The Biobased and Renewable Products Advocacy Group (BRAG) helps members develop and bring to market their innovative biobased and renewable chemical products through insightful policy and regulatory advocacy. BRAG is managed by B&C® Consortia Management, L.L.C., an affiliate of Bergeson & Campbell, P.C.

By Lynn L. Bergeson

On February 3, 2020, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published a notice requesting comments and feedback on its draft instructions on testing methods under the National Bioengineered Food Disclosure Standard (Standard). According to the Standard, which became effective in 2019, with a mandatory compliance date of January 1, 2022, foods that do not contain bioengineered (BE) material do not require label disclosure. USDA’s definition of BE food (7 CFR 66.1) states that food does not contain modified genetic material if the genetic material is not detectable. Therefore, detectability testing for BE materials in foods plays a key role for stakeholders to determine labeling compliance. Given its importance, USDA AMS has drafted instructions on acceptable testing methodology to be used to satisfy the requirement that the food does not contain detectable BE material. Detectability testing must meet the following standard:

  • Laboratory quality assurance must ensure the validity and reliability of test results;
     
  • Analytical method selection, validation, and verification must ensure that the testing method used is appropriate and that the laboratory can successfully perform the testing;
     
  • The demonstration of testing validity must ensure consistent, accurate analytical performance; and
     
  • Method performance specifications must ensure that analytical tests are sufficiently sensitive for the purposes of the detectability requirements of this part.

Comments on USDA AMS’s draft instructions must be submitted on or prior to March 4, 2020.

Tags: USDA, BE

 

By Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

On January 30, 2020, the National Biodiesel Board (NBB) submitted comments to USDA in response to its request for information (RFI) on the Higher Blends Infrastructure Incentive Program (HBIIP). A new USDA Rural Development project, HBIIP is designed to expand the availability of domestic ethanol and biodiesel by incentivizing the expansion of sales of renewable fuels. USDA’s RFI solicited information on options for fuel ethanol and biodiesel infrastructure, innovation, products, technology, and data derived from all HBIIP processes and/or science that drive economic growth, promote health, and increase public benefit. A total of 56 comments were submitted in response to USDA’s RFI. NBB’s comments included a request for USDA to focus the program on opportunities that would invest in facilitating the greatest additional volumes of biodiesel (including bioheat and sustainable aviation fuel) to enter the marketplace. NBB also calls for direct investment in infrastructure instead of federal funding that incentivizes sales. According to NBB, infrastructure investments should include heated storage tanks, transfer stations, large-scale national retail chains, increased rail capabilities to move and store biodiesel, and pipeline terminals to blend biodiesel. Urging USDA to make HBIIP a multi-year program, NBB Vice President of Federal Affairs, Kurt Kovarik, expresses NBB’s optimism that HBIIP will facilitate biodiesel industry growth.


 

By Lynn L. Bergeson

On January 27, 2020, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) announced that it is accepting comments on its proposed revisions to regulations implemented under the Federal Seed Act (FSA). The proposed rule includes revisions to seed labeling, testing, and certification requirements, including new eligibility standards and the recognition of current breeding techniques. Revised FSA regulations would add certain seed species to the lists of covered kinds of seed and update the lists to reflect current scientific nomenclature. In addition, the proposed revisions would update regulations related to seed quality, germination and purity standards, and acceptable seed testing methods. AMS’s aim is to align FSA regulations with current industry practices, harmonize FSA testing methods and industry standards, and clarify confusing or contradictory language in the existing regulations. As a result of these revisions, AMS expects that trade burden associated with interstate seed commerce would be reduced, encouraging compliance with state and federal laws. Comments on the proposed rule must be submitted on or prior to March 27, 2020.

Tags: USDA

 

By Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

On January 16, 2020, the U.S. Department of Agriculture (USDA) announced the issuance of a Request for Information (RFI) to assist with the creation of its new program called Higher Blends Infrastructure Incentive Program (HBIIP). A USDA Rural Development project, HBIIP is designed to expand the availability of domestic ethanol and biodiesel by incentivizing the expansion of sales of renewable fuels. Requesting feedback from all interested parties, this RFI solicits information on options for fuel ethanol and biodiesel infrastructure, innovation, products, technology, and data derived from all HBIIP processes and/or science that drive economic growth, promote health, and increase public benefit. With an approaching deadline for comment submissions by January 30, 2020, thus far, only three parties have submitted comments to USDA.


 

By Lynn L. Bergeson

On January 9, 2020, also in recognition of National Biotechnology Month, the U.S. Department of Agriculture (USDA), the U.S. Food and Drug Administration (FDA), and the U.S. Environmental Protection Agency (EPA) announced the launch of a unified website for biotechnology regulation. Streamlining information about the three agencies in charge of overseeing agriculture biotechnology products, this website comes, in part, to fulfill President Trump’s Executive Order (EO) on Modernizing the Regulatory Framework for Agricultural Biotechnology Products. The unified website also describes the federal review process for certain biotechnology products and allows users to submit questions to USDA, FDA, and/or EPA. Aiming to improve customer service to innovators and developers, the three agencies also wish to assure Americans about the safe use of biotechnology innovations. According to USDA Secretary of Agriculture, Sonny Purdue, all Americans deserve transparency and science-based regulations that foster innovation, conserve resources, and protect public health. BRAG will supplement this notice with more information next week.


 

By Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

The implementation date of the United States (U.S.) National Bioengineered Food Disclosure Standard (NBFDS) is January 1, 2020. Adopted in February 2019 by the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Services (AMS), the NBFDS regulations (7 C.F.R. Part 66) directed USDA to establish a national mandatory standard for disclosing foods that are or may be bioengineered (BE). NBFDS requires food manufacturers, importers, and certain retailers to disclose information about whether food offered for sale is BE or uses BE food ingredients. Designed to inform consumers about the food they are purchasing, AMS developed a list of BE foods to identify crops or foods that are available in BE form. In this case, USDA defines BE foods “as those that contain detectable genetic material that has been modified through certain lab techniques and cannot be created through conventional breeding or found in nature.” The list includes any BE crops or foods that are in legal production somewhere in the world and is to be updated by AMS annually. Because new BE crops and foods continue to be developed, even if a food is not listed, regulated entities whose records show that a food they are selling is BE must make the appropriate food disclosure. The NBFDS timeline is as follows:

  • Implementation Date: January 1, 2020, for large food manufacturers; January 1, 2021, for small food manufacturers;
  • Voluntary Compliance Date: ends on December 31, 2021; and
     
  • Mandatory Compliance Date: January 1, 2022.

A decision tool has been made available by USDA to guide regulated entities subject to NBFDS in determining whether compliance with the law is necessary. The tool is to be used for each individual ingredient that may be used in a food. Frequently asked questions (FAQ) are also available.

Tags: USDA

 

By Lynn L. Bergeson and Ligia Duarte Botelho, M.A.

USDA Deputy Under Secretary Donald LaVoy and DOE Under Secretary of Energy Mark W. Menezes announced on October 24, 2019, a Memorandum of Understanding (MOU) signed between the two departments to promote rural energy and the development of technologies to support and advance rural and agricultural communities and domestic manufacturing. Required under Section 6501 of the 2018 Farm Bill, the MOU is meant to improve collaboration and coordination between DOE and USDA. A number of areas are covered by the MOU, including:

  • Streamlining, leveraging, and optimizing program resources;
     
  • Strengthening energy-related infrastructure;
     
  • Facilitating energy-related investments in rural communities;
     
  • Ensuring affordable and reliable power;
     
  • Offering technical assistance to rural communities;
     
  • Encouraging innovation; and
     
  • Helping rural businesses export energy products and manufactured goods around the globe.
     
Tags: USDA, DOE

 

By Lynn L. Bergeson

On October 15, 2019, the U.S. Department of Agriculture (USDA) Rural Business-Cooperative Service (RBCS) announced via the Federal Register the solicitation of applications for funds under the Biorefinery, Renewable Chemical, and Biobased Product Manufacturing Assistance Program (the Program). Under the Program, USDA provides guaranteed loans to fund the development, construction, and retrofitting of commercial scale biorefineries using eligible technology. The loans are also used to fund the development of biobased product manufacturing facilities that use technologically new commercial-scale processing and manufacturing equipment to convert renewable chemicals and other biobased outputs of biorefineries into end-user products on a commercial scale. There will be two separate application cycles. The first cycle closed on October 1, 2019, and the second cycle will close on April 1, 2020. Applications filed after the aforementioned dates will be considered for the next application cycle, should funding be available.


 

By Lynn L. Bergeson

On July 5, 2019, the U.S. Department of Agriculture (USDA) Office of Procurement and Property Management published a final rule 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. 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. 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.”
 
For further information, see Bergeson & Campbell, P.C.’s memorandum on the final rule. In the memorandum, we link to the Biobased and Renewable Products Advocacy Group (BRAG®) and its interest in biobased products.


 

By Lynn L. Bergeson

On June 27, 2019, U.S. Senator John Kennedy (R-LA) submitted a letter to USDA Secretary Sonny Purdue asking him to stop threatening energy jobs in Louisiana. In his letter to Secretary Purdue, Senator Kennedy outlines concerns related to Small Refinery Exemptions (SRE) issued by EPA under the RFS program. Of particular concern to Senator Kennedy are reports that Secretary Purdue continues to attempt to influence EPA decisions on small refinery waivers, despite clear measures in the Clean Air Act that prohibit him to do so. Senator Kennedy states that Secretary Purdue’s “efforts in this matter not only disregard congressional intent of the law, bur also threaten thousands of jobs in Louisiana and across the country.” While emphasizing consistency to statutory requirements, Senator Kennedy also highlights his opposition to EPA’s proposal to increase the total blending requirement in the reset rule or 2020 RVO rule. Arguing that increases of the blending requirements or changes to SRE would affect Renewable Identification Numbers (RIN) prices, and therefore, jobs, Senator Kennedy ends the letter by threatening to block Secretary Purdue’s three USDA nominees awaiting confirmation before the Senate.

Tags: USDA, RFS

 
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