Regulatory Developments

USDA to Amend Guidelines for Designating Biobased Products for Federal Procurement

July 8, 2019

The U.S. Department of Agriculture’s (USDA) Office of Procurement and Property Management published a final rule on July 5, 2019, that will amend the Guidelines for Designating Biobased Products for Federal Procurement (Guidelines) to add 30 sections designating the product categories within which biobased products would be afforded procurement preference by federal agencies and their contractors. 84 Fed. Reg. 32015. These 30 product categories contain finished products that are made, in large part, from intermediate ingredients that have been designated for federal procurement preference. Additionally, USDA is amending the existing designated product categories of general purpose de-icers, firearm lubricants, laundry products, and water clarifying agents. The rule will be effective on August 5, 2019.

According to the final rule, when USDA designates by rulemaking 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 to qualify for preferred procurement can claim that status for their products. To qualify for preferred procurement, a product must be within a designated product category and contain at least the minimum biobased content established for the designated product category. With the designation of these specific product categories, USDA invites manufacturers and vendors of qualifying products to provide information on the product, contacts, and performance testing for posting on its BioPreferred website, http://www.biopreferred.gov. USDA states that procuring agencies will be able to use this website “as one tool to determine the availability of qualifying biobased products under a designated product category.” Once USDA designates a product category, procuring agencies are generally required to purchase biobased products within the designated product category where the purchase price of the procurement product 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.

Subcategorization

In the final rule, USDA is subcategorizing one of the product categories, concrete repair materials. The proposed subcategories are concrete leveling and concrete patching. USDA is also adding a new subcategory for dryer sheets to the laundry products product category that was designated previously.

Minimum Biobased Contents

The minimum biobased contents being established are based on products for which USDA has biobased content test data. USDA obtains biobased content data in conjunction with product manufacturers’ and vendors’ applications for certification to use the USDA Certified Biobased Product label. Products that are certified to display the label must undergo biobased content testing by an independent, third-party testing lab using ASTM D6866, “Standard Test Methods for Determining the Biobased Content of Solid, Liquid, and Gaseous Samples Using Radiocarbon Analysis.” USDA states that these test data are maintained in the BioPreferred Program database, and their use in setting the minimum biobased content for designated product categories “results in a more efficient process for both the Program and manufacturers and vendors of products within the product categories.”

Overlap with EPA’s CPG Program for Recovered Content Products under RCRA Section 6002

Some of the products that are categorized in biobased product categories that are designated for federal preferred procurement under the BioPreferred Program may overlap with product categories that the U.S. Environmental Protection Agency (EPA) has designated under its Comprehensive Procurement Guideline (CPG) for products containing recovered (or recycled) materials. A list of EPA’s CPG Program product categories is available on its website and in 40 C.F.R. Part 247. In the final rule, some products that are categorized in the product categories of concrete curing agents; concrete repair materials -- concrete leveling; concrete repair materials -- concrete patching; exterior paints and coatings; folders and filing products; other lubricants; playground and athletic surface materials; product packaging; rugs or floor mats; shopping and trash bags; soil amendments; and transmission fluids may also be categorized in one or more of the following product categories that are designated in EPA’s CPG Program:

  • Construction Products: Cement and Concrete; Consolidated and Reprocessed Latex Paint for Specified Uses;
     
  • Landscaping Products: Compost Made From Recovered Organic Materials; Fertilizer Made From Recovered Organic Materials;
     
  • Miscellaneous Products: Mats;
     
  • Non-Paper Office Products: Binders, Clipboards, File Folders, Clip Portfolios, and Presentation Folders; Plastic Envelopes; Plastic Trash Bags;
     
  • Paper Products: Paperboard and Packaging;
     
  • Parks and Recreation Products: Playground Surfaces; Running Tracks; and
     
  • Vehicular Products: Re-refined Lubricating Oil.
     

Federal Government Purchase of Sustainable Products

The federal government’s sustainable purchasing program includes the following three mandatory preference programs for designated products: the BioPreferred Program; EPA’s CPG Program; and the Environmentally Preferable Purchasing Program. The final rule states that the Council on Environmental Quality (CEQ) and the Office of Management and Budget (OMB) “encourage agencies to implement these components comprehensively when purchasing products and services.”

Other Federal Preferred Procurement Programs

According to the final rule, federal procurement officials should also note that many biobased products may be available for purchase by federal agencies through the AbilityOne Program (formerly known as the Javits-Wagner-O’Day (JWOD) Program). Under this Program, members of organizations, including the National Industries for the Blind (NIB) and SourceAmerica (formerly known as the National Industries for the Severely Handicapped), offer products and services for preferred procurement by federal agencies.

Some biobased products that are categorized in the product categories of adhesives; cleaning tools; clothing; de-icers; durable cutlery; durable tableware; exterior paints and coatings; feminine care products; folders and filing products; gardening supplies and accessories; kitchenware and accessories; other lubricants; rugs and floor mats; and toys and sporting gear could be available for purchase in one or more of the following product categories in the AbilityOne Catalog:

  • Cleaning and Janitorial Products,
     
  • Clothing,
     
  • Furniture,
     
  • Hardware and Paints,
     
  • Kitchen and Breakroom Supplies,
     
  • Mailing and Shipping Supplies,
     
  • Office Supplies,
     
  • Outdoor Supplies, and
     
  • Skin and Personal Care.
     

Because additional categories of products are frequently added to the AbilityOne Program, USDA notes that biobased products within other product categories being designated in the final rule may be available through the AbilityOne Program in the future. USDA states that procurement of biobased products through the AbilityOne Program would further the objectives of both the AbilityOne Program and the federal preferred procurement program.

Outreach

To augment its own research, USDA states that it consults with industry and federal stakeholders to the federal preferred procurement program during the development of the rulemaking packages for the designation of product categories. USDA consults 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.

Commentary

The federal government spends over $500 billion each year on goods and services. That is a lot of buying power. All federal agencies are required to 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 are well advised to pay close attention to these revised procurement guidelines and offer goods that are afforded procurement preference under the program.

There are many additional benefits to the purchase and use of biobased products other than procurement preference. USDA promotes the program aggressively as it enhances the Nation’s energy security by substituting biobased products for fossil fuel-based products. In addition, many biobased products are environmentally friendly and possess more sustainable product attributes than non-biobased products derivative of petroleum-based products. U.S. farmers appreciate the program as it increases demand for domestic crops like soybean, corn, and flax for feedstocks to manufacture biobased products.

If you are interested in this final rule, or in exploring other aspects of biobased products, you may be interested in learning more about the Biobased and Renewable Products Advocacy Group (BRAG®), managed by B&C® Consortia Management, L.L.C. For further information, please contact Ligia Botelho at lbotelho@bc-cm.com.


 
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