule would not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Provisions of this rule would not have a substantial direct effect on
States or their political subdivisions or on the distribution of power
and responsibilities among the various government levels.
F. Unfunded Mandates Reform Act of 1995
This proposed rule contains no Federal mandates under the
regulatory provisions of Title II of the Unfunded Mandates Reform Act
of 1995 (UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal
governments, or the private sector. Therefore, a statement under
section 202 of UMRA is not required.
G. Executive Order 12372: Intergovernmental Review of Federal Programs
For the reasons set forth in the Final Rule Related Notice for 7
CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is
excluded from the scope of the Executive Order 12372, which requires
intergovernmental consultation with State and local officials. This
program does not directly affect State and local governments.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Today's proposed rule does not significantly or uniquely affect
``one or more Indian tribes, * * * the relationship between the Federal
Government and Indian tribes, or * * * the distribution of power and
responsibilities between the Federal Government and Indian tribes.''
Thus, no further action is required under Executive Order 13175.
I. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 through 3520), the information collection under the Guidelines is
currently approved under OMB control number 0503-0011.
J. E-Government Act Compliance
USDA is committed to compliance with the E-Government Act, which
requires Government agencies, in general, to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. USDA is implementing an electronic
information system for posting information voluntarily submitted by
manufacturers or vendors on the products they intend to offer for
Federal preferred procurement under each designated item. For
information pertinent to E-Government Act compliance related to this
rule, please contact Ron Buckhalt at (202) 205-4008.
List of Subjects in 7 CFR Part 3201
Biobased products, Procurement.
For the reasons stated in the preamble, the Department of
Agriculture is proposing to amend 7 CFR chapter XXXII as follows:
CHAPTER XXXII--OFFICE OF PROCUREMENT AND PROPERTY MANAGEMENT
PART 3201--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL
PROCUREMENT
1. The authority citation for part 3201 continues to read as
follows:
Authority: 7 U.S.C. 8102.
2. Section 3201.1 is amended by revising paragraph (b) to read as
follows:
Sec. 3201.1 Purpose and scope.
* * * * *
(b) Scope. The guidelines in this part establish a process for
designating categories of products (including those for which there is
only a single product
[[Page 25639]]
or manufacturer) that are, or can be, produced with biobased components
and materials and whose procurement by procuring agencies and other
relevant stakeholders will carry out the objectives of section 9002 of
FSRIA. The guidelines also establish a process for designating
categories of intermediate ingredients and feedstocks that are, or can
be, used to produce final products that will be designated and, thus,
subject to Federal preferred procurement. The guidelines also establish
a process for calculating the biobased content of complex assembly
products, whose biobased content cannot be measured following ASTM
Standard Method D-6866, and for designating complex assembly product
categories.
3. Section 3201.2 is amended by:
a. Revising the definitions of ``BEES,'' ``Biobased product,'' and
``Procuring agency'';
b. Deleting the definition of ``Designated item''; and
c. Adding, in alphabetical order, new definitions for ``Complex
assembly,'' ``Designated intermediate ingredient or feedstock
category,'' ``Designated product category,'' ``Intermediate ingredient
or feedstock,'' ``Qualifying biobased product,'' and ``Relevant
stakeholder'' to read as follows:
Sec. 3201.2 Definitions.
* * * * *
BEES. An acronym for ``Building for Environmental and Economic
Sustainability,'' an analytic tool used to determine the environmental
and health benefits and life cycle costs of products and materials,
developed by the U.S. Department of Commerce National Institute of
Standards and Technology.
* * * * *
Biobased product. A product determined by USDA to be a commercial
or industrial product (other than food or feed) that is:
(1) composed, in whole or in significant part, of biological
products, including renewable domestic agricultural materials and
forestry materials; or
(2) an intermediate ingredient or feedstock.
* * * * *
Complex assembly. A system of distinct materials and components
assembled to create a finished product with specific functional intent
where some or all of the system inputs contain some amount of biobased
material or feedstock.
Designated intermediate ingredient or feedstock category. A generic
grouping of biobased intermediate ingredients or feedstocks identified
in subpart B of this part that, when used in the production of a
resultant final product, qualifies the resultant final product for the
procurement preference established under section 9002 of FSRIA.
Designated product category. A generic grouping of biobased
products, including those final products made from designated
intermediate ingredients or feedstocks, or complex assemblies
identified in subpart B of this part that is eligible for the
procurement preference established under section 9002 of FSRIA.
* * * * *
Intermediate ingredient or feedstock. A material or compound made
in whole or in significant part from biological products, including
renewable agricultural materials (including plant, animal, and marine
materials) or forestry materials that have undergone a significant
amount of value added processing (including thermal, chemical,
biological, and mechanical), excluding harvesting operations, offered
for sale by a manufacturer or vendor and that is subsequently used to
make a more complex compound or product.
* * * * *
Procuring agency. Any Federal agency that is using Federal funds
for procurement or any person contracting with any Federal agency with
respect to work performed under the contract.
* * * * *
Qualifying biobased product. A product that is eligible for Federal
preferred procurement because it meets the definition and minimum
biobased content criteria for one or more designated product
categories, or one or more designated intermediate ingredient or
feedstock categories, as specified in subpart B of this part.
* * * * *
Relevant stakeholder. Individuals or officers of state or local
government organizations, private non-profit institutions or
organizations, and private businesses or consumers.
* * * * *
4. Section 3201.3 is amended by revising paragraphs (c) and (d) to
read as follows:
Sec. 3201.3 Applicability to Federal procurements.
* * * * *
(c) Procuring products composed of the highest percentage of
biobased content. Section 9002(a)(2) of FSRIA requires procuring
agencies to procure qualifying biobased products composed of the
highest percentage of biobased content practicable or such products
that comply with the regulations issued under section 103 of Public Law
100-556 (42 U.S.C. 6914b-1). Procuring agencies may decide not to
procure such qualifying biobased products if they are not reasonably
priced or readily available or do not meet specified or reasonable
performance standards.
(d) This guideline does not apply to purchases of qualifying
biobased products that are unrelated to or incidental to Federal
funding; i.e., not the direct result of a contract or agreement with
persons supplying items to a procuring agency or providing support
services that include the supply or use of products.
* * * * *
5. Section 3201.4 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 3201.4 Procurement programs.
* * * * *
(b) Federal agency preferred procurement programs.(1) On or before
[date 1 year after publication of the final rule in the Federal
Register], each Federal agency shall develop a procurement program
which will assure that qualifying biobased products are purchased to
the maximum extent practicable and which is consistent with applicable
provisions of Federal procurement laws. Each procurement program shall
contain:
(i) A preference program for purchasing qualifying biobased
products,
(ii) A promotion program to promote the preference program; and
(iii) Provisions for the annual review and monitoring of the
effectiveness of the procurement program.
(2) In developing the preference program, Federal agencies shall
adopt one of the following options, or a substantially equivalent
alternative, as part of the procurement program:
(i) A policy of awarding contracts on a case-by-case basis to the
vendor offering a qualifying biobased product composed of the highest
percentage of biobased content practicable except when such products:
(A) Are not available within a reasonable time;
(B) Fail to meet performance standards set forth in the applicable
specifications, or the reasonable performance standards of the Federal
agency; or
(C) Are available only at an unreasonable price.
(ii) A policy of setting minimum biobased content specifications in
such a way as to assure that the required biobased content of
qualifying biobased products is consistent with section 9002 of FSRIA
and the requirements of the
[[Page 25640]]
guidelines in this part except when such products:
(A) Are not available within a reasonable time;
(B) Fail to meet performance standards for the use to which they
will be put, or the reasonable performance standards of the Federal
agency; or
(C) Are available only at an unreasonable price.
(3) In implementing the preference program, Federal agencies shall
treat as eligible for the preference biobased products from
``designated countries,'' as that term is defined in Sec. 25.003 of
the Federal Acquisition Regulation, provided that those products
otherwise meet all requirements for participation in the preference
program.
(c) Procurement specifications. After the publication date of each
designated product category and each designated intermediate ingredient
or feedstock category, Federal agencies that have the responsibility
for drafting or reviewing specifications for products procured by
Federal agencies shall ensure within a specified time frame that their
specifications require the use of qualifying biobased products,
consistent with the guidelines in this part. USDA will specify the
allowable time frame in each designation rule. The biobased content of
qualifying biobased products within a designated product category or a
designated intermediate ingredient or feedstock category may vary
considerably from product to product based on the mix of ingredients
used in its manufacture. Likewise, the biobased content of qualifying
biobased products that qualify because they are made from materials
within designated intermediate ingredient or feedstock categories may
also vary significantly. In procuring qualifying biobased products, the
percentage of biobased content should be maximized, consistent with
achieving the desired performance for the product.
6. Section 3201.5 is amended by revising the title of the section
and by revising paragraphs (a), (b), and (c) to read as follows:
Sec. 3201.5 Category designation.
(a) Procedure. Designated product categories, designated
intermediate ingredient or feedstock categories, and designated final
products composed of qualifying intermediate ingredients or feedstocks
are listed in subpart B of this part.
(1) In designating product categories, USDA will designate
categories composed of generic groupings of specific products or
complex assemblies and will identify the minimum biobased content for
each listed category or subcategory. As product categories are
designated for procurement preference, they will be added to subpart B
of this part.
(2) In designating intermediate ingredient or feedstock categories,
USDA will designate categories composed of generic groupings of
specific intermediate ingredients or feedstocks, and will identify the
minimum biobased content for each listed category or sub-category. As
categories are designated for product qualification, they will be added
to subpart B of this part. USDA encourages manufacturers and vendors of
intermediate ingredients or feedstocks to provide USDA with information
relevant to significant potential applications for intermediate
ingredients or feedstocks, including estimates of typical formulation
rates.
(3) During the process of designating intermediate ingredient or
feedstock categories, USDA will also gather information on the various
types of final products that are, or can be, made from those
intermediate ingredients or feedstocks. Final products that are
identified during the information gathering process will be listed in
the Federal Register proposed rule for designating the intermediate
ingredient or feedstock categories. A minimum biobased content for each
of the final products will also be identified based on the amount of
designated intermediate ingredients or feedstocks such products
contain. Public comment will be invited on the list of potential final
products, and the minimum biobased content for each, as well as on the
intermediate ingredient and feedstock categories being proposed for
designation. Public comments on the list of potential final products
will be considered, along with any additional information gathered by
USDA, and the list will be finalized. When the final rule designating
the intermediate ingredient or feedstock categories, by adding them to
subpart B of this part, is published in the Federal Register, the list
of final products will also be added to subpart B of this part. Once
these final products are listed in subpart B of this part, they will
become eligible for the Federal procurement preference.
(b) Considerations. (1) In designating product categories and
intermediate ingredient or feedstock categories, USDA will consider the
availability of qualifying biobased products and the economic and
technological feasibility of using such products, including relative
price. USDA will gather information on individual qualifying biobased
products within a category and extrapolate that information to the
category level for consideration in designating categories.
(2) In accordance with USDA interpretation of the intent of section
9002 of the Farm Security and Rural Investment Act of 2002 (FSRIA), as
amended by the Food, Conservation, and Energy Act of 2008 (FCEA), 7
U.S.C. 8102, USDA will designate for preferred procurement those
product categories and intermediate ingredient or feedstock categories
that are determined to create new and emerging markets for biobased
materials.
(c) Exclusions. Motor vehicle fuels, heating oil, and electricity
are excluded by statute from this program.
7. Section 3201.6 is amended by revising paragraph (a) to read as
follows:
Sec. 3201.6 Providing product information to Federal agencies.
(a) Informational Web site. An informational USDA Web site
implementing section 9002 of FSRIA can be found at: http://www.biopreferred.gov. USDA will maintain a voluntary Web-based
information site for manufacturers and vendors of qualifying biobased
products and Federal agencies to exchange information, as described in
paragraphs (a)(1) and (2) of this section.
(1) Product Information. The Web site will provide information as
to the availability, relative price, biobased content, performance and
environmental and public health benefits of the designated product
categories and designated intermediate ingredient or feedstock
categories. USDA encourages manufacturers and vendors to provide
product and business contact information for designated categories.
Instructions for posting information are found on the Web site itself.
USDA also encourages Federal agencies to utilize this Web site to
obtain current information on designated categories, contact
information on manufacturers and vendors, and access to information on
product characteristics relevant to procurement decisions. In addition
to any information provided on the Web site, manufacturers and vendors
are expected to provide relevant information to Federal agencies,
subject to the limitations specified in Sec. 3201.8(a), with respect
to product characteristics, including verification of such
characteristics if requested.
(2) National Testing Center Registry. The Web site will include an
electronic listing of recognized industry standard testing
organizations that will serve biobased product manufacturers such as
ASTM International, Society of Automotive Engineers, and the
[[Page 25641]]
American Petroleum Institute. USDA encourages stakeholders to submit
information on other possible testing resources to the BioPreferred
Program for inclusion.
* * * * *
8. Section 3201.7 is revised to read as follows:
Sec. 3201.7 Determining biobased content.
(a) Certification requirements. For any qualifying biobased product
offered for preferred procurement, manufacturers and vendors must
certify that the product meets the biobased content requirements for
the designated product category or designated intermediate ingredient
or feedstock category within which the qualifying biobased product
falls. Paragraph (c) of this section addresses how to determine
biobased content. Upon request, manufacturers and vendors must provide
USDA and Federal agencies information to verify biobased content for
products certified to qualify for preferred procurement.
(b) Minimum biobased content. Unless specified otherwise in the
designation of a particular product category or intermediate ingredient
or feedstock category, the minimum biobased content requirements in a
specific category designation refer to the organic carbon portion of
the product, and not the entire product.
(c) Determining biobased content. Verification of biobased content
must be based on third party ASTM/ISO compliant test facility testing
using the ASTM Standard Method D 6866, ``Standard Test Methods for
Determining the Biobased Content of Solid, Liquid, and Gaseous Samples
Using Radiocarbon Analysis.'' ASTM Standard Method D 6866 determines
biobased content based on the amount of biobased carbon in the material
or product as percent of the weight (mass) of the total organic carbon
in the material or product.
(1) Biobased products, intermediate ingredients or feedstocks.
Biobased content will be based on the amount of biobased carbon in the
product or material as percent of the weight (mass) of the total
organic carbon in the product or material.
(2) Final products composed of intermediate ingredient or feedstock
materials. The biobased content of final products composed of
intermediate ingredient or feedstock materials will be determined by
multiplying the percentage by weight (mass) of each intermediate
ingredient or feedstock material in the final product times the
percentage of biobased content of each intermediate ingredient or
feedstock material, summing the results (if more than one intermediate
ingredient or feedstock is used), and dividing the resultant value by
100.
(3) Complex assemblies. The biobased content of a complex assembly
product, where the product has ``n'' components, will be determined
using the following equation:
[GRAPHIC] [TIFF OMITTED] TP01MY12.004
Where:
BC = biobased content of the complex assembly product, (percent);
BCi = biobased content of an individual component that
has the potential to be manufactured with biobased material
(percent);
Wi = weight of an individual component that has the
potential to be manufactured with biobased material, (mass unit);and
WT = total weight of all components that have the
potential to be manufactured with biobased material (mass unit).
For each category of complex assembly products designated for
Federal preferred procurement, USDA will identify, at the time of
designation, each individual component that has the potential to be
manufactured with biobased material.
(d) Products and intermediate ingredients or feedstocks with the
same formulation. In the case of products and intermediate ingredients
or feedstocks that are essentially the same formulation, but marketed
under more than one brand name, biobased content test data need not be
brand-name specific.
9. Section 3201.8 is amended by revising the title of the section
and by revising paragraphs (a) and (b) to read as follows:
Sec. 3201.8 Determining relative price, environmental and health
benefits, and performance.
(a) Providing information on relative price and environmental and
health benefits. Federal agencies may not require manufacturers or
vendors of qualifying biobased products to provide to procuring
agencies more data than would be required of other manufacturers or
vendors offering products for sale to a procuring agency (aside from
data confirming the biobased contents of the products) as a condition
of the purchase of biobased products from the manufacturer or vendor.
USDA will work with manufacturers and vendors to collect information
needed to estimate relative price of biobased products, complex
assemblies, intermediate materials or feedstocks as part of the
designation process, including application units, average unit cost,
and application frequency. USDA encourages industry stakeholders to
provide information on environmental and public health benefits based
on industry accepted analytical approaches including, but not limited
to: Material carbon footprint analysis, the ASTM D7075 standard for
evaluating and reporting on environmental performance of biobased
products, the International Standards Organization ISO 14040, the ASTM
International life-cycle cost method (E917) and multi-attribute
decision analysis (E1765), the British Standards Institution PAS 2050,
and the National Institute of Standards and Technology BEES analytical
tool. USDA will make such stakeholder-supplied information available on
the BioPreferred Web site.
(b) Performance test information. In assessing performance of
qualifying biobased products, USDA requires that procuring agencies
rely on results of performance tests using applicable ASTM, ISO,
Federal or military specifications, or other similarly authoritative
industry test standards. Such testing must be conducted by a laboratory
compliant with the requirements of the standards body. The procuring
official will decide whether performance data must be brand-name
specific in the case of products that are essentially of the same
formulation.
* * * * *
Sec. 3201.9 [Reserved]
10. Remove and reserve Sec. 3201.9.
11. Revise the heading to Subpart B of Part 3201 to read as
follows:
Subpart B--Designated Product Categories and Intermediate
Ingredients or Feedstocks
Dated: April 25, 2012.
Oscar Gonzales,
Deputy Assistant Secretary for Administration, U.S. Department of
Agriculture.
[FR Doc. 2012-10420 Filed 4-30-12; 8:45 am]
BILLING CODE 3410-93-P