Biobased Markets Program

<RULE> DEPARTMENT OF AGRICULTURE <CFR>7 CFR Part 3201 and 3202</CFR> <SUBAGY>Rural Business-Cooperative Service</SUBAGY> <CFR>7 CFR Part 4270</CFR> <DEPDOC>[Docket No. RBS-22-BUSINESS-0004]</DEPDOC> <RIN>RIN 0570-AB05</RIN> <SUBJECT>Biobased Markets Program</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Rural Business-Cooperative Service, USDA. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Rural Business-Cooperative Service (RBCS or the Agency), an agency of the Rural Development (RD) mission area within the U.S. Department of Agriculture (USDA), is issuing a final rule to adopt changes from the Agriculture Improvement Act of 2018 (2018 Farm Bill) that apply to the Biobased Markets (BioPreferred) Program. These changes include the merger of the Guidelines for Designating Biobased Products for Federal Procurement and the Voluntary Labeling Program for Biobased Products into one streamlined regulation, Biobased Markets (BioPreferred) Program. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective January 8, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Information regarding the BioPreferred® Program is available at <E T="03">biopreferred.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Vernell Thompson, Procurement Analyst, USDA RD, 1400 Independence Avenue SW, Washington, DC 20250-1522, STOP 3250; email: <E T="03">vernell.thompson@usda.gov;</E> phone (202) 720-4145. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> The information presented in this preamble is organized as follows: <EXTRACT> <FP SOURCE="FP-2">I. Authority</FP> <FP SOURCE="FP-2">II. Background</FP> <FP SOURCE="FP-2">III. Discussion of Public Comments</FP> <FP SOURCE="FP1-2">A. Definitions</FP> <FP SOURCE="FP1-2">B. Criteria for Eligibility</FP> <FP SOURCE="FP1-2">C. Procurement Programs</FP> <FP SOURCE="FP1-2">D. Category Designation</FP> <FP SOURCE="FP1-2">E. Determining Biobased Content</FP> <FP SOURCE="FP1-2">F. Initial Approval Process/Oversight and Monitoring</FP> <FP SOURCE="FP1-2">G. Miscellaneous/General</FP> <FP SOURCE="FP-2">IV. Summary of Changes</FP> <FP SOURCE="FP-2">V. Executive Orders/Acts</FP> <FP SOURCE="FP1-2">A. Executive Order 12866—Classification</FP> <FP SOURCE="FP1-2">B. Executive Order 12372—Intergovernmental Consultation</FP> <FP SOURCE="FP1-2">C. Paperwork Reduction Act</FP> <FP SOURCE="FP1-2">D. National Environmental Policy Act</FP> <FP SOURCE="FP1-2">E. Regulatory Flexibility Act</FP> <FP SOURCE="FP1-2">F. Administrative Pay-As-You-Go-Act of 2023</FP> <FP SOURCE="FP1-2">G. Executive Order 12988—Civil Justice Reform</FP> <FP SOURCE="FP1-2">H. Unfunded Mandates Reform Act (UMRA)</FP> <FP SOURCE="FP1-2">I. Executive Order 13132—Federalism</FP> <FP SOURCE="FP1-2">J. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments</FP> <FP SOURCE="FP1-2">K. E-Government Act Compliance</FP> <FP SOURCE="FP1-2">L. Civil Rights Impact Analysis</FP> <FP SOURCE="FP1-2">M. USDA Non-Discrimination Statement</FP> <FP SOURCE="FP1-2">N. Severability</FP> </EXTRACT> <HD SOURCE="HD1">I. Authority</HD> The USDA Biobased Markets Program, called the BioPreferred® Program, is established under the authority of Section 9002 of the Farm Security and Rural Investment Act (FSRIA) of 2002 (Pub. L. 107-171) (the 2002 Farm Bill), as amended by the Food, Conservation, and Energy Act of 2008 (Pub. L. 10-246) (the 2008 Farm Bill), the Agricultural Act of 2014 (Pub. L. 113-79) (the 2014 Farm Bill), and the Agriculture Improvement Act of 2018 (Pub. L. 115-334) (the 2018 Farm Bill). Section 9002 of the 2002 Farm Bill, as amended by the 2008, 2014, and 2018 Farm Bills, is referred to in this rule as section 9002 of FSRIA. <HD SOURCE="HD1">II. Background</HD> On January 24, 2024, the Agency published a proposed rule, 89 FR 4770, with request for comments for the purpose of implementing the amendments made to section 9002 of FSRIA by the 2018 Farm Bill by combining the Guidelines for Designating Biobased Products for Federal Procurement (7 CFR part 3201) and the Voluntary Labeling Program for Biobased Products (7 CFR part 3202), the legacy rules of the BioPreferred Program, into one regulation, 7 CFR part 4270, and making amendments to streamline and improve the BioPreferred Program's rules. The legacy rules established the two core initiatives of the BioPreferred Program. Part 3201 of title 7 of the Code of Federal Regulations detailed the rules for the procurement of Biobased Products by Federal Agencies and their contractors, established the process for designating categories of Biobased Products for preferred Federal procurement, maintained the list of Designated Product Categories, and outlined the requirements for Biobased Products to qualify for preferred Federal procurement. Part 3202 of title 7 of the Code of Federal Regulations established the rules for manufacturers and vendors of Biobased Products to become certified to use the USDA Certified Biobased Product Label (Label) and provided rules for maintaining certification and utilizing the Label. With this rulemaking, the Agency is merging the legacy rules into one streamlined regulation that will facilitate the objective of the BioPreferred Program, which is to encourage the increased use of Biobased Products in all market sectors. Additionally, the Agency believes these changes will benefit BioPreferred Program Stakeholders by implementing process improvements and tying the two initiatives more closely together, making it easier to qualify for both initiatives. <HD SOURCE="HD1">III. Discussion of Public Comments</HD> Sixteen respondents submitted comments on the proposed rule. The Agency reviewed the public comments in the development of the final rule. A discussion of the comments is provided as follows. <HD SOURCE="HD2">A. Definitions</HD> a. Three respondents expressed support for the inclusion of Renewable Chemicals in the definition of the term Biobased Product. <E T="03">Agency Response:</E> The Agency thanks the respondents for their support of the change to the definition of Biobased Product. b. One respondent recommended establishing the BioPreferred Program's definition of biobased as the uniform definition throughout the federal government. <E T="03">Agency Response:</E> The Agency agrees that it is important to have a uniform definition of biobased throughout the federal government. The requirements established by the BioPreferred Program apply to all federal agencies, and therefore, the definitions established by the BioPreferred Program apply to all federal agencies as well. The Agency will continue efforts to educate federal agencies and their contractors about Biobased Products and the requirements associated with the BioPreferred Program. <HD SOURCE="HD2">B. Criteria for Eligibility</HD> a. Three respondents expressed support for establishing a single participation process under which all products must undergo Biobased Content Testing using ASTM D6866. <E T="03">Agency Response:</E> The Agency thanks the respondents for their support in establishing a single participation process. For reader clarification, ASTM D6866 is the American Society for Testing and Materials (ASTM) International standard test methods for determining the Biobased Content of solid, liquid, and gaseous samples using radiocarbon analysis. b. Two respondents expressed concern regarding the added requirements for all products to undergo Biobased Content Testing. The respondents noted that, through collaboration with USDA Forest Service Forest Products Lab (FPL), the Agency has established guidelines for testing wood products, under which specific types of wood and engineered wood products are exempt from testing. The respondents recommended that the Agency continue to uphold these guidelines under this final rule. The respondents asserted that changing the testing requirements for products that fall under the exemption guidelines established with FPL would add unnecessary cost to manufacturers (and therefore purchasers) and hinder the efficiency of the BioPreferred Program. <E T="03">Agency Response:</E> The Agency agrees that the guidelines for testing wood products that have been established in collaboration with FPL should be maintained. The Agency is not intending to change these guidelines with the implementation of this final rule. Products that are eligible to be exempt from testing under the guidelines established in collaboration with FPL will be exempt from testing as described by § 4270.7(d)(1) in this final rule. c. Two respondents expressed support for maintaining the raw material sourcing innovative criterion that allows participants to demonstrate that their Biobased Product is innovative if the raw material is sourced from responsible sources according to standards such as ASTM Standard D7612—Standard Practice for Categorizing Wood and Wood-Based Products According to Their Fiber Sources. <E T="03">Agency Response:</E> The Agency thanks the respondents for their support. d. One respondent expressed support for the addition of the raw material sourcing innovative criterion that allows participants to demonstrate that their Biobased Product is innovative if the raw material is grown, harvested, manufactured, processed, sourced, or applied in other sustainable and ethically sourced ways as determined by the Agency. <E T="03">Agency Response:</E> The Agency thanks the respondent for their support. e. One respondent recommended that Biobased Products should never be grown, sold, or used as an energy source and strongly recommended against establishing any rules, requirements, or funding opportunities related to biofuels. <E T="03">Agency Response:</E> The Agency notes that biofuels, including motor vehicle fuels, heating ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 134k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━