The U.S. Department of Agriculture (USDA) published a final rule on July 5, 2019, amending its “Guidelines for Designating Biobased Products for Federal Procurement” to include 30 more product categories for biobased products that may receive procurement preference by federal agencies and their contractors. These 30 product categories contain finished products made, in large part, from intermediate ingredients designated for federal procurement preference. This article explains why Chemical Processing readers should note this important development.
The product categories are designated under the authority of Section 9002 of the Farm Security and Rural Investment Act of 2002 (2002 Farm Bill). Section 9002 provides for the preferred procurement of biobased products by federal procuring agencies. When the USDA designates a product category for preferred procurement under the BioPreferred Program, manufacturers of all products under the umbrella of that product category that meet the requirements for preferred procurement can claim that status for their products. As discussed below, companies whose products qualify under the BioPreferred Program can gain considerable advantages.
To qualify for preferred procurement, a product must fall within a designated product category and contain at least the minimum biobased content established for the category. With the designation of these specific product categories, the USDA invites manufacturers and vendors of qualifying products to provide information on the product, contacts and performance testing for posting to its BioPreferred website, www.biopreferred.gov. Once the USDA designates a product category, procuring agencies generally must purchase biobased products within the designated category where the purchase price exceeds $10,000 or where the quantity of such products or of functionally equivalent products purchased over the preceding fiscal year equaled $10,000 or more. The product categories newly added include adhesives, animal habitat care products, epoxy systems, cleaning tools, concrete curing agents, transmission fluids, wall coverings and many more. The USDA also amended certain existing product categories of general purpose de-icers, firearm lubricants, laundry products and water clarifying agents.
To augment its own research, the USDA states it consults with industry and federal stakeholders during the development of the rulemaking packages for the designation of product categories. The USDA confers with stakeholders to gather information used in determining the order of product category designation and in identifying the following: manufacturers producing and marketing products that are categorized within a product category proposed for designation; performance standards used by federal agencies evaluating products to be procured; and warranty information used by manufacturers of end-user equipment and other products with regard to biobased products.
The federal government spends over $500 billion/yr on goods and services. That’s a lot of buying power. All federal agencies must purchase designated biobased products, as this term is defined in the statute, for all items costing over $10,000 or where the quantity of such products or of functionally equivalent products purchased over the preceding fiscal year equaled $10,000 or more. For these reasons alone, product manufacturers should pay close attention to these revised procurement guidelines and offer goods entitled to procurement preference under the program. Qualifying for a designated biopreferred product could enhance significantly a company’s ability to compete for valuable government contracted goods and services. Alternatively, failure to qualify as a biopreferred product could shut a company out of competing for lucrative government contracts.
Many additional benefits to the purchase and use of biobased products exist. The USDA promotes the program aggressively to enhance the nation’s energy security by replacing fossil-fuel-based products with biobased ones.
In addition, many biobased products are environmentally friendly and possess more sustainable product attributes than non-biobased and petroleum-based products. One of the reasons Congress enacted Section 9002 of the 2002 Farm Bill was to jump-start development of more environmentally friendly products and spur agricultural processing and manufacturing in rural communities. U.S. farmers appreciate the program as it has increased demand for domestic crops such as soybean, corn and flax for feedstocks to manufacture biobased products.
The final rule was effective on August 5, 2019.
LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at [email protected]
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.