80 FR 34023 - Guidelines for Designating Biobased Products for Federal Procurement

DEPARTMENT OF AGRICULTURE
Office of Procurement and Property Management

Federal Register Volume 80, Issue 114 (June 15, 2015)

Page Range		34023-34030
FR Document		2015-14418

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 went into effect when the Agricultural Act of 2014 (the 2014 Farm Bill) was signed into law on February 7, 2014.

Federal Register, Volume 80 Issue 114 (Monday, June 15, 2015)

[Federal Register Volume 80, Number 114 (Monday, June 15, 2015)]
[Rules and Regulations]
[Pages 34023-34030]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-14418]

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Federal Register / Vol. 80, No. 114 / Monday, June 15, 2015 / Rules
and Regulations

[[Page 34023]]

DEPARTMENT OF AGRICULTURE

Office of Procurement and Property Management

7 CFR Part 3201

RIN 0599-AA23

Guidelines for Designating Biobased Products for Federal
Procurement

AGENCY: Office of Procurement and Property Management, USDA.

ACTION: Final rule.

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

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 went into
effect when the Agricultural Act of 2014 (the 2014 Farm Bill) was
signed into law on February 7, 2014.

DATES: This rule is effective July 15, 2015.

FOR FURTHER INFORMATION CONTACT: Ron Buckhalt, USDA, Office of
Procurement and Property Management, Room 361, Reporters Building, 300
7th St. SW., Washington, DC 20024; email:
BioPreferred_Support@amecfw.com; 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. Executive Summary
II. Authority
III. Background
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. Executive Summary

USDA is amending 7 CFR part 3201 to incorporate statutory changes
to section 9002 of the Farm Security and Rural Investment Act made by
enactment of the Agricultural Act of 2014 on February 7, 2014.

A. Summary of Major Provisions of the Final Rule

1. Revisions to the BioPreferred Program Definitions
USDA is amending 7 CFR 3201.2 by revising one definition and adding
two new definitions for terms that are used in the Guidelines as a
result of revisions to section 9002 made by the 2014 Farm Bill. USDA is
revising the definition of ``biobased product'' to state that the term
includes forest products that meet biobased content requirements,
notwithstanding the market share the product holds, the age of the
product, or whether the market for the product is new or emerging.
USDA is adding definitions for the terms ``forest product'' and
``renewable chemical.'' These terms were defined in the text of the
2014 Farm Bill and USDA is proposing to add them verbatim to the
BioPreferred Program Guidelines.
USDA is also deleting the current definition of ``forestry
materials'' from section 3201.2. USDA is deleting the existing
definition of the term ``forestry materials'' because the newly defined
term ``forest product'' is more appropriate and, thus, will generally
replace the existing term.
2. Addition of Reporting Requirements
USDA is also adding a new paragraph (b)(1)(iv) to section 3201.4 to
require federal agencies to report the quantities and types of biobased
products purchased. This new paragraph responds to specific language
included in the 2014 Farm Bill and is intended to provide a means by
which the effectiveness of the BioPreferred Program can be measured.
3. Addition of Targeted, Biobased-Only Purchasing Requirement
USDA is also adding a new paragraph (b)(4) to section 3201.4
``Procurement programs.'' This new paragraph adds the 2014 Farm Bill
requirement that federal procuring agencies establish a targeted
biobased-only procurement requirement under which the procuring agency
must issue a certain number of biobased-only contracts when the agency
is purchasing products, or purchasing services that include the use of
products, that are included in a biobased product category designated
by the Secretary.
4. Addition of Criteria for Evaluating ``Innovative Approaches''
USDA is also adding paragraphs to section 3201.5 ``Category
designation'' to expand the description of the procedures and
considerations for designating product categories, including those
product categories that were excluded from the BioPreferred Program
under the previous mature market products exclusion. The Conference
Report on the 2014 Farm Bill states: ``It is the Managers' intention
that all products in the program use innovative approaches in the
growing, harvesting, sourcing, procuring, processing, manufacturing, or
application of the biobased product.'' USDA is, therefore,
incorporating criteria to be used when evaluating whether biobased
products meet the requirement to use ``innovative approaches.''

B. Costs, Benefits, and Transfers

----------------------------------------------------------------------------------------------------------------
Type Costs Benefits Transfers
----------------------------------------------------------------------------------------------------------------
Quantitative......................... Unable to quantify at Unable to quantify at Unable to quantify at
this time. this time. this time.

[[Page 34024]]

Qualitative.......................... 1. Costs of developing Advances the objectives 1. Opens new (federal)
biobased alternative of the BioPreferred market for biobased
products. Program, as envisioned products that USDA
2. Costs to gather and by Congress in newly designates.
submit biobased developing the 2002, 2. Opportunity for
product information 2008, and 2014 Farm newly developed
for BioPreferred Web Bills. biobased products to
site. be publicized via
BioPreferred Web site.
3. Loss of market share
by manufacturers who
choose not to offer
biobased versions of
products.
----------------------------------------------------------------------------------------------------------------

II. 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 (the
2002 Farm Bill), as amended by the Food, Conservation, and Energy Act
of 2008 (the 2008 Farm Bill), and further amended by the Agricultural
Act of 2014 (the 2014 Farm Bill), 7 U.S.C. 8102. (Section 9002 of the
2002 Farm Bill, as amended by the 2008 and the 2014 Farm Bills, is
referred to in this document as ``section 9002'').

III. Background

As originally enacted, section 9002 provides for the preferred
procurement of biobased products by federal agencies. USDA proposed the
Guidelines for implementing this preferred procurement program on
December 19, 2003 (68 FR 70730-70746). The Guidelines were promulgated
on January 11, 2005 (70 FR 1792), and are contained in 7 CFR part 3201,
``Guidelines for Designating Biobased Products for Federal
Procurement.''
The Guidelines identify various procedures federal agencies are
required to follow in implementing the requirements of section 9002.
They were modeled in part on the ``Comprehensive Procurement Guidelines
for Products Containing Recovered Materials'' (40 CFR part 247), which
the Environmental Protection Agency (EPA) issued pursuant to the
Resource Conservation Recovery Act (``RCRA''), 40 U.S.C. 6962.
On June 18, 2008, the 2008 Farm Bill was signed into law. Section
9001 of the 2008 Farm Bill included several provisions that amended the
provisions of section 9002. USDA subsequently amended the Guidelines to
incorporate those provisions of the 2008 Farm Bill (79 FR 44641).
The purpose of these amendments is to further revise the Guidelines
to incorporate additional changes to section 9002 that were included in
the 2014 Farm Bill. These revisions to the Guidelines will not affect
products that have already been designated for federal procurement
preference. Any changes necessary to the existing designation status of
products will be established by future rule-makings.

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 3201.2--Definitions

USDA is finalizing the proposed definitions with no changes.

B. 7 CFR 3201.4--Procurement Programs

This section has been finalized as proposed.

C. 7 CFR 3201.5--Category designation

In the final rule, USDA added a sentence at 3201.5(b)(2) to clarify
that evidence of an innovative approach will not be restricted to only
those innovative criteria listed in the Guidelines and that
consideration of other evidence will be on a case by case basis.
USDA also revised the proposed language in paragraph (b)(2)(i) and
(ii) to add the word ``biobased'' to the description of products or
materials that qualify under the first two criteria and also added a
paragraph (b)(2)(i)(C) stating that products meet the criteria if the
biobased content of the product or material makes its composition
different from products or material used for the same historical uses
or applications.

D. 7 CFR 3201.6--Providing Product Information to Federal Agencies

This section has been finalized as proposed.

V. Discussion of Public Comments

USDA solicited comments on the proposed amendments for 60 days
ending on December 26, 2014. USDA received ten comments by that date.
One of the comments was from an individual citizen, five were from
industry trade groups, one was from a biobased product manufacturer,
one was from an academic institution, and two were from federal
agencies. 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.

A. General Comments on BioPreferred Program

Comment: Several commenters were supportive of USDA's efforts to
include innovative forestry products in the BioPreferred Program and to
encourage consumers to use biobased products. One commenter stated that
this inclusion will ``promote the use of sustainable materials,''
enhance rural and national economic development, and ``broaden the
range of products included in the definition of ``forest products'' and
``renewable chemicals.'' '' Another commenter stated generally that the
BioPreferred Program and its proposed changes are defined well.
Response: USDA appreciates the support of the commenters.

B. 7 CFR 3201.2--Definitions

Comment: One commenter agreed with USDA's proposed definitions for
``Biobased product'' and ``Forest product.'' Another commenter stated
that ``biobased-only contracts'' should be defined in the program
Guidelines and provided a possible definition.
Response: USDA thanks the commenters for their input. Regarding the
definition of ``biobased-only contracts,'' USDA's Office of Procurement
and Property Management (OPPM) will take the issue to the Interagency
Sustainable Acquisition and Materials Management Practices Workgroup
(SAMM). USDA OPPM, as part of the SAMM, will work with other agencies
to determine whether a definition of biobased-only contracts is needed.

[[Page 34025]]

Comment: One commenter stated that the definition of ``Biobased
product'' should be modified to include renewable chemicals. The
commenter stated that renewable chemicals are already included within
the existing statutory and regulatory definition, and proposed that the
regulatory definition needs to change to add ``renewable chemical'' so
that the definition includes the words ``intermediate ingredient,
renewable chemical, or feedstock.''
Response: USDA's believes that when definitions of key BioPreferred
Program terms are provided in the Farm Bill language authorizing the
Program, those definitions should be used without changes. The proposed
definition of ``biobased product'' is taken verbatim from Section 9001
of the 2014 Farm Bill. USDA agrees with the commenter that renewable
chemicals are an important segment of biobased products and is adding a
stand-alone definition of ``renewable chemical'' to the Guidelines to
clarify the inclusion of these products in the BioPreferred Program.
The definition of ``biobased product'' has not been revised, however,
and is being finalized as proposed.

C. 7 CFR 3201.4--Procurement Programs

1. 7 CFR 3201.4(b)--Federal Agency Preferred Procurement Programs
Comment: Three commenters stated that USDA should provide more
guidance for federal agencies on how to establish the proposed targeted
biobased-only procurement requirement and that USDA should specify what
information this requirement needs to include. Two of the commenters
stated that more guidance from USDA and clearer definition of
``Biobased Procurement'' would limit ``significant differences in
implementation,'' ``inconsistencies in the results of interagency
assessment,'' and ``green washing.''
One commenter asked USDA to consider several questions, such as how
it differs from other procurement programs, if it is only defined by
having FAR Clause 52.223-1 or 52.223-2 in a contract, if buying a
product with a ``Biobased symbol'' on GSA Advantage is enough, and if
it excludes ``other sustainability programs such as recycling or energy
efficiency.'' This commenter also asked for more details on
``applicability, data sources, standard data collection methods and
consistent analysis of data collected.''
Another commenter recommended that USDA work closely with the
Sustainable Acquisition and Materials Management Practices Workgroup to
provide guidance to federal agencies and their contractors on
fulfilling the new reporting requirement. The commenter stated that
this guidance should be ``implemented via a policy directive from the
Office of Management and Budget/OFPP [Office of Federal Procurement
Policy]'' such that overlapping reporting requirements and the
reporting burden on federal agencies and their contractors are reduced.
Response: USDA appreciates the comments provided by these
commenters and agrees with the commenters that communication,
coordination, and guidance will be needed to fully implement the
biobased-only contracts requirement as well as the collection and
reporting of data regarding biobased purchases. While USDA is committed
to working with federal agencies to develop and implement procedures
for complying with the requirements of the 2014 Farm Bill and the
BioPreferred Program, those efforts will be separate from the current
efforts to finalize the amendments to the Program Guidelines. USDA OPPM
will take this 2014 Farm Bill requirement for biobased-only contracts
to the interagency Sustainable Acquisition and Materials Management
Practices (SAMM) Workgroup. OPPM, as part of the SAMM, will work with
other agencies to develop guidance. Specific questions regarding how
the procurement programs should work will be addressed with Workgroup
members rather than in the context of these Guideline amendments.
2. Sec. 3201.4(b)(1)(iii)--Provisions for the Annual Review and
Monitoring of the Effectiveness of the Procurement Program
Comment: One commenter noted that this new reporting requirement
creates an additional burden on federal agencies and their contractors
because there is not an electronic means of effectively documenting
this information at ``the individual product level,'' specifying that
the Federal Procurement Data System is not designed to do so.
Another commenter stated that USDA should decide which data sources
to use for collecting the annual biobased procurement results:
``Federal Procurement Data System (FPDS), SAMM.gov, or General Services
Administration and Defense Logistics Agency.'' In addition, the
commenter indicated that USDA should issue a standard method for how
the data will be collected and analyzed and that USDA should conduct
the data review via a third-party.
A third commenter stated that for the proposed reporting
requirement to be successful, it should be ``codified in the Federal
Acquisition Regulation and a specific reporting portal (such as the
Federal Procurement Data System--Next Generation or the System for
Award Management [SAM]) should be identified for agencies'' to report
the data. This commenter urged USDA to ``take additional steps'' to
make sure that federal agencies fulfill the reporting requirement. The
commenter suggested implementing a new feature in SAM that would allow
federal agencies to report quantities and types of biobased products
that they purchased, because there is already a FAR clause in SAM that
requires prime contractors to report product types and dollar values of
biobased products that are purchased annually.
Response: USDA appreciates the comments and recommendations offered
by the commenters on the recordkeeping and reporting requirements. USDA
agrees with the commenters that communication, coordination, and
guidance will be needed to fully implement the requirements for the
collection and reporting of data regarding biobased purchases. Federal
government-wide data on biobased product purchases are entered into the
System for Award Management (SAM) by Contractors entering data into the
BioPreferred portal. This is the automated procurement system that has
officially been endorsed by the Chief Acquisition Officers Council,
OFPP and the federal government agencies. USDA OPPM is using it to
fulfill this requirement. Thus, while USDA is committed to working with
federal agencies to develop and implement procedures for complying with
the requirements of the 2014 Farm Bill and the BioPreferred Program,
those efforts will be separate from the current efforts to finalize the
amendments to the Program Guidelines.
3. Sec. 3201.4(b)(1)(iv)--Provisions for Reporting Quantities and
Types of Biobased Products Purchased by the Federal Agency
Comment: Two commenters provided feedback on what reporting data
federal agencies should provide to USDA regarding their annual
biobased-only purchases. One commenter recommended that USDA should
first establish a baseline for the rate of biobased procurement for
federal agencies and then examine this rate after each year. The same
commenter stated that after determining this baseline, USDA should work
with agencies to set an annual percentage

[[Page 34026]]

growth rate goal. Another commenter stated that the reporting
requirement should specify biobased procurement quantities in ``dollar
values.''
Response: As discussed in the response to the previous comment,
USDA appreciates the input from the commenters but does not believe
that it is appropriate to make any revisions to the proposed amendments
to the Guidelines. Federal government-wide data on biobased product
purchases are entered into the System for Award Management (SAM) by
Contractors entering data into the BioPreferred portal. This is the
automated procurement system that has officially been endorsed by the
Chief Acquisition Officers Council, OFPP and the federal government
agencies. USDA OPPM is using it to fulfill this requirement. There will
be an amendment to the FAR requesting that FAR Clause 52.223-2 be
revised to add quantities. As presently written, it requires the
Contractor to report on product types and dollars to the SAM. USDA OPPM
will seek to amend it to add quantities.
4. Sec. 3201.4(b)(4)--Targeted Biobased-Only Procurement Requirement
Comment: Three commenters requested that USDA offer more details on
how federal agencies should establish a set number of biobased-only
contracts under this proposed requirement. One commenter inquired
whether the goal for federal agencies to meet is a set number of
contracts, a certain percentage of contracts with specific FAR clauses,
or a certain value based on a total agency spend threshold. This
commenter asked if specific service contracts should be targeted, as
well. Another commenter suggested that instead of stating in proposed
Sec. 3201.4(b)(4) that a procuring agency should issue ``a certain
number of biobased-only contracts,'' that the proposed rule should
state that the agency should issue ``a minimum of 20'' biobased
contracts ``annually, unless a lower or higher number is justified by
market research on the availability of products.'' The same commenter
suggested adding the following sentence at the end of the proposed rule
Sec. 3201.4(b)(4), ``Each procuring agency shall report the number of
biobased-only contracts issued annually and the types and dollar values
of biobased products purchased directly under these contracts or used
by contractors in carrying out the services provided under the
contracts.'' The third commenter advised that federal agencies should
select a set amount of the current year's planned contracts to be
biobased-only based on the previous year's purchase of products and
services. The commenter also stated that, as an option, federal
agencies could select the top 10 products based on their previous
year's purchase of products and services to be biobased-only.
Response: USDA agrees with the commenters that additional guidance
will be needed to fully implement the biobased-only contracts
requirement. USDA will take this 2014 Farm Bill requirement for
biobased-only contracts to the interagency SAMM Workgroup. USDA, as
part of the SAMM, will work with other agencies to develop guidance.
While USDA is committed to working with federal agencies to develop and
implement procedures for complying with the requirements of the 2014
Farm Bill and the BioPreferred Program, those efforts will be separate
from the current efforts to finalize the amendments to the Program
Guidelines.

D. 7 CFR 3201.5--Category Designation

1. 7 CFR 3201.5(b)(2)--Innovative Approach Criteria
Comment: Three commenters expressed support for USDA for allowing
forestry and other traditional biobased products to be eligible for
participation in the BioPreferred Program. Of these three commenters,
two expressed overall support for the proposed criteria for
demonstrating innovative approaches as a means of evaluating all
biobased products that may be eligible for participation in the
BioPreferred Program. One of the commenters stated that these proposed
criteria are ``reasonable and provide companies submitting products a
clear and consistent manner to demonstrate the innovative nature of
their product'' and that they also allow manufacturers the ability to
demonstrate innovation for products that are not easily categorized in
the options that USDA outlined. The other commenter stated that these
proposed criteria ``will help expand the use of biobased products.''
The third commenter pointed out that USDA only requires reviewing
information for the proposed criterion in Sec. 3201.5(b)(2)(i) but not
for any of the others; thus, the commenter asked what information USDA
would review to ``implement'' the other proposed criteria. This
commenter also questioned whether this proposed rule would be applied
in a ``multi-plant manufacturing scenario'': would it be applied at the
product or at the manufacturing plant level, and would one plant's
compliance be sufficient for all plants?
Response: USDA thanks the commenters for their support of, and
participation in, the BioPreferred Program. In response to the one
commenter's questions, the text that was proposed and is being
finalized for paragraph (b)(2) identifies the criteria that USDA will
use to determine a product's eligibility to participate in the Program.
USDA has specified in the text that product manufacturers may be asked
to provide documentation to verify their claims that they are meeting
any one of the criteria. Submitting an EPD is one of the means
available for manufacturers to demonstrate that their biobased products
meet the ``innovative approach'' criteria. Various other types of
documentation are also acceptable. In evaluating whether the criteria
have been met, USDA will work with manufacturers on a case by case
basis to determine the most appropriate documentation. Also, USDA
review of information to determine eligibility to participate in the
BioPreferred Program is product specific, but is independent of the
actual manufacturing plant in which the product is produced. That is,
if a manufacturer produces product A in two different locations and the
product is otherwise identical, the manufacturer only has to apply for
registration of their product once.
Comment: One commenter stated that the proposed rule in Sec.
3201.5(b)(2) is unclear and asked if it should it be read with the
current rule in Sec. 3201.5(b)(1) or if it would be ``used
independently to designate products.'' This commenter stated that the
2014 Farm Bill wording ``implies the latter,'' while the proposed rule
``implies the former.'' The commenter stated that a ``federal
preference program'' should not endorse products on the grounds that
they contain biobased ingredients and that they are ``new and
different'' from the way products were manufactured historically
instead of considering whether the products are better for the
environment and human health, or perform better than those that are
currently available. Additionally, this commenter recommended that USDA
apply these proposed criteria in a manner such that federal agencies
are not required to choose between a ``biobased product that does not
meet other federal purchasing requirements such as less-ozone-
depleting'' and a non-biobased product that meets these requirements
within a particular product category when making purchasing decisions.
This commenter was also concerned that the proposed criteria Sec.
3201.5(b)(2) would ``expand the reach'' of the BioPreferred Program
``beyond what was originally intended.'' The commenter recommended that
the proposed criterion for an Environmental

[[Page 34027]]

Product Declaration (EPD) should merely supplement the product's
participation in the BioPreferred Program, instead of being a
requirement for it.
Response: The amendments that were proposed and are being finalized
by this final rule revise paragraph (b)(2) but do not change existing
paragraph (b)(1). Paragraph (b)(1) states that USDA will establish a
minimum biobased content for designated product categories and that the
product categories will be listed in subpart B of part 3201. While USDA
understands the commenter's position regarding consideration of
environment and human health impacts, the statutory requirements of the
2002 Farm Bill, as amended in the 2008 and 2014 Farm Bills, mandate
that the BioPreferred Program promote and give a preference to the
purchase of biobased products. USDA does not have the authority nor the
resources to evaluate the life cycle environmental and human health
impacts of biobased products compared to those of traditional petroleum
based products. USDA does present manufacturer-supplied information
regarding the performance of products in cases where the manufacturer
provides such information. However, as with life cycle impacts, USDA
does not have the statutory authority or the resources to independently
investigate the performance of products that participate in the
Program.
Comment: One commenter expressed concern that the paragraph in
Sec. 3201.5(b)(2) was written specifically for forestry products,
which could cause issues for non-forestry ones. Thus, the commenter
suggested clarifying the introductory paragraph in Sec. 3201.5(b)(2)
by adding the word ``biobased'' in front of ``product'' and
``products.'' The commenter also suggested clarifying Sec.
3201.5(b)(2)(i) and (ii) to read:

(i) Product composition and applications. (A) The biobased
product or material is used or applied in applications that differ
from historical applications; (B) The biobased product or material
is grown, harvested, manufactured, processed, sourced, or applied in
other innovative ways.; or (C) The biobased content of the product
or material makes its composition different from products used for
the same historical uses or applications.
(ii) Manufacturing and processing. (A) The biobased product or
material is manufactured or processed using renewable, biomass
energy or using technology that is demonstrated to increase energy
efficiency or reduce reliance on fossil fuel based energy sources;
or (B) The biobased product or material is manufactured or processed
with technologies that ensure high feedstock material recovery and
use; or (C) The product or material is manufactured or processed in
a way that adds biobased content.

Two additional commenters supported USDA in designating
intermediate chemical categories according to ``functional use''
because it ``offers transparent linkage to the established finished
product categories of the Program, as well as recognizing their
functional importance in the BioPreferred value chain.'' Each commenter
provided the same list of ``priority'' intermediate chemical categories
based upon functional use.
Response: USDA agrees with the commenter that certain edits to the
proposed language add clarity to the rule and, thus, will revise the
proposed language for the final rule. However, USDA disagrees with the
commenter's recommendation to include the statement that the
manufacturing and processing criteria should be revised to specifically
include processes that ``add biobased content.'' Many biobased products
are made by replacing petroleum-based components of traditional
products with biobased components, which could be characterized as
adding biobased content, and these products would be covered by
criterion (i)(C) in the commenter's edited paragraphs. Thus, there
would be no benefit to adding a third item to the manufacturing and
processing criterion.
2. Sec. 3201.5(b)(2)(iii)--Environmental Product Declaration
Comment: One commenter provided USDA with two examples of a Type
III EPD and noted that the EPD requires a product to meet ``Product
Category Rules.'' The commenter pointed out that this information ``may
or may not be available and would require time to develop.'' The
commenter added that the ``LCA related data'' included in the EPD will
assist in comparing products but inquired how federal agencies will use
this data. Additionally, the commenter asked if there is an advantage
to using this data as one means of defining ``biobased purchasing.''
Response: USDA points out that the proposal did not make it a
``requirement'' that a manufacturer submit an Environmental Product
Declaration (EPD) to participate in the BioPreferred Program.
Submitting an EPD is one of the means available for manufacturers to
demonstrate that their biobased products meet the ``innovative
approach'' criteria. Various other types of documentation are also
acceptable. USDA also agrees that not all manufacturers have EPDs for
their products and that the completion of an EPD can be time consuming.
The purpose of requesting documentation such as, but not limited to, an
EPD is to demonstrate that the manufacturer meet Congress' intention
that ``all products in the program use innovative approaches in the
growing, harvesting, sourcing, procuring, processing, manufacturing, or
application of the biobased product.'' Because not all manufacturers
have performed an EPD, USDA does not believe that it would be
beneficial to require this type of data in defining ``biobased
purchases'' by federal agencies. USDA's position is that purchases of
biobased products that have been accepted into the BioPreferred Program
and are, thus, listed in the Program's Biobased product catalog are
eligible to be counted as ``biobased purchases.''
3. Sec. 3201.5(b)(2)(iv)--Raw Material Sourcing
Comment: One commenter wanted USDA to take into account that a
finished wood product may be sourced domestically or globally; thus,
the commenter cautioned USDA that the criteria proposed in Sec.
3201.5(b)(2)(iv) do not ``inadvertently create a technical barrier to
trade'' and do not exclude imported wood products that were harvested
and exported legally in the U.S. and in their country of origin. This
commenter recommended that USDA recognize in the proposed rule that new
certification schemes for forestry products develop every year; as
such, the commenter encouraged USDA to include ``new legality
systems,'' for example, the Voluntary Partnership Agreements under the
European Union's Forest Law Enforcement, Governance and Trade Action
Plan as another way to demonstrate innovation. In addition, the
commenter advised USDA to be aware that the definitions for ``legal,
responsible, or certified sources'' are not applied such that
innovation in forestry management and certification are not considered.
The commenter looked forward to ``working closely with USDA'' to help
implement these rules.
Response: USDA agrees with the commenters that the proposed
innovative criteria should not be considered as an all-inclusive list.
USDA recognizes that sustainability advances are occurring worldwide
and does not intend that new and valid certifications be excluded from
consideration by the BioPreferred Program. In the final rule, USDA will
clarify that evidence of an innovative approach will not be restricted
to only those innovative criteria listed in the Guidelines and that
consideration of other evidence will be on a case-by-case basis.

[[Page 34028]]

E. 7 CFR 3201.6--Providing Product Information to Federal Agencies

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 ``non-significant
regulatory action'' under section 3(f) of Executive Order 12866.
Accordingly, the final rule was not 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 product
categories that were previously excluded from the federal procurement
preference because they were mature market products. The designation of
such products is specifically required under the Agricultural Act of
2014, which states that the Guidelines shall: ``(vi) Promote biobased
products, including forest products, that apply an innovative approach
to growing, harvesting, sourcing, procuring, processing, manufacturing,
or application of biobased products regardless of the date of entry
into the marketplace.''
2. Transfers
This rule advances the objectives of the BioPreferred Program, as
envisioned by Congress in the 2002, 2008 and 2014 Farm Bills, by
expanding the scope of products that may be considered for federal
procurement preference. The entry into the BioPreferred Program of
biobased products that were previously considered to be mature market
products will open a new federal market for biobased products that are
designated by USDA and also provides newly developed biobased products
to be publicized via the BioPreferred Web site. Thus, the rule 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 yield private benefits for businesses producing
these ingredients and feedstocks.
Simultaneously, this action could reduce demand for products that
do not receive federal procurement preference designation. Producers of
biobased products, including intermediate ingredients and feedstocks,
that are not so designated or producers of non-biobased products could
face a loss of market share within federal procurement.
3. Costs
Manufacturers of biobased products will incur the actual costs of
developing the biobased products as well as the costs to gather and
submit the biobased product information for the BioPreferred Web site.
The costs of developing and marketing new products are, in this case, a
voluntary expense if manufacturers choose to pursue a share of the
biobased product market.
Although this rule amends or establishes procedures for designating
qualifying biobased product categories, no product categories are being
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 this 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 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.

[[Page 34029]]

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 final rule
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 part 3201 as follows:

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 3201.2 is amended by:
0
a. Revising the definition of ``Biobased product'';
0
b. Removing the definition of ``Forestry materials''; and
0
c. Adding, in alphabetical order, definitions for ``Forest product''
and ``Renewable chemical''.
The revision and additions read as follows:

Sec. 3201.2 Definitions.

* * * * *
Biobased product. (1) A product determined by USDA to be a
commercial or industrial product (other than food or feed) that is:
(i) Composed, in whole or in significant part, of biological
products, including renewable domestic agricultural materials and
forestry materials; or
(ii) An intermediate ingredient or feedstock.
(2) The term ``biobased product'' includes, with respect to
forestry materials, forest products that meet biobased content
requirements, notwithstanding the market share the product holds, the
age of the product, or whether the market for the product is new or
emerging.
* * * * *
Forest product. A product made from materials derived from the
practice of forestry or the management of growing timber. The term
``forest product'' includes:
(1) Pulp, paper, paperboard, pellets, lumber, and other wood
products; and
(2) Any recycled products derived from forest materials.
* * * * *
Renewable chemical. A monomer, polymer, plastic, formulated
product, or chemical substance produced from renewable biomass.
* * * * *

0
3. Section 3201.4 is amended by revising paragraphs (b)(1)(i) through
(iii) and adding paragraphs (b)(1)(iv) and (b)(4) to read as follows:

Sec. 3201.4 Procurement programs.

* * * * *
(b) * * *
(1) * * *
(i) A preference program for purchasing qualified biobased
products;
(ii) A promotion program to promote the preference program;
(iii) Provisions for the annual review and monitoring of the
effectiveness of the procurement program; and
(iv) Provisions for reporting quantities and types of biobased
products purchased by the Federal agency.
* * * * *
(4) No later than June 15, 2016, each Federal agency shall
establish a targeted biobased-only procurement requirement under which
the procuring agency shall issue a certain number of biobased-only
contracts when the procuring agency is purchasing products, or
purchasing services that include the use of products, that are included
in a biobased product category designated by the Secretary.
* * * * *

0
4. Section 3201.5 is amended by adding paragraph (b)(2) to read as
follows:

Sec. 3201.5 Category designation.

* * * * *
(b) * * *
(2) In designating product categories and intermediate ingredient
or feedstock categories for the BioPreferred Program, USDA will
consider as eligible only those products that use innovative approaches
in the growing, harvesting, sourcing, procuring, processing,
manufacturing, or application of the biobased product. USDA will
consider products that meet one or more of the criteria in paragraphs
(b)(2)(i) through (iv) of this section to be eligible for the
BioPreferred Program. USDA will also consider other documentation of
innovative approaches in the growing, harvesting, sourcing, procuring,
processing, manufacturing, or application of biobased products on a
case-by-case basis. USDA may exclude from the BioPreferred Program any
products whose manufacturers are unable to provide USDA with the
documentation necessary to verify claims that innovative approaches are

[[Page 34030]]

used in the growing, harvesting, sourcing, procuring, processing,
manufacturing, or application of their biobased products.
(i) Product applications. (A) The biobased product or material is
used or applied in applications that differ from historical
applications; or
(B) The biobased product or material is grown, harvested,
manufactured, processed, sourced, or applied in other innovative ways;
or
(C) The biobased content of the product or material makes its
composition different from products or material used for the same
historical uses or applications.
(ii) Manufacturing and processing. (A) The biobased product or
material is manufactured or processed using renewable, biomass energy
or using technology that is demonstrated to increase energy efficiency
or reduce reliance on fossil-fuel based energy sources; or
(B) The biobased product or material is manufactured or processed
with technologies that ensure high feedstock material recovery and use.
(iii) Environmental Product Declaration. The product has a current
Environmental Product Declaration as defined by International Standard
ISO 14025, Environmental Labels and Declarations--Type III
Environmental Declarations--Principles and Procedures.
(iv) Raw material sourcing. (A) The raw material used in the
product is sourced from a Legal Source, a Responsible Source, or a
Certified Source as designated by ASTM D7612-10, Standard Practice for
Categorizing Wood and Wood-Based Products According to Their Fiber
Sources; or
(B) The raw material used in the product is 100% resourced or
recycled (such as material obtained from building deconstruction); or
(C) The raw material used in the product is from an urban
environment and is acquired as a result of activities related to a
natural disaster, land clearing, right-of-way maintenance, tree health
improvement, or public safety.
* * * * *

0
5. Section 3201.6 is amended by revising the first sentence of
paragraph (a)(1) to read as follows:

Sec. 3201.6 Providing product information to Federal agencies.

(a) * * *
(1) * * * The Web site will, as determined to be necessary by the
Secretary based on the availability of data, 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. * * *
* * * * *

Dated: June 5, 2015.
Gregory L. Parham,
Assistant Secretary for Administration, U.S. Department of Agriculture.
[FR Doc. 2015-14418 Filed 6-12-15; 8:45 am]
BILLING CODE 3410-TX-P

Federal Register / Vol. 80, No. 114 / Monday, June 15, 2015 / Rules and Regulations 34025

Comment: One commenter stated that Management Practices Workgroup to A third commenter stated that for the
the definition of ‘‘Biobased product’’ provide guidance to federal agencies proposed reporting requirement to be
should be modified to include and their contractors on fulfilling the successful, it should be ‘‘codified in the
renewable chemicals. The commenter new reporting requirement. The Federal Acquisition Regulation and a
stated that renewable chemicals are commenter stated that this guidance specific reporting portal (such as the
already included within the existing should be ‘‘implemented via a policy Federal Procurement Data System—
statutory and regulatory definition, and directive from the Office of Management Next Generation or the System for
proposed that the regulatory definition and Budget/OFPP [Office of Federal Award Management [SAM]) should be
needs to change to add ‘‘renewable Procurement Policy]’’ such that identified for agencies’’ to report the
chemical’’ so that the definition overlapping reporting requirements and data. This commenter urged USDA to
includes the words ‘‘intermediate the reporting burden on federal agencies ‘‘take additional steps’’ to make sure
ingredient, renewable chemical, or and their contractors are reduced. that federal agencies fulfill the reporting
feedstock.’’ Response: USDA appreciates the requirement. The commenter suggested
Response: USDA’s believes that when comments provided by these implementing a new feature in SAM
definitions of key BioPreferred Program commenters and agrees with the that would allow federal agencies to
terms are provided in the Farm Bill commenters that communication, report quantities and types of biobased
language authorizing the Program, those coordination, and guidance will be products that they purchased, because
definitions should be used without needed to fully implement the biobased- there is already a FAR clause in SAM
changes. The proposed definition of only contracts requirement as well as that requires prime contractors to report
‘‘biobased product’’ is taken verbatim the collection and reporting of data product types and dollar values of
from Section 9001 of the 2014 Farm Bill. regarding biobased purchases. While biobased products that are purchased
USDA agrees with the commenter that USDA is committed to working with annually.
renewable chemicals are an important federal agencies to develop and Response: USDA appreciates the
segment of biobased products and is implement procedures for complying comments and recommendations
adding a stand-alone definition of with the requirements of the 2014 Farm offered by the commenters on the
‘‘renewable chemical’’ to the Guidelines Bill and the BioPreferred Program, those recordkeeping and reporting
to clarify the inclusion of these products efforts will be separate from the current requirements. USDA agrees with the
in the BioPreferred Program. The efforts to finalize the amendments to the commenters that communication,
definition of ‘‘biobased product’’ has not Program Guidelines. USDA OPPM will coordination, and guidance will be
been revised, however, and is being take this 2014 Farm Bill requirement for needed to fully implement the
finalized as proposed. biobased-only contracts to the requirements for the collection and
interagency Sustainable Acquisition and reporting of data regarding biobased
C. 7 CFR 3201.4—Procurement Materials Management Practices purchases. Federal government-wide
Programs (SAMM) Workgroup. OPPM, as part of data on biobased product purchases are
1. 7 CFR 3201.4(b)—Federal Agency the SAMM, will work with other entered into the System for Award
Preferred Procurement Programs agencies to develop guidance. Specific Management (SAM) by Contractors
questions regarding how the entering data into the BioPreferred
Comment: Three commenters stated procurement programs should work will portal. This is the automated
that USDA should provide more be addressed with Workgroup members procurement system that has officially
guidance for federal agencies on how to rather than in the context of these been endorsed by the Chief Acquisition
establish the proposed targeted Guideline amendments. Officers Council, OFPP and the federal
biobased-only procurement requirement government agencies. USDA OPPM is
and that USDA should specify what 2. § 3201.4(b)(1)(iii)—Provisions for the
using it to fulfill this requirement. Thus,
information this requirement needs to Annual Review and Monitoring of the
while USDA is committed to working
include. Two of the commenters stated Effectiveness of the Procurement
with federal agencies to develop and
that more guidance from USDA and Program
implement procedures for complying
clearer definition of ‘‘Biobased Comment: One commenter noted that with the requirements of the 2014 Farm
Procurement’’ would limit ‘‘significant this new reporting requirement creates Bill and the BioPreferred Program, those
differences in implementation,’’ an additional burden on federal efforts will be separate from the current
‘‘inconsistencies in the results of agencies and their contractors because efforts to finalize the amendments to the
interagency assessment,’’ and ‘‘green there is not an electronic means of Program Guidelines.
washing.’’ effectively documenting this
One commenter asked USDA to information at ‘‘the individual product 3. § 3201.4(b)(1)(iv)—Provisions for
consider several questions, such as how level,’’ specifying that the Federal Reporting Quantities and Types of
it differs from other procurement Procurement Data System is not Biobased Products Purchased by the
programs, if it is only defined by having designed to do so. Federal Agency
FAR Clause 52.223–1 or 52.223–2 in a Another commenter stated that USDA Comment: Two commenters provided
contract, if buying a product with a should decide which data sources to use feedback on what reporting data federal
‘‘Biobased symbol’’ on GSA Advantage for collecting the annual biobased agencies should provide to USDA
is enough, and if it excludes ‘‘other procurement results: ‘‘Federal regarding their annual biobased-only
sustainability programs such as Procurement Data System (FPDS), purchases. One commenter
SAMM.gov, or General Services recommended that USDA should first
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recycling or energy efficiency.’’ This
commenter also asked for more details Administration and Defense Logistics establish a baseline for the rate of
on ‘‘applicability, data sources, standard Agency.’’ In addition, the commenter biobased procurement for federal
data collection methods and consistent indicated that USDA should issue a agencies and then examine this rate
analysis of data collected.’’ standard method for how the data will after each year. The same commenter
Another commenter recommended be collected and analyzed and that stated that after determining this
that USDA work closely with the USDA should conduct the data review baseline, USDA should work with
Sustainable Acquisition and Materials via a third-party. agencies to set an annual percentage

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Federal Register / Vol. 80, No. 114 / Monday, June 15, 2015 / Rules and Regulations 34027

Product Declaration (EPD) should Two additional commenters such as, but not limited to, an EPD is to
merely supplement the product’s supported USDA in designating demonstrate that the manufacturer meet
participation in the BioPreferred intermediate chemical categories Congress’ intention that ‘‘all products in
Program, instead of being a requirement according to ‘‘functional use’’ because it the program use innovative approaches
for it. ‘‘offers transparent linkage to the in the growing, harvesting, sourcing,
Response: The amendments that were established finished product categories procuring, processing, manufacturing,
proposed and are being finalized by this of the Program, as well as recognizing or application of the biobased product.’’
final rule revise paragraph (b)(2) but do their functional importance in the Because not all manufacturers have
not change existing paragraph (b)(1). BioPreferred value chain.’’ Each performed an EPD, USDA does not
Paragraph (b)(1) states that USDA will commenter provided the same list of believe that it would be beneficial to
establish a minimum biobased content ‘‘priority’’ intermediate chemical require this type of data in defining
for designated product categories and categories based upon functional use. ‘‘biobased purchases’’ by federal
that the product categories will be listed Response: USDA agrees with the agencies. USDA’s position is that
in subpart B of part 3201. While USDA commenter that certain edits to the purchases of biobased products that
understands the commenter’s position proposed language add clarity to the have been accepted into the
regarding consideration of environment rule and, thus, will revise the proposed BioPreferred Program and are, thus,
and human health impacts, the statutory language for the final rule. However, listed in the Program’s Biobased product
requirements of the 2002 Farm Bill, as USDA disagrees with the commenter’s catalog are eligible to be counted as
amended in the 2008 and 2014 Farm recommendation to include the ‘‘biobased purchases.’’
Bills, mandate that the BioPreferred statement that the manufacturing and
Program promote and give a preference processing criteria should be revised to 3. § 3201.5(b)(2)(iv)—Raw Material
to the purchase of biobased products. specifically include processes that ‘‘add Sourcing
USDA does not have the authority nor biobased content.’’ Many biobased Comment: One commenter wanted
the resources to evaluate the life cycle products are made by replacing USDA to take into account that a
environmental and human health petroleum-based components of finished wood product may be sourced
impacts of biobased products compared traditional products with biobased domestically or globally; thus, the
to those of traditional petroleum based components, which could be commenter cautioned USDA that the
products. USDA does present characterized as adding biobased criteria proposed in § 3201.5(b)(2)(iv) do
manufacturer-supplied information content, and these products would be not ‘‘inadvertently create a technical
regarding the performance of products covered by criterion (i)(C) in the barrier to trade’’ and do not exclude
in cases where the manufacturer commenter’s edited paragraphs. Thus, imported wood products that were
provides such information. However, as there would be no benefit to adding a harvested and exported legally in the
with life cycle impacts, USDA does not third item to the manufacturing and U.S. and in their country of origin. This
have the statutory authority or the processing criterion. commenter recommended that USDA
resources to independently investigate recognize in the proposed rule that new
2. § 3201.5(b)(2)(iii)—Environmental certification schemes for forestry
the performance of products that Product Declaration
participate in the Program. products develop every year; as such,
Comment: One commenter expressed Comment: One commenter provided the commenter encouraged USDA to
concern that the paragraph in USDA with two examples of a Type III include ‘‘new legality systems,’’ for
§ 3201.5(b)(2) was written specifically EPD and noted that the EPD requires a example, the Voluntary Partnership
for forestry products, which could cause product to meet ‘‘Product Category Agreements under the European
issues for non-forestry ones. Thus, the Rules.’’ The commenter pointed out that Union’s Forest Law Enforcement,
commenter suggested clarifying the this information ‘‘may or may not be Governance and Trade Action Plan as
introductory paragraph in § 3201.5(b)(2) available and would require time to another way to demonstrate innovation.
by adding the word ‘‘biobased’’ in front develop.’’ The commenter added that In addition, the commenter advised
of ‘‘product’’ and ‘‘products.’’ The the ‘‘LCA related data’’ included in the USDA to be aware that the definitions
commenter also suggested clarifying EPD will assist in comparing products for ‘‘legal, responsible, or certified
§ 3201.5(b)(2)(i) and (ii) to read: but inquired how federal agencies will sources’’ are not applied such that
use this data. Additionally, the innovation in forestry management and
(i) Product composition and applications.
(A) The biobased product or material is used
commenter asked if there is an certification are not considered. The
or applied in applications that differ from advantage to using this data as one commenter looked forward to ‘‘working
historical applications; (B) The biobased means of defining ‘‘biobased closely with USDA’’ to help implement
product or material is grown, harvested, purchasing.’’ these rules.
manufactured, processed, sourced, or applied Response: USDA points out that the Response: USDA agrees with the
in other innovative ways.; or (C) The proposal did not make it a commenters that the proposed
biobased content of the product or material ‘‘requirement’’ that a manufacturer innovative criteria should not be
makes its composition different from submit an Environmental Product considered as an all-inclusive list.
products used for the same historical uses or
applications.
Declaration (EPD) to participate in the USDA recognizes that sustainability
(ii) Manufacturing and processing. (A) The BioPreferred Program. Submitting an advances are occurring worldwide and
biobased product or material is manufactured EPD is one of the means available for does not intend that new and valid
or processed using renewable, biomass manufacturers to demonstrate that their certifications be excluded from
biobased products meet the ‘‘innovative consideration by the BioPreferred
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energy or using technology that is
demonstrated to increase energy efficiency or approach’’ criteria. Various other types Program. In the final rule, USDA will
reduce reliance on fossil fuel based energy of documentation are also acceptable. clarify that evidence of an innovative
sources; or (B) The biobased product or USDA also agrees that not all approach will not be restricted to only
material is manufactured or processed with
technologies that ensure high feedstock manufacturers have EPDs for their those innovative criteria listed in the
material recovery and use; or (C) The product products and that the completion of an Guidelines and that consideration of
or material is manufactured or processed in EPD can be time consuming. The other evidence will be on a case-by-case
a way that adds biobased content. purpose of requesting documentation basis.

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34030 Federal Register / Vol. 80, No. 114 / Monday, June 15, 2015 / Rules and Regulations

used in the growing, harvesting, public health benefits of the designated D. Executive Order 12988: Civil Justice
sourcing, procuring, processing, product categories and designated Reform
manufacturing, or application of their intermediate ingredient or feedstock E. Executive Order 13132: Federalism
F. Unfunded Mandates Reform Act of 1995
biobased products. categories. * * *
G. Executive Order 12372:
(i) Product applications. (A) The * * * * * Intergovernmental Review of Federal
biobased product or material is used or Programs
Dated: June 5, 2015.
applied in applications that differ from H. Executive Order 13175: Consultation
Gregory L. Parham,
historical applications; or and Coordination With Indian Tribal
(B) The biobased product or material Assistant Secretary for Administration, U.S. Governments
is grown, harvested, manufactured, Department of Agriculture. I. Paperwork Reduction Act
processed, sourced, or applied in other [FR Doc. 2015–14418 Filed 6–12–15; 8:45 am] J. E-Government Act Compliance
innovative ways; or BILLING CODE 3410–TX–P K. Congressional Review Act
(C) The biobased content of the I. Executive Summary
product or material makes its
DEPARTMENT OF AGRICULTURE USDA is amending 7 CFR part 3202
composition different from products or
to incorporate the statutory changes to
material used for the same historical
Office of Procurement and Property section 9002 of the Farm Security and
uses or applications.
(ii) Manufacturing and processing. (A) Management Rural Investment Act made by
enactment of the Agricultural Act of
The biobased product or material is
7 CFR Part 3202 2014 on February 7, 2014. USDA is also
manufactured or processed using
finalizing amendments that clarify the
renewable, biomass energy or using RIN 0599–AA22
rules under which the voluntary
technology that is demonstrated to
Voluntary Labeling Program for labeling program operates. The
increase energy efficiency or reduce
Biobased Products remainder of this section presents a
reliance on fossil-fuel based energy
brief summary of the amendments to the
sources; or AGENCY: Office of Procurement and
(B) The biobased product or material existing voluntary labeling program
Property Management, USDA. rules and Section IV of this preamble
is manufactured or processed with
ACTION: Final rule. presents more detailed discussions.
technologies that ensure high feedstock
material recovery and use. SUMMARY: The U.S. Department of A. Summary of Major Provisions of the
(iii) Environmental Product Agriculture (USDA) is amending its Final Rule
Declaration. The product has a current regulations concerning the Voluntary
Environmental Product Declaration as 1. Revisions to Section 3202.2
Labeling Program for Biobased Products,
defined by International Standard ISO ‘‘Definitions’’
to incorporate statutory changes to
14025, Environmental Labels and section 9002 of the Farm Security and USDA is amending 7 CFR 3202.2 by
Declarations—Type III Environmental Rural Investment Act (the 2002 Farm deleting the definitions of ‘‘BioPreferred
Declarations—Principles and Bill) that went into effect when the Product,’’ ‘‘Designated item,’’ and
Procedures. Agricultural Act of 2014 (the 2014 Farm ‘‘Mature market products.’’ USDA is
(iv) Raw material sourcing. (A) The Bill) was signed into law on February 7, also revising the definitions of
raw material used in the product is 2014. ‘‘Biobased product,’’ ‘‘Certification mark
sourced from a Legal Source, a DATES: This rule is effective July 15, artwork,’’ and ‘‘Intermediate ingredient
Responsible Source, or a Certified 2015. or feedstock’’ and adding new
Source as designated by ASTM D7612– definitions for ‘‘Designated product
FOR FURTHER INFORMATION CONTACT: Ron
10, Standard Practice for Categorizing category,’’ ‘‘Forest product,’’ ‘‘Qualified
Wood and Wood-Based Products Buckhalt, USDA, Office of Procurement biobased product,’’ and ‘‘Renewable
According to Their Fiber Sources; or and Property Management, Room 361, chemical.’’ These changes are being
(B) The raw material used in the Reporters Building, 300 7th St. SW., made to bring the voluntary labeling
product is 100% resourced or recycled Washington, DC 20024; email: rule up to date with the BioPreferred
(such as material obtained from building BioPreferred_Support@amecfw.com; Program Guidelines and the 2014 Farm
deconstruction); or phone (202) 205–4008. Information Bill.
(C) The raw material used in the regarding the Voluntary Labeling
product is from an urban environment Program for Biobased Products (one part 2. Revisions to Section 3202.4 ‘‘Criteria
and is acquired as a result of activities of the BioPreferred® Program) is for Product Eligibility To Use the
related to a natural disaster, land available on the Internet at http:// Certification Mark’’
clearing, right-of-way maintenance, tree www.biopreferred.gov. USDA is adding a paragraph and
health improvement, or public safety. SUPPLEMENTARY INFORMATION: The subparagraphs to section 3202.4 that
* * * * * information presented in this preamble describe the biobased content criteria
■ 5. Section 3201.6 is amended by is organized as follows: for complex assemblies. Procedures for
revising the first sentence of paragraph I. Executive Summary designating complex assemblies for the
(a)(1) to read as follows: II. Authority federal preferred procurement initiative
III. Background have been added to the BioPreferred
§ 3201.6 Providing product information to IV. Summary of Changes Program Guidelines and this final rule
wreier-aviles on DSK5TPTVN1PROD with RULES

Federal agencies. V. Discussion of Public Comments updates the voluntary labeling program
(a) * * * VI. Regulatory Information rules to include these products.
(1) * * * The Web site will, as A. Executive Orders 12866 and 13563: USDA is also adding paragraphs to
determined to be necessary by the Regulatory Planning and Review section 3202.4 to present the criteria for
B. Regulatory Flexibility Act (RFA)
Secretary based on the availability of C. Executive Order 12630: Governmental evaluating whether products use
data, provide information as to the Actions and Interference With ‘‘innovative approaches.’’ The
availability, price, biobased content, Constitutionally Protected Property Conference Report on the 2014 Farm
performance and environmental and Rights Bill states that ‘‘It is the Managers’

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Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		This rule is effective July 15, 2015.
Contact		Ron Buckhalt, USDA, Office of Procurement and Property Management, Room 361, Reporters Building, 300 7th St. SW., Washington, DC 20024; email: [email protected]; phone (202) 205-4008. Information regarding the federal biobased preferred procurement program (one part of the BioPreferred Program) is available on the Internet at http:// www.biopreferred.gov.
FR Citation		80 FR 34023
RIN Number		0599-AA23
CFR Associated		Biobased Products and Procurement

80 FR 34023 - Guidelines for Designating Biobased Products for Federal Procurement

DEPARTMENT OF AGRICULTUREOffice of Procurement and Property Management

Federal Register Volume 80, Issue 114 (June 15, 2015)

DEPARTMENT OF AGRICULTURE
Office of Procurement and Property Management