[Federal Register Volume 79, Number 148 (Friday, August 1, 2014)]
[Rules and Regulations]
[Pages 44641-44657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18031]
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DEPARTMENT OF AGRICULTURE
Office of Procurement and Property Management
7 CFR Part 3201
RIN 0599-AA18
Guidelines for Designating Biobased Products for Federal
Procurement
AGENCY: Office of Procurement and Property Management, USDA.
ACTION: Final rule; amendments.
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SUMMARY: The U.S. Department of Agriculture (USDA) is amending its
regulations concerning 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. USDA is also announcing that an additional
rulemaking activity will be initiated to further amend the Guidelines
to address the provisions of the recently signed Agricultural Act of
2014.
DATES: This rule is effective September 2, 2014.
FOR FURTHER INFORMATION CONTACT: Ron Buckhalt, USDA, Office of
Procurement and Property Management, Room 361, Reporters Building, 300
7th St. SW.,
[[Page 44642]]
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. Summary of Changes
V. Discussion of Public Comments
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
K. Congressional Review Act
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.''
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. On February 4, 2011, USDA published in the Federal
Register a direct final rule amending the Guidelines to make them
consistent with certain technical changes to section 9002 of FSRIA as
required by the FCEA. The technical changes made in 2011 clarified
specific terminology and definitions used in the Guidelines.
The purpose of today's rule amendments, which were proposed in the
Federal Register on May 1, 2012, is to revise the Guidelines to
incorporate programmatic changes to section 9002 of FSRIA that were
included in the FCEA. These rule amendments do 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 rulemaking actions.
III. Executive Summary
USDA is amending 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 on June 18, 2008. The second reason is to
make improvements to the existing rule based on several years of
operating experience.
A. Summary of Major Provisions of the Final Rule
1. Designation of Intermediate or Feedstock Categories
The designation of intermediate ingredient or feedstock categories
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.
Today's final rule establishes the procedure for designating
product categories for 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 final products in these
product categories are eligible for the Federal procurement preference,
they still must be incorporated into the Guidelines by publication in
the Federal Register. USDA is establishing a procedure whereby the
designation of product categories that include these final products
would be done in conjunction with the designation of the intermediate
ingredient or feedstock categories.
2. Designation of Complex Assembly Categories
Today's final rule establishes procedures for designating complex
assembly products (multi-component assembled products with one or more
component(s) 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 final rule specifies a procedure for determining the
biobased content of complex assemblies. USDA is finalizing an equation
that yields the ratio of the mass of biobased carbon in the assembly to
the mass of total organic carbon in the assembly. USDA selected this
approach because it yields the same biobased content that would be
determined by ASTM D6866 if the assembly could be tested.
3. Replacement of ``Designated Item'' With ``Designated Product
Category''
Previously, the Guidelines used 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
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 replacing the term ``designated item''
with the term ``designated product category.'' In addition, USDA is
adding a definition for the term ``qualified 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
[[Page 44643]]
preference. Although these changes are not required by section 9001 of
FCEA, USDA believes the changes add clarity to the rule.
4. Deletion of Mature Markets Exclusion
USDA is deleting the text previously found in paragraph (c)(2) of
section 3201.5 that excluded products that were considered to be mature
market products. This exclusion has been challenged by numerous
stakeholder groups. The Agricultural Act of 2014, which was signed into
law on February 7, 2014, includes provisions that remove the mature
market exclusion. With today's final rule, USDA has removed the text
previously found in paragraph (c)(2). USDA will proceed with a separate
rulemaking package to address the provisions of the Agricultural Act of
2014.
B. Costs and Benefits
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Type Costs Benefits
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Quantitative................ 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
2. Costs to gather envisioned by
and submit biobased Congress in
product information developing the 2002
on the BioPreferred and 2008 Farm
Web site;. Bills.
3. Loss of market 2. Opens new
share by (Federal) market
manufacturers who for biobased
choose not to offer products that USDA
biobased versions designates.
of products.. 3. Opportunity for
new and emerging
biobased products
to be publicized
via BioPreferred
Web site.
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IV. Summary of Changes
As a result of public comments received on the proposed amendments
to the Guidelines, USDA has made changes in finalizing the amendments.
These changes are summarized in the remainder of this section. A
summary of each comment received, USDA's response to the comment or
group of related comments, and the rationale for any change made in the
final rule is presented in section V.
A. 7 CFR 3201.1--Purpose and scope.
This section has been finalized as proposed.
B. 7 CFR 3201.2--Definitions.
The definition of ``designated intermediate ingredients or
feedstocks'' was revised to clarify that finished products made from
those materials qualify for preferred procurement only if they contain
more than 50 percent (or another amount as specified in subpart B of
this part) of the designated intermediate. The definition of
``intermediate ingredients or feedstocks'' was revised to provide
clarity to the term ``value added processing'' that is used in the
definition.
C. 7 CFR 3201.3--Applicability to Federal procurements; and 7 CFR
3201.4--Procurement programs.
These two sections have been finalized as proposed.
D. 7 CFR 3201.5--Category designation.
The text of paragraphs 3201.5(a) and (b) was edited to clarify that
USDA will designate product categories rather than individual products.
A new sentence was added to paragraph 3201.5(a)(3) to state that when
intermediate ingredients or feedstocks are used in the production of
products that fall within a previously designated product category, the
minimum biobased content for those products (to qualify for the
procurement preference) is the minimum specified for the product
category in subpart B.
The language previously found in paragraph 3201.5(c)(2) specifying
that ``mature market'' products would be excluded from the designation
process has been deleted as proposed. However, the new language that
was proposed to be added to paragraph (b)(2) has been dropped and the
paragraph has been reserved for future use to address changes as a
result of the Agricultural Act of 2014.
E. 7 CFR 3201.6--Providing product information to Federal agencies.
This section has been finalized as proposed.
F. 7 CFR 3201.7--Determining biobased content.
USDA has revised the procedure for determining the biobased content
of final products composed of designated intermediate ingredient or
feedstock materials. The revised procedure calculates biobased content
as a percentage of the total organic carbon content in the final
product. USDA has also revised the equation for calculating the
biobased content of complex assemblies to be based on the ratio of the
amount of biobased material in the assembly to the amount of total
organic carbon in the assembly.
G. 7 CFR 3201.8--Determining life cycle costs, environmental and
health benefits, and performance.
USDA has revised the new title for the section, ``Determining
relative price, environmental and health benefits, and performance,''
by deleting the word ``relative.''
H. 7 CFR 3201.9--Funding for testing.
This section has been reserved, as proposed.
V. Discussion of Public Comments
USDA solicited comments on the proposed amendments for 60 days
ending on July 2, 2012. USDA received 19 comments by that date. Three
of the comments were from individual citizens, 12 were from trade
groups, and 4 were from biobased product manufacturers. The comments
are presented below, along with USDA's responses, and are grouped by
the Code of Federal Regulation (CFR) section numbers to which they
apply.
General Comment on BioPreferred Program
Comment: One commenter stated that, given the need for consistency
between the two elements of the overall BioPreferred program, and the
addition of the ingredients and feedstocks to both elements of the
program, USDA should combine both parts of the program into a single
program to most effectively effectuate Congressional intent. The
commenter recommended that all products that qualify for inclusion in
USDA's BioPreferred Catalog should also qualify for Federal procurement
preference. The commenter stated that designated product categories of
biobased products approved for Federal procurement preference could be
used as an organizing guide for the catalog. Having a difference
between the list of products that can be labeled and those that are
subject to a purchasing preference is confusing. The commenter also
stated that, as a corollary, all products approved for procurement
should be entitled to use a label. The commenter stated that it would
remain entirely voluntary with the manufacturer or seller whether to
place a label on the product. The commenter stated that the label has
value as a specifying tool, where a government contractor soliciting
bids from suppliers can simply require that products be within
categories found in the catalog and must bear a label or be qualified
to bear a label. The commenter stated that
[[Page 44644]]
these changes would be easy to apply, would simplify the program, and
would make it more effective.
Response: USDA appreciates the recommendations provided by the
commenter. USDA will consider these and other comments that relate to
the structure and operation of the BioPreferred program and will, at a
later date, evaluate changes that could be made to streamline the
program.
A. 7 CFR 3201.1--Purpose and scope.
No comments were received on the revisions proposed for this
section.
B. 7 CFR 3201.2--Definitions.
Comment: One commenter noted that the terms ``distinct materials''
and ``component'' (used in the definition of ``complex assembly'') have
not been defined. The commenter stated that, if USDA continues to
pursue the approach of measuring biocontent on a component-by-component
basis, the following definition of component would be appropriate: ``a
component is a homogeneous material in a uniquely identifiable part or
piece of an assembled product that (a) is required to complete or
finish an item; (b) performs a distinctive and necessary function on
the operation of a system; or (c) is intended to be included as part of
a finished item.'' The commenter added that the definition of
homogeneous is ``uniform composition throughout an item's entirety.''
The commenter stated that many automotive components are made of
various types of materials including metals that would be included in
the component weight if a component were defined as a heterogeneous
material. For instance, a seat consists of foam, framework, brackets,
buckle mechanisms, fabric, etc. The commenter concluded that because
not every part of a seat assembly can be biobased, only the homogeneous
materials that can be biobased should be included in the component
definition and biobased content calculation.
Response: USDA agrees with the commenter that the recommended
definitions may be necessary when designating complex assemblies used
within the automotive industry. However, because the Guidelines are the
regulatory foundation for the entire program, USDA believes that they
need to remain generic and allow flexibility in implementation. In
industry-specific situations such as those described by the commenter,
the Guidelines definitions can be supplemented on a case-by-case basis
by applicable definitions included in the regulatory text for the
particular complex assembly being designated.
Comment: One commenter agreed that the definition of ``complex
assembly'' is appropriate, but stated that the proposed rulemaking
should provide additional guidance by including examples of complex
assemblies. According to the commenter, carpets would fall under the
definition of complex assemblies because of their various components,
such as the carpet itself, carpet backing, adhesive, insulation
material, etc. Each of these components may be composed of varying
levels of biobased materials. The commenter stated that many of these
biobased products (components) may meet the biobased content criteria
by themselves within the complex assembly definition. However, there
will be instances where certain renewable chemicals (such as an enzyme
in cleaning fluids), intermediate ingredients or feedstocks may not
meet the threshold in the ``designated product category.'' Therefore,
it is not clear from the proposed rulemaking whether these biobased
products will be accounted for in the final biobased complex assembly
products. The commenter stated that more clear guidelines through
Federal Register comments are requested for biobased content
requirements of complex assembly biobased products.
Response: USDA appreciates the commenter's support of the proposed
definition of ``complex assembly.'' With regard to the commenter's
example of an enzyme used in a cleaning fluid, USDA points out that a
product like cleaning fluid would not be a complex assembly. Cleaning
fluids and similar products may contain several ingredients, some of
which may be biobased and some of which may not be. In such a product,
however, the ingredients are blended together to form a uniform mixture
from which a sample can be taken and tested for biobased content using
ASTM D6866. Thus, in such a product, each ingredient that contributes
toward the overall biobased content of the product is counted,
regardless of the amount.
Comment: One commenter stated that, in the definition of
intermediate ingredient or feedstock, USDA should consider further
clarification regarding biomaterials that are used as ``fillers''
(e.g., corn starch, bamboo fiber, etc.). The commenter recommended that
these fillers have been adequately ``processed'' to be distinguished
from raw agricultural ingredients and should be part of the designation
allowance.
Response: USDA agrees with the commenter that ``fillers'' used as
routine ingredients in biobased products have been adequately processed
and should count toward the overall biobased content of the final
product. USDA does not consider the role that the various biobased
ingredients may play in the formulation of finished products (i.e.,
carriers, fillers, or inactive ingredients versus active ingredients)
when determining the minimum required biobased content. Thus, any
biobased material that is an ingredient in the tested product would
count toward the reported biobased content of the product.
Comment: Another commenter recommended the following modification
to the definition of intermediate ingredient or feedstock: 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 or a
significant amount of mechanical processing), excluding harvesting
operations, offered for sale by a manufacturer or vendor and that is
subsequently used to make a more complex compound or product.
Response: USDA agrees that the commenter's suggested revisions to
the proposed definition clarify that the value added processing steps
may be thermal, chemical, biological, or mechanical. The definition in
the final rule has been revised as suggested by the commenter.
Comment: One commenter suggested amending the definition of
``intermediate ingredient or feedstock'' by inserting ``(including a
renewable chemical)'' after ``material or compound.'' The commenter
also suggested adding a definition of ``renewable chemical,'' as
follows: ``The term `renewable chemical' means a monomer, polymer,
plastic, formulated product, or chemical substance produced from
renewable biomass.'' The commenter stated that these amendments will be
consistent with the definitions of ``intermediate ingredient or
feedstock,'' and ``renewable chemical,'' as defined in recent
legislation in the 112th Congress (viz. S.2155, S.3240, and H.R.5955.)
Response: USDA based the proposed definitions on the language in
the 2008 Farm Bill. USDA will re-visit the definitions and other
aspects of the BioPreferred program subsequently, given passage of
Agricultural Act of 2014.
Comment: One commenter stated that the proposed definition of
``intermediate ingredient or feedstock'' is inconsistent with both the
statutory definition and
[[Page 44645]]
the definition of the same term in the labeling rule. The commenter
stated that the proposed definition conflicts with the statute's
definition of the same term, has unintended negative consequences to
the program, and should not be adopted. The statute requires only that
an intermediate ingredient or feedstock be a qualifying biological
material that is ``subsequently used to make a more complex compound or
product.'' The commenter stated that USDA is proposing to narrow
Congress's definition 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 that is subsequently used to make
a more complex product.'' The commenter stated that USDA explains that
this narrowing is necessary to distinguish between raw materials and
intermediate ingredients or feedstock, so that such raw ingredients
will not qualify for government purchases under this program. The
commenter further stated that the proposed rule does not explain why
this distinction is necessary, and that the commenter saw no apparent
reason. The commenter stated that, in reality, depending on the process
and end-product involved, a ``raw'' forestry or agricultural product
may range from many steps removed from the end-product to one step
away. The commenter provided the example of a log, produced by
harvesting a tree, and processing the tree to remove limbs and cutting
the resultant stem to a length deemed suitable for further manufacture
into any of a number of products or feedstocks. An example of further
processing would be the debarking of the log, slicing it into veneer
and gluing the veneer together to make laminated veneer lumber, clearly
a more complex product than the log. The commenter stated that in the
plain words of the statute, a log is a ``forestry material'' ``that is
subsequently used to make a more complex compound or product.'' Thus,
according to the commenter, it should qualify under the statute as an
ingredient and that no program advantage or disadvantage is provided by
excluding it. In addition, with respect to forestry materials, and in
light of the stated goal of advancing rural domestic economic activity
through the program, the commenter recommended that USDA reference the
categories of forestry sources identified in ASTM D7612-10 to describe
forestry ingredients or feedstocks. The commenter stated that reference
to this ASTM standard can be useful for manufacturers seeking to
specify standards to suppliers when procuring ingredients or feedstock
for the manufacture of biobased products.
Response: For any type of material or product to be ``designated''
for a procurement preference, there must exist at least two competing
versions of that material or product (so that the biobased material may
be preferred). In the case of the BioPreferred program, the two
competing versions are almost always one that is composed of, or
derived from, petroleum-based material and another version in which a
substantial percentage of the petroleum-based ingredient is replaced by
an ingredient made from renewable biomass. The designation process
results in the requirement that Federal agencies give a preference to
the competing product made from renewable biomass. In the view of the
BioPreferred program, then, a biobased product is generally an
alternative to a petroleum-based product that serves the same
functional purpose. It follows, therefore, that USDA would not consider
``designating for preferred procurement'' a category of products for
which there is only one ``version.'' For example, it may be possible to
produce hydraulic fluid from either crude oil or soybeans. While the
two different versions of the hydraulic fluid compete in the
marketplace and hydraulic fluid could be ``designated'' to give a
procurement preference to the soybean-derived version, the crude oil
and the soybeans do not directly compete with each other within the
marketplace and neither would be ``designated'' by the BioPreferred
program. Likewise, USDA does not believe that a bale of cotton or a log
are items that should be designated for preferred procurement. However,
once the barrel of crude oil or the bale of cotton or the log undergo
various processing steps, the resulting materials enter the marketplace
as intermediate ingredients or feedstocks and compete for selection as
the building blocks for the manufacture of consumer-use products. The
biobased version of these competing intermediate ingredients or
feedstocks would then be candidates for designation, as would the
finished products manufactured from them. USDA recognizes and agrees
that the number and extent of the ``processing steps'' can vary
depending on what the raw materials and the finished products are.
However, USDA continues to believe that the definition of an
intermediate ingredient or feedstock should exclude harvested
commodities such as raw cotton, soybeans, and logs.
USDA also notes that, in response to the Agricultural Act of 2014,
it will make additional revisions to the Guidelines in subsequent
rulemaking.
C. 7 CFR 3201.3--Applicability to Federal procurements; and 7 CFR
3201.4--Procurement programs.
No comments were received on the revisions proposed for these
sections.
D. 7 CFR 3201.5--Category designation.
Comment: One commenter questioned whether setting a minimum
biobased content for each intermediate ingredient or feedstock category
is needed. The commenter stated that what is most critical is the total
biobased content of the product in which the intermediate ingredient or
feedstock is used.
The commenter stated that the FCEA requires that a minimum biobased
content be established to designate intermediate ingredients and
feedstocks and that the FCEA further requires the USDA to automatically
designate finished 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). The commenter stated that these FCEA
requirements are then interdependent. According to the commenter, the
net effect appears to create an entirely different, and potentially
conflicting, route to finished product designation. The commenter
provided the following example; assume USDA establishes a minimum
biobased content for designated intermediate category ``polyolefin
resins'' at 50 percent. If a polyolefin has 100 percent biobased
content, then this polyolefin would be a designated intermediate. Next
consider a blend consisting of 60 percent of this designated polyolefin
intermediate with 40 percent of fossil-based polyolefin. Finished
products made with the blend would be ``automatically designated''
because the blend contains at least 50 percent of a designated
intermediate. Now suppose a manufacturer of non-woven fabrics makes
``erosion control materials'' of this blend--these products would be
automatically designated based on the proposal in this Federal Register
notice. The commenter next stated that the minimum biobased content for
``Erosion Control Materials'' was established as 77 percent. The
commenter stated that the current proposal would automatically
designate and allow a product with 60 percent biobased content to be
designated even though it is below the 77 percent minimum content
required for finished product designation of ``erosion control
materials.''
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Another commenter also disagreed with the concept of ``automatic
designation'' for finished products, agreeing with the first commenter
that this represents a separate and potentially conflicting route to
designation of finished products. The commenter provided, as another
example, a finished product formulated with 50 percent of a designated
biobased intermediate, said intermediate having 20 percent biobased
content, then the net biobased content of the finished product is only
10 percent. The commenter stated that this is well below the minimum
biobased content established for many of the product categories. The
commenter recommended that all finished products be subject to the
minimum biobased content established for the relevant product category.
The commenter stated that there should not be an alternative
``automatic designation'' process, as such an alternative process would
merely cause confusion and potentially harm the credibility of the
BioPreferred program.
The first commenter recommended a more streamlined approach for the
USDA to simply ``approve'' biobased intermediates which meet the
following criteria: (a) They have ``undergone significant value-adding
processing,'' and (b) the biobased content is quantitatively reported
with adequate supporting data. The commenter further recommended that
the biobased content is reported and has supporting documentation
(i.e., ASTM D6866). The commenter stated that it is reasonable for the
supplier of these intermediate ingredients and feedstocks to be
responsible for applying for and obtaining designation for these
materials. Then the finished product manufacturers could calculate and
report their biobased content as described elsewhere in the proposal.
The commenter acknowledged the challenges of changing the
requirements of the FCEA but stated that the BioPreferred program may
want to wait until the FCEA requirements have been amended, and then
launch a more streamlined and consistent method of handling
intermediates, rather than launch a potentially flawed method now.
Lastly, the commenter stated that the FCEA requires use of the
terminology ``designate'' with respect to intermediate ingredients and
feedstocks. However the commenter stated that use of this term is
confusing because the BioPreferred program also ``designates'' finished
products that are directly available for Federal procurement. To avoid
confusion, the commenter recommended that USDA may want to consider use
of alternative terminology, such as ``approved.''
Response: The commenter questioned the need to set minimum biobased
contents for intermediate ingredients or feedstocks but then,
correctly, pointed out that the FCEA specifies that USDA set such
minimum contents. USDA intends to continue to evaluate and establish
the minimum biobased content for each designated product category on a
case-by-case basis.
USDA evaluated the commenter's statements that the current
requirements of the FCEA create potentially conflicting routes to
finished product designation and believes that such conflicts can be
avoided. USDA has always considered that the term ``designated''
applies to a generic grouping of biobased products that is eligible for
the procurement preference. Thus, individual products are not
designated and are not eligible for the procurement preference unless
they meet the definition of (and, therefore, are included within) a
designated product category. When setting the minimum biobased content
for a designated product category, USDA typically considers the
biobased content of several representative products that fall within
the product category and selects the level found to be appropriate. The
selected minimum level is usually not based on the lowest or the
highest biobased content among the products. Rather, the selected
minimum is considered typical of products within the category. USDA
expects this same process to be followed when designating finished
products made from designated intermediate ingredients or feedstocks.
Thus, individual finished products will be required to meet the minimum
biobased content that is established for whatever product category the
product falls within.
With regard to the commenter's example of a polyolefin resin, if
such an intermediate ingredient or feedstock material were designated,
USDA would investigate and consider for designation those finished
product categories (not individual products) that could be made from
the intermediate. If the intermediate ingredient were used by a
manufacturer of erosion control materials, the applicable minimum
biobased content for the product would still be 77 percent because that
product category has already been designated and there are individual
products available that meet the 77 percent. The product described by
the commenter would fall into the designated product category of
``erosion control materials'' but would not be eligible for preferred
procurement. The final rule has been revised to clarify that when final
products made from intermediate ingredients fall within an existing
designated product category, those products are subject to the minimum
biobased content and other established criteria for the applicable
product category.
If, on the other hand, a manufacturer used the designated
polyolefin intermediate to manufacture a product that does not fall
into an already-designated product category, USDA would move to
designate a new product category based on that product and that
product's biobased content (along with the biobased content of other
products that fall within the new designated product category) would be
considered when setting the minimum biobased content for the new
designated product category.
Response: USDA points out that the use of the term ``designate'' is
consistent with the language in the FCEA. In addition, once an
intermediate ingredient or feedstock category is designated by
rulemaking, Federal agencies would have the same legal obligation to
purchase the biobased version of products within the category as they
do when purchasing products within designated finished product
categories. USDA acknowledges that such purchases of designated
intermediate ingredients or feedstocks by Federal agencies may rarely
occur, but the obligation to give a preference to the biobased version
of these materials, if they are ever purchased, would still apply.
Comment: One commenter expressed concern about how USDA will
determine what is a ``generic grouping'' under the proposed definition
of ``designated intermediate ingredient or feedstock category.'' The
commenter stated that groupings could be broad, such as vegetable oils,
fibers, resins, polymers, polyols, polyesters, etc., or the groupings
could be more narrow such as soybean oil (including crude, refined,
deodorized, epoxidized). The commenter further stated that it is
critical that USDA seek extensive industry input on how best to define
``generic groupings'' prior to proposing categories for designation.
Groupings should take into account the chemical structure of a material
or compound as well as functionality and end-use applications. The
commenter recommended that USDA establish a process through its Web
site and stakeholder meetings to solicit nominations for intermediate
ingredients and feedstocks that should be considered for designation
prior to
[[Page 44647]]
issuing proposed rulemakings. This would allow USDA to view the range
of commercially available biobased intermediate ingredients and
feedstocks and sort them by chemical class, functionality, and end use
application to best determine how to establish ``groupings'' for the
purpose of designations. The commenter stated that USDA should remain
flexible about how narrow or broad to make the ``groupings'' until it
has solicited and carefully evaluated information from industry
stakeholders. The commenter also stated that USDA should establish a
process whereby final product categories not designated as part of the
initial intermediate ingredient and feedstock rulemaking have the
opportunity to petition for inclusion at a later date.
Response: USDA appreciates the commenter's recommendations and
agrees that extensive industry input will be critical for the success
of the program. USDA believes that the BioPreferred Program Guidelines,
as being finalized in this rulemaking, establishes a framework whereby
USDA can work in conjunction with stakeholders to implement the
requirements of the FCEA.
Comment: One commenter acknowledged that the USDA will establish a
minimum biobased content for each intermediate category, entirely
analogous to how it establishes a minimum biobased content for each
finished product category. The commenter then pointed out that this
could effectively double the effort needed to manage the BioPreferred
program, with minimal benefit. Rather, the commenter recommended that
the USDA establish one minimum biobased content for all ingredients and
feedstocks. This universal minimum should be high enough to be
meaningful, to represent a real technical advance. The commenter stated
that it is obviously more challenging to make biobased some classes of
materials as compared with others, so the minimum should not be so high
as to rule out many deserving materials in these more challenging
areas. The commenter recommended that a universal minimum biobased
content of 20 percent strikes the right balance.
Response: USDA disagrees with the concept of setting a
``universal'' minimum biobased content. Setting the minimum biobased
content of categories on a case-by-case basis, as has been done since
the program began, allows flexibility to address both those categories
that can be formulated with very high biobased contents and the ``more
challenging'' areas mentioned by the commenter. USDA believes there are
numerous intermediate categories where the commenter's recommended 20
percent minimum biobased content would be significantly below what is
achievable.
Comment: One commenter stated that limits of certain performance
applications or compliance with federal specifications in some end-use
applications may not allow for the final product to contain 50 percent
of the biobased material. This lower limit should be considered case by
case.
Response: As discussed in the previous response, USDA expects that
minimum biobased content requirements will continue to be set on a
case-by-case basis as they have in the past by considering the
availability, performance, and cost of representative products within
each product category being evaluated for designation.
Comment: USDA received numerous comments on the proposed revision
to replace the ``mature market'' exclusion in paragraph 3201.5(c)(2)
with language proposed to be added as a new paragraph (b)(2) stating
USDA's intention to ``designate for preferred procurement those product
categories and intermediate ingredient or feedstock categories that are
determined to create new and emerging markets for biobased material.''
Some of the comments were in agreement with the proposal, but most
opposed both the original language in the paragraph and the proposed
revision. The consensus among those opposed to either the original
paragraph 3201.5(c)(2) or the text proposed to be added as paragraph
(b)(2) is that the date of entry into the marketplace and extent of
national market penetration should not be a factor in determining
whether a product category is designated for preferred procurement.
Response: The Agricultural Act of 2014, signed by the President on
February 7, 2014, includes new provisions that effectively remove both
the ``mature markets'' and the proposed ``new and emerging markets''
considerations when designating product categories and intermediate
ingredient or feedstock categories. USDA has decided that in this final
rule the proposed new language for paragraph 3201.5(b)(2) will be
dropped and the paragraph will be reserved. USDA is today announcing
its intention to develop rulemaking actions to propose and promulgate
another final rule amending the Guidelines to incorporate the
appropriate new language into paragraph 3201.5(b)(2).
Comment: One commenter stated that the deletion of the mature
markets exclusion from 3201.5(c)(2) must be carried into the USDA
Voluntary Labeling Program. The authorizing statute requires USDA to
maintain consistency between the two programs.
Response: As discussed in the response to the previous comment, the
Agricultural Act of 2014 removed the exclusion of products that are
considered to be mature market products. USDA intends to proceed with
two new rulemaking activities in response to the provisions of the
Agricultural Act of 2014; one proposing additional amendments to the
Guidelines and one proposing corresponding amendments to the voluntary
labeling rule.
Comment: One commenter stated that the current proposed rule does
not fit the needs or technical requirements for the automotive sector.
The commenter stated that the fundamental equation proposed for
determining biobased content in automobiles will not work for vehicles
as the denominator cannot be standardized and will not remain a fixed
number. The commenter also stated that there are further deficiencies
in the proposal with lack of definitions for key terms and concepts.
The commenter stated that the proposed use of the ASTM method for
determining biobased content is not practical for the automotive
applications. The commenter concluded that it is not clear what
alternative proposals might look like given the lack of definition and
uncertainty of technical criteria, the rapid changes in automotive
materials technologies, feedstocks, sources, availability of materials,
and infrastructure to manage the materials.
Response: USDA agrees with the commenter that the designation of
product categories within the automotive industry will be difficult.
USDA also agrees that at this stage in the evolution of the
BioPreferred program the designation of an automobile as a complex
assembly would be extremely difficult. USDA has no plans to attempt
such a designation within the immediate future. USDA expects that when
complex assemblies such as those found in the automobile industry (and
many others) are designated, case-by-case alternative equations may be
necessary. At this point in the process of considering the designation
of complex assemblies, it is not possible to anticipate all cases where
an exception to the generic process adopted today may be needed.
USDA does expect, however, that some automotive components, and the
biobased intermediate ingredients and feedstock used to make those
components, will be designated within the next few years. Biobased
[[Page 44648]]
intermediate ingredients that could be used to make products such as
carpets and carpet backing, upholstery fabrics or headliners, and foam
that might be used in automobile seats are expected to be evaluated for
designation soon. USDA believes that with the cooperation of the
manufacturers the designation of products such as these can be
accomplished. USDA points out that a parallel to the automobile example
would be a house or office building where components such as carpets,
plastic insulating foam, composite panels, and interior paints have
been designated by the BioPreferred program but the actual house or
office building has not.
E. 7 CFR 3201.6--Providing product information to Federal agencies.
No comments were received on the revisions proposed for this
section.
F. 7 CFR 3201.7--Determining biobased content.
Comment: One commenter stated that the proposed methodology for
determining biobased content of products based on intermediates could
use some additional requirements. Testing should still be required on
these materials to ensure the biobased content is truly what is
claimed. The testing fee for procurement is very inexpensive compared
to other certification programs and the rules that are currently in
place as far as changes in formulations and products similar to
compositions that already have certification cuts down on multiple
testing fees. Another alternative could be to develop simpler test
methods based on NMR data/IR spectra to determine the amount of a
specific biobased material in a complex mixture.
Response: While the voluntary labeling program requires independent
testing to confirm the biobased content of products for which
certification is sought, the preferred procurement program requires
only that manufacturers certify the claimed biobased content. However,
the Guidelines (at 3201.7(a)) require that manufacturers must provide
information to verify the biobased content of products offered for
preferred procurement if such verification is requested by USDA or
other Federal agencies. Section 3201.7(c) states that verification of
biobased content must be based on third party testing using ASTM D6866.
Also, as part of the designation process, USDA routinely obtains and
tests several representative products from the product categories being
designated. USDA agrees that documenting the biobased content of
intermediate ingredients or feedstocks, as well as finished products,
is critical to the success of the program. USDA plans to increase the
effort applied to confirming manufacturers' biobased content claims, as
resources allow. Also, efforts to develop alternative test methods are
continuing and USDA will consider allowing the use of an alternative
method once it has been approved by a certifying entity such as ASTM.
Comment: One commenter stated that, in the proposed rule, USDA does
not address the documentation required to support the calculated
biobased content of the finished product. The commenter stated that,
logically, the finished product manufacturer applying for designation
would disclose the full formulation to USDA, including suppliers of
these ingredients. The commenter further stated that it is reasonable
that the suppliers of ingredients would provide documentation
supporting the biobased content of that ingredient. According to the
commenter, such documentation may present a potential issue regarding
confidential business information (CBI). The commenter proposed the
following two options for consideration by USDA in cases where the
manufacturer wishes to protect CBI: (a) Including ``undisclosed
ingredients'' in the formulation--the manufacturer could not claim any
contribution toward overall biobased content from these ingredients
because the biobased content of those ingredients would not be
verifiable; and, (b) Claiming biobased content contributions from
``undisclosed ingredients''--if the manufacturer wanted to claim
contributions from such undisclosed ingredients toward overall biobased
content, the manufacturer would have the option of paying for and
having ASTM D6866 performed on the finished product itself.
Response: USDA disagrees that the submission of confidential
product formulation data would be necessary under the BioPreferred
program. Section 3201.7(a) requires that manufacturers must certify
that their product meets the minimum biobased content requirements for
the designated product category. Thus, the requirement to certify the
biobased content of a product does not involve the submission of
specific formulation data, confidential or otherwise. The section
further states that manufacturers must, upon request, provide USDA and
Federal agencies information to verify the biobased content for
products certified to qualify for preferred procurement. Section
3201.7(c) states that verification of biobased content must be based on
third party testing using ASTM D6866. Because intermediate ingredients
or feedstocks, and the finished products made from them, can be tested
using ASTM D6866, it is expected that test results would be submitted
as verification of biobased content. No specific formulation data would
be required or expected.
Comment: One commenter expressed concern about the procedure that
USDA is proposing for determining the biobased content of final
products made with intermediate ingredients and feedstocks. The
commenter stated that USDA's proposed approach is not consistent with
the statutory language. The commenter stated that the statutory
language is clear that products composed of more than 50 percent (or a
different percentage as determined by USDA) of the designated
intermediate ingredient or feedstock must be automatically designated.
The commenter stated that the statute does not direct USDA to take into
account the biobased percentage content of the designated intermediate
ingredient or feedstock when calculating the 50 percent. According to
the commenter, if a final product contains 50 percent by mass weight of
a designated intermediate ingredient or feedstock, the final product
should also be designated even if the designated intermediate
ingredient or feedstock has a biobased content of less than 100
percent. Also, if a final product contains more than one designated
intermediate ingredient or feedstock then the mass weight of each
should be added together to determine if the overall content reaches 50
percent or more. The commenter also stated that to be consistent with
the intent of the statute and the BioPreferred Program Guidelines, the
mass weight calculation should be based on organic carbon content only
and not other materials in the final product such as water or inorganic
materials.
The commenter recommended the following modification to proposed
section 3201.7 (c)(2): Final products composed of designated
intermediate ingredient or feedstock materials. The biobased content of
final products composed of designated 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, calculating the
percentage by weight (mass) that each designated intermediate
ingredient or feedstock material represents of the total organic carbon
content of the final product and
[[Page 44649]]
summing the results (if more than one designated intermediate
ingredient or feedstock is used), and dividing the resultant value by
100.
Another commenter stated that the text and equations in
3201.7(c)(2) and (3) need to be revised. The commenter stated that the
calculation should be based on the organic carbon content of the
product and provided a recommendation for a revised equation.
Response: USDA evaluated the comments and recommendations submitted
by these commenters and agrees with most of their positions. Most
significantly, USDA agrees that the equations presented in the proposed
amendments to the Guidelines should be revised so that they determine
the biobased content of complex assemblies and finished products made
from designated intermediate ingredients or feedstocks based on the
total mass of organic carbon in the components of the assembly or in
the finished product. The equations have been revised in today's final
rule.
The first commenter is correct that the statutory language in the
FCEA states that products composed of more than 50 percent of
designated intermediate ingredients or feedstocks must be automatically
designated. However, USDA believes that the current approach of
designating ``product categories'' rather than individual products is
appropriate even when finished products are made from intermediate
ingredients that have been designated. The designation of product
categories that include these finished products involves multiple
steps. These steps are shown in Figure 1 and are discussed in the
paragraphs that follow Figure 1.
BILLING CODE 3410-TX-P
[[Page 44650]]
[GRAPHIC] [TIFF OMITTED] TR01AU14.000
First, at the time that an intermediate ingredient or feedstock
category is selected for designation, the categories of finished
products that are made from the intermediate ingredients or feedstocks
will be identified. The list of product categories that is developed
will then be compared to the list of previously designated product
categories. For those individual products that fall within a product
category that has already been designated, the applicable minimum
biobased content to qualify for preferred procurement is the minimum
specified for the product category in subpart B of section 3201. Those
individual products that do not fall within an existing
[[Page 44651]]
designated product category will be investigated to determine whether
their formulation includes more than 50 percent \1\ of the intermediate
ingredients or feedstocks selected for designation. If the products
contain more than 50 percent \1\ of the selected intermediates, USDA
will proceed with ``auto-designating'' a new product category based on
the products evaluated. If new product categories are needed, USDA will
gather information on as many individual products from within the new
product category as possible. Biobased content information from the
testing of individual products (using ASTM D6866) will be evaluated and
a minimum biobased content set for the new product category. Then,
after the designation of the new product category (based on products
composed of more than 50 percent designated intermediate ingredients),
manufacturers can determine whether their individual products qualify
for preferred procurement. They can do this by using the procedure in
the final Guidelines to determine the biobased content of their
products and comparing that to the minimum biobased content established
for the product category.
---------------------------------------------------------------------------
\1\ Or such other amount as the Secretary determines
appropriate.
---------------------------------------------------------------------------
As stated above, the equations for determining the biobased content
of complex products and finished products was revised in the final
rule. The first commenter's recommended revision to the procedure for
calculating the biobased content of finished products made from
designated intermediate ingredients was generally accepted. However, a
second sentence was added to the procedure because when determining
whether an individual finished product meets the established minimum
biobased content of a product category, biobased intermediate
ingredients that have not been designated may also be present and
should be included in the determination of the total biobased content
of the product.
Comment: One commenter stated appreciation for USDA's intent that
the biobased content of complex assemblies reflects only that portion
of the entire assembly that has the potential to be biobased. However,
the commenter expressed concerned with the use of vague terms such as
``potentially'' biobased as its use does not clarify who or what entity
will make the determination as to what is potentially biobased. The
commenter suggested that use of the term ``organic carbon'' is a more
precise and scientifically valid term to identify components which are
potentially biobased. According to the commenter, use of this term also
has the benefit of congruence with the terminology used in ASTM D6866.
The commenter expressed doubts as to whether reporting only the
percentage of organic carbon that is biobased is sufficient to drive
the desired behaviors that USDA seeks. The commenter stated that many
beneficial innovations in complex assemblies entail replacing glass,
steel, etc. with advanced polymer resins and composites. This
modification has the effect of increasing the overall organic carbon
content of the assembly, but because it increases the denominator of
the complex assembly calculation, could decrease the calculated
biobased content and be counterproductive. The commenter recommended
that two metrics be reported for complex assemblies: a) The weight
percent of the entire assembly which is organic carbon, and b) the
percentage of that organic carbon that is biobased. The commenter
stated that designation of complex assemblies should be based on some
combination of these two metrics, in such a way to incentivize
increased organic carbon content and increased percentage of that
organic carbon that is biobased.
The commenter also recommended that when determining the total
biobased content of complex assemblies, all materials that have
biobased content should be included in the calculations and not just
those materials that meet a USDA proposed minimum biobased content. The
commenter provided as an example a complex assembly that is construed
from other ``finished products'' (i.e., subassemblies) that are part of
the BioPreferred catalog and have minimum biobased content levels set
per the catalog. The commenter recommended that even if the
subassemblies do not meet the minimum biobased content per the
BioPreferred catalog, they should still be included in the calculation
as contributing to the overall biobased content. The commenter stated
that such inclusion will: (a) Provide a higher level of accuracy when
determining total biobased content of a complex assembly, and (b) be
consistent with USDA's emphasis ``to improve demand for biobased
products'' and ``to spur development of the industrial base through
value-added agricultural processing and manufacturing.''
Response: USDA agrees with several commenters who recommended using
``total organic carbon'' as the basis for determining biobased content
and has revised the procedures accordingly. This eliminates the need to
consider whether materials or components have the potential to be
biobased. USDA also agrees with the commenter that all biobased
material in a component should be included when determining the
biobased content. The calculation procedure does not distinguish
between components that ``finished products'' and those that are not,
so all biobased content in a complex assembly is counted.
Comment: One commenter stated that they are concerned about how
USDA will reliably determine which individual components ``could''
contain biobased material. The commenter urged USDA to establish a
process through its Web site as well as through stakeholder meetings to
solicit nominations for which complex assemblies should be considered
for designation and to collect available information on components that
are being made with biobased materials. In terms of components that
``could'' contain biobased materials, the commenter urged USDA to only
include components for which there are commercially available biobased
alternatives that meet relevant industry performance standards.
Response: USDA has revised the procedures to eliminate the need to
determine whether components ``could'' contain biobased material.
However, USDA agrees with the commenter that stakeholder involvement is
critical to the designation of complex assemblies. USDA expects that
there will be extensive efforts to gather information and opinions from
stakeholders. USDA also agrees that commercial availability of biobased
components that meet relevant industry performance standards is an
essential criteria that must be met.
G. 7 CFR 3201.8--Determining life cycle costs, environmental and
health benefits, and performance.
Comment: Numerous commenters provided opinions on whether, and to
what extent, life cycle analysis (LCA) requirements should be included
in the designation process for biobased products. Three commenters
stated that USDA should retain the requirement for an LCA to assure
that qualified products are appropriate for preferred procurement and
labeling. One of the commenters stated that without the LCA, USDA risks
approving products that may have detrimental qualities that the Federal
government would not want to support. The second commenter stated that
LCA requirements are critical to assure that USDA does not continue to
place products onto the BioPreferred catalogue that do not demonstrate
better environmental or health benefits than their non[hyphen]biobased
competitors. The
[[Page 44652]]
third commenter stated that LCA is necessary to provide transparency in
the USDA's evaluation of biobased content and that the assessment
provides assurance that products in the Biobased Market program
demonstrate substantial environmental benefits compared to alternative
products. The commenter noted that the USDA Forest Service supports the
use of LCA as a tool to identify materials that reduce environmental
burdens and urged OPPM to follow their lead by maintaining the LCA
requirement as part of the Biobased Market program.
One commenter recommended that USDA reconsider the ``voluntary''
approach to the development of LCA data and information. According to
the commenter, LCA information is critical to understanding the full
range of environmental impacts from product content or material
substitution. The commenter also stated that LCA data inform agencies
of the unseen or unanticipated costs and benefits from making
preference selections based solely on biobased or non-biobased content.
The commenter stated that LCA data help better inform interagency
review, and provide critical information needed by other agencies,
particularly those agencies with regulatory authority over greenhouse
gas emissions and other environmental impacts related to material
substitution. The commenter also stated that LCA data provide
benchmarked and updated data so agencies can more effectively perform
regulatory look-back. According to the commenter, the President made
clear in Executive Order 13563 (Jan. 21, 2011) that regulatory agencies
``must measure, and seek to improve, the actual results of regulatory
requirements.'' The order emphasizes the importance of retrospective
analysis of rules with a ``look back requirement,'' so the agency can,
in effect, better engage in ongoing cost-benefit analysis of the
regulation after it is promulgated. An LCA requirement is critical
because it helps provide the data and information necessary to complete
that review.
The commenter stated that, while some argue that requiring the
submission of LCA data and information is unfair or imposes additional
costs on biobased manufacturers, the FCEA and the Guidelines
acknowledge that the beneficiaries of the biobased preference are
generally expected to gain market share compared to those who do not.
The commenter supported the application of an LCA requirement on an
equal basis with respect to any Federal procurement program premised on
the notion that certain material content preferences are preferred over
others, and with respect to any supplier.
One commenter requested further clarity on LCA requirements for
``complex assembly'' biobased products. The commenter stated that it is
not clear from the proposed rulemaking whether complex assemblies will
require their own LCA, or whether LCAs for the individual components
with biobased content will suffice, for example. The commenter
recommended further guidelines for complex assemblies be published in
the Federal Register for public comment. The commenter further stated
that harmonization and alignment of product carbon footprint (PCF)
standards need to be developed. The commenter stated that several
standards (ISO 14067, GHG protocol, and PAS 2050) are being developed
in parallel and that it is important that their approach and principles
be consistent with one another and with generally accepted LCA
guidance, such as ISO 14040/14044, and the International Reference Life
Cycle Data System (ILCD) handbook. The commenter stated that
discrepancies between PCF and LCA methods will cause confusion, waste
resources and hinder the acceptance of PCF results.
One commenter stated that the inclusion of LCA considerations would
provide additional information to the BioPreferred program, but that it
also would add enormous complexity and cost to participating companies.
The commenter stated that the type of LCA needed will vary depending
upon whether the item being studied is an intermediate or a finished
product as well as what end-of-life options are possible. Currently,
ample industry forces are driving toward reduced environmental impact,
and many manufacturers are voluntarily conducting LCAs to augment their
marketing messaging. The commenter recommended that the USDA not codify
LCA requirements into the BioPreferred program but, rather,
incorporation of this information should be voluntary.
One commenter stated that the BioPreferred program should encourage
the development of LCAs using ASTM/ISO methodology but not mandate or
require it for procurement. The commenter stated that it is a useful
tool to document continual environmental process improvements but that
an LCA alone is not a sufficient tool to tell you if a product is on
its way to being sustainable. The commenter explained that the
fundamental value of biobased plastics arises from using biomass carbon
feedstock in place of petro-fossil carbon feedstock.
One commenter stated that it is important that USDA consider the
burden that providing life cycle information may place on suppliers of
finished products. The commenter stated that it is reasonable that the
suppliers of ingredients and feedstocks provide LCA information and
data, while finished product suppliers might do so on a voluntary basis
where it is reasonable to do so.
The commenter stated that information about costs over the full
life cycle (including operating costs and environmental impacts) is an
important consideration. The commenter stated that a UNEP/SETAC
publication notes the role of such data in procurement decisions:
``[L]ife cycle costing as a technique to calculate and manage costs,
especially for large investments has been used to support decision-
makers in procurement for decades. . .''. The commenter stated that
cost information is needed to verify that the qualifications for
procurement awards have been met and may confirm whether the qualified
biobased product is reasonably priced in comparison. The commenter
further stated that the Guidelines should also encourage the
preparation of the potential cost impacts of material substitution that
could result from the procurement preference, including an analysis of
commodity price trends.
Response: In the original Guidelines, manufacturers were required,
under section 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 agency. In the 2008 Farm Bill,
Congress included language stating the Federal agencies could not, as a
condition of purchase of a biobased product, require manufacturers or
vendors of biobased products to provide to procuring agencies more data
than would be required to be provided by other manufacturers or vendors
offering products for sale. As a result of this language in the 2008
Farm Bill, USDA previously amended section 3201.8 (76 FR 6322) to
eliminate this requirement. While Federal agencies may no longer
require such information from manufacturers of biobased products, USDA
believes that information from LCA developed using industry-accepted
approaches, such as the ASTM D7075 standard or the BEES analytical
tool, will be valuable in the marketing of biobased products. USDA also
believes that the availability of LCA information may be valuable in
Federal procurements that take into account human health,
environmental, or
[[Page 44653]]
disposal considerations in the product selection process. Therefore,
while USDA does not have the authority to require LCA data, USDA has,
in today's final rule, added the proposed 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.
Comment: One commenter stated concern that the term ``relative
price'' in section 3201.8 is an entirely new concept and that the term
suggests that a government agency has the authority to use the data to
adjust the market, negotiated, or contracted price of a product to a
``relative price.'' The commenter stated that the use of the term is
inappropriate, problematic, and confusing and that USDA should retain
the original wording of this section (``determining life cycle costs,
environmental and health benefits, and performance'').
Response: USDA agrees with the commenter that the term ``relative
price'' is not appropriate in this situation. USDA does believe,
however, that providing some information on the price of products is
useful to purchasers as they consider whether biobased products meet
their purchasing criteria. USDA still encourages manufacturers to
provide information to prospective buyers on the price of their
products, either on the BioPreferred Web site or in their marketing
material. In the final rule, USDA has dropped the word ``relative''
from the title of section 3201.8 and from the text within the section.
H. 7 CFR 3201.9--Funding for testing.
No comments were received on the revisions proposed for this
section.
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 final rule amends 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 this final 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.
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 the provisions of the statute.
Although today's final rule establishes procedures for designating
qualified 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 final rule itself does not have a direct significant
economic impact on a substantial number of small entities. This rule
directly affects Federal agencies, which are 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 that 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
[[Page 44654]]
designation. This rule does not designate any product categories.
C. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This final 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 have implications for these rights.
D. Executive Order 12988: Civil Justice Reform
This final rule has been reviewed in accordance with Executive
Order 12988, Civil Justice Reform. This rule does not preempt State or
local laws, is not intended to have retroactive effect, and does not
involve administrative appeals.
E. Executive Order 13132: Federalism
This final rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment. The provisions of
this rule do 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 final 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
This final rule has been reviewed in accordance with the
requirements of Executive Order 13175, Consultation and Coordination
with Indian Tribal Governments. The review reveals that this proposed
regulation will not have substantial and direct effects on Tribal
governments and will not have significant Tribal implications.
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.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, that includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. USDA has submitted a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register.
List of Subjects in 7 CFR Part 3201
Biobased products, Procurement.
For the reasons stated in the preamble, the Department of
Agriculture is amending 7 CFR chapter XXXII as follows:
Chapter XXXII--Office of Procurement and Property Management
PART 3201--GUIDELINES FOR DESIGNATING BIOBASED PRODUCTS FOR FEDERAL
PROCUREMENT
0
1. The authority citation for part 3201 continues to read as follows:
Authority: 7 U.S.C. 8102.
0
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 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 D6866, and for designating complex
assembly product categories.
0
3. Section 3201.2 is amended by:
0
a. Revising the definitions of ``BEES'' and ``Biobased product'';
0
b. Adding, in alphabetical order, definitions for ``Complex assembly''
and ``Designated intermediate ingredient or feedstock category'';
0
c. Removing the definition of ``Designated item'';
0
d. Adding, in alphabetical order, definitions for ``Designated product
category'' and ``Intermediate ingredient or feedstock'';
0
e. Revising the definition of ``Procuring agency''; and
0
f. Adding, in alphabetical order, definitions for ``Qualified biobased
product'' and ``Relevant stakeholder''.
The revisions and additions 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
[[Page 44655]]
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 comprising more than 50 percent
(or another amount as specified in subpart B of this part) 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 value added
processing (including thermal, chemical, biological, or a significant
amount of mechanical processing), 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.
* * * * *
Qualified 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.
* * * * *
0
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 qualified 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
qualified 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 qualified
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.
* * * * *
0
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
July 31, 2015, each Federal agency shall develop a procurement program
which will assure that qualified 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 qualified 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 qualified 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 qualified
biobased products is consistent with section 9002 of FSRIA and the
requirements of the 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 section 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 qualified biobased products,
consistent with the guidelines in this part. USDA will specify the
allowable time frame in each designation rule. The biobased content of
qualified 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 qualified
biobased products that qualify because they are made from materials
within designated intermediate ingredient or feedstock categories may
also vary significantly. In procuring qualified biobased products, the
percentage of biobased content should be maximized, consistent with
achieving the desired performance for the product.
0
6. Section 3201.5 is revised to read as follows:
Sec. 3201.5 Category designation.
(a) Procedure. Designated product categories, designated
intermediate ingredient or feedstock categories, and designated final
product categories composed of qualifying intermediate ingredients or
feedstocks are listed in subpart B of this part.
[[Page 44656]]
(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 fall within
existing designated product categories will be subject to the minimum
biobased content requirements for those product categories, as
specified in subpart B of this part. New product categories 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 product categories 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 product categories, 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 product categories 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 product categories
will also be added to subpart B of this part. Once these final product
categories 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 qualified biobased products and the economic and
technological feasibility of using such products, including price. USDA
will gather information on individual qualified biobased products
within a category and extrapolate that information to the category
level for consideration in designating categories.
(2) [Reserved]
(c) Exclusions. Motor vehicle fuels, heating oil, and electricity
are excluded by statute from this program.
0
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 qualified 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, 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 American
Petroleum Institute. USDA encourages stakeholders to submit information
on other possible testing resources to the BioPreferred program for
inclusion.
* * * * *
0
8. Section 3201.7 is revised to read as follows:
Sec. 3201.7 Determining biobased content.
(a) Certification requirements. For any qualified 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 qualified 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 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 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 a percent of the weight (mass) of the total
organic carbon in the product or material.
(2) Final products composed of designated intermediate ingredient
or feedstock materials. The biobased content of final products composed
of designated intermediate ingredient or feedstock materials will be
determined by calculating the percentage by weight (mass) that the
biobased component of each designated intermediate ingredient or
feedstock material represents of the total organic carbon content of
the final
[[Page 44657]]
product and summing the results (if more than one designated
intermediate ingredient or feedstock is used). If the final product
also contains biobased content from intermediate ingredient or
feedstock material that is not designated, the percentage by weight
that these biobased ingredients represent of the total organic carbon
content should be included in the calculation.
(3) Complex assemblies. The biobased content of a complex assembly
product, where the product has ``n'' components whose biobased and
organic carbon content can be experimentally determined, will be
calculated using the following equation:
[GRAPHIC] [TIFF OMITTED] TR01AU14.001
Where:
Mi = mass of the nth component
BCCi = biobased carbon content of the nth component (%)
OCCi = organic carbon content of the nth component (%)
(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.
0
9. Section 3201.8 is amended by revising the section heading and by
revising paragraphs (a) and (b) to read as follows:
Sec. 3201.8 Determining price, environmental and health benefits, and
performance.
(a) Providing information on price and environmental and health
benefits. Federal agencies may not require manufacturers or vendors of
qualified 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 the
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
qualified 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 [Removed and Reserved]
0
10. Remove and reserve Sec. 3201.9.
Subpart B--Designated Product Categories and Intermediate
Ingredients or Feedstocks
0
11. Revise the heading to subpart B to read as set forth above.
Dated: July 21, 2014.
Gregory L. Parham,
Assistant Secretary for Administration, U.S. Department of Agriculture.
[FR Doc. 2014-18031 Filed 7-31-14; 8:45 am]
BILLING CODE 3410-TX-P