7 U.S. Code § 8102 - Biobased markets program
Subject to subparagraph (B) and except as provided in clause (ii), a procuring agency adopting the case-by-case policy shall award a contract to the vendor offering an item composed of the highest percentage of biobased products practicable.
Subject to subparagraph (B), a procuring agency adopting the minimum content standards policy shall establish minimum biobased products content specifications for awarding contracts in a manner that ensures that the biobased products content required is consistent with this subsection.
After the date specified in any applicable guidelines prepared pursuant to paragraph (3), contracting offices shall require that vendors certify that the biobased products to be used in the performance of the contract will comply with the applicable specifications or other contractual requirements.
The Secretary, after consultation with the Administrator, the Administrator of General Services, and the Secretary of Commerce (acting through the Director of the National Institute of Standards and Technology), shall prepare, and from time to time revise, guidelines for the use of procuring agencies in complying with the requirements of this subsection.
Information provided pursuant to subparagraph (B)(v)  with respect to a material or item shall be considered to be provided for another item made with the same material or item.
Guidelines issued under this paragraph may not require a manufacturer or vendor of biobased products, as a condition of the purchase of biobased products from the manufacturer or vendor, to provide to procuring agencies more data than would be required to be provided by other manufacturers or vendors offering products for sale to a procuring agency, other than data confirming the biobased content of a product.
Any procurement by any Federal agency that is subject to regulations of the Administrator under section 6962 of title 42 shall not be subject to the requirements of this section to the extent that the requirements are inconsistent with the regulations.
The Secretary, in consultation with the Administrator, shall establish a voluntary program under which the Secretary authorizes producers of biobased products to use the label “USDA Certified Biobased Product”.
Not later than 90 days after the date of the enactment of the Food, Conservation, and Energy Act of 2008 and except as provided in clause (ii), the Secretary, in consultation with the Administrator and representatives from small and large businesses, academia, other Federal agencies, and such other persons as the Secretary considers appropriate, shall issue criteria (as of the date of enactment of that Act) for determining which products may qualify to receive the label under paragraph (1).
The Secretary shall ensure that the label referred to in paragraph (1) is used only on products that meet the criteria issued pursuant to paragraph (2).
Nothing in this section shall apply to the procurement of motor vehicle fuels, heating oil, or electricity.
Effective beginning on the date that is 90 days after the date of enactment of the Food, Conservation, and Energy Act of 2008, the Architect of the Capitol, the Sergeant at Arms of the Senate, and the Chief Administrative Officer of the House of Representatives shall consider the biobased product designations made under this section in making procurement decisions for the Capitol Complex.
The Secretary shall establish a national registry of testing centers for biobased products that will serve biobased product manufacturers.
In determining whether products are eligible for the “USDA Certified Biobased Product” label, the Secretary (acting through the Forest Products Laboratory) shall provide appropriate technical and other assistance to the program and applicants for forest products.
Not later than 180 days after the date of enactment of the Food, Conservation, and Energy Act of 2008 and each year thereafter, the Secretary shall submit to Congress a report on the implementation of this section.
Of the funds of the Commodity Credit Corporation, the Secretary shall use to carry out this section $3,000,000 for each of fiscal years 2014 through 2018.
In this section, the term “biobased product” (as defined in section 8101 of this title) 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.
 See References in Text note below.
Subparagraph (B)(v) of subsection (a)(3) of this section, referred to in subsec. (a)(3)(C), was redesignated subparagraph (B)(vii) by Pub. L. 113–79, title IX, § 9002(a)(1)(B)(i)(II), Feb. 7, 2014, 128 Stat. 927.
The date of the enactment of the Food, Conservation, and Energy Act of 2008, referred to in subsecs. (b)(2)(A), (e), and (h)(1), is the date of enactment of Pub. L. 110–246, which was approved June 18, 2008.
A prior section 8102, Pub. L. 107–171, title IX, § 9002, May 13, 2002, 116 Stat. 476; Pub. L. 109–58, title II, § 205, title IX, § 943(a)(2), (b), Aug. 8, 2005, 119 Stat. 654, 880, 881, related to Federal procurement of biobased products, prior to the general amendment of this chapter by Pub. L. 110–246.
2014—Subsec. (a)(2)(A)(i)(III). Pub. L. 113–79, § 9002(a)(1)(A), added subcl. (III).
Subsec. (a)(3)(B)(v). Pub. L. 113–79, § 9002(a)(1)(B)(i)(III), added cl. (v). Former cl. (v) redesignated (vii).
Pub. L. 113–79, § 9002(a)(1)(B)(i)(I), inserted “as determined to be necessary by the Secretary based on the availability of data,” before “provide information”.
Subsec. (a)(3)(B)(vi). Pub. L. 113–79, § 9002(a)(1)(B)(i)(III), added cl. (vi). Former cl. (vi) redesignated (viii).
Subsec. (a)(3)(B)(vii), (viii). Pub. L. 113–79, § 9002(a)(1)(B)(i)(II), redesignated cls. (v) and (vi) as (vii) and (viii), respectively.
Subsec. (a)(3)(F). Pub. L. 113–79, § 9002(a)(1)(B)(ii), added subpar. (F).
Subsec. (b)(3). Pub. L. 113–79, § 9002(a)(2)(A), designated existing provisions as subpar. (A), inserted heading, and added subpar. (B).
Subsec. (b)(4). Pub. L. 113–79, § 9002(a)(2)(B), added par. (4).
Subsec. (g). Pub. L. 113–79, § 9002(a)(5), added subsec. (g). Former subsec. (g) redesignated (h).
Subsec. (g)(2). Pub. L. 113–79, § 9002(a)(3)(A)(i), substituted “Each report under paragraph (1)” for “The report” in introductory provisions.
Subsec. (g)(2)(C). Pub. L. 113–79, § 9002(a)(3)(A)(ii)–(iv), added subpar. (C).
Subsec. (g)(3). Pub. L. 113–79, § 9002(a)(3)(B), added par. (3).
Subsecs. (h), (i). Pub. L. 113–79, § 9002(a)(4), redesignated subsecs. (g) and (h) as (h) and (i), respectively.
Subsec. (i)(1), (2). Pub. L. 113–79, § 9002(a)(6), added pars. (1) and (2) and struck out former pars. (1) and (2) which related to mandatory funding for fiscal years 2008 through 2012 and discretionary funding for fiscal years 2009 through 2013, respectively.
Subsec. (j). Pub. L. 113–79, § 9002(a)(7), added subsec. (j).
2013—Subsec. (h)(2). Pub. L. 112–240 substituted “2013” for “2012”.
Enactment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as a note under section 8701 of this title.
Memorandum for the Heads of Executive Departments and Agencies
The BioPreferred program—established by the Farm Security and Rural Investment Act of 2002 (Public Law 107–171) (2002 Farm Bill), and strengthened by the Food, Conservation[,] and Energy Act of 2008 (Public Law 110–234 [probably should refer to Public Law 110–246]) (2008 Farm Bill)—is intended to increase Federal procurement of biobased products to promote rural economic development, create new jobs, and provide new markets for farm commodities. Biobased and sustainable products help to increase our energy security and independence.
The Federal Government, with leadership from the Department of Agriculture (USDA), has made significant strides in implementing the BioPreferred program. It is one of the key elements in my efforts to promote sustainable acquisition throughout the Government under [former] Executive Order 13514 of October 5, 2009 (Federal Leadership in Environmental, Energy, and Economic Performance). Further efforts will drive innovation and economic growth and create jobs at marginal cost to the American public.
The goal of this memorandum is to ensure that executive departments and agencies (agencies) effectively execute Federal procurement requirements for biobased products, including those requirements identified in [former] Executive Order 13514 and prescribed in the 2002 Farm Bill, as amended by the 2008 Farm Bill. It is vital that these efforts are in accord and carefully coordinated with other Federal procurement requirements.
Therefore, I direct that agencies take the following steps to significantly increase Federal procurement of biobased and other sustainable products.
Section 1. [Revoked by Ex. Ord. No. 13693, § 16(b), Mar. 19, 2015, 80 F.R. 15880.]
Sec. 2. Biobased Product Designations. The USDA has already designated 64 categories of biobased products for preferred Federal procurement. Although these categories represent an estimated 9,000 individual products, less than half of the known biobased products are currently included in the preference program. Increasing the number of products subject to the Federal procurement preference will increase procurement of biobased products. Therefore, I direct the Secretary of Agriculture to:
(a) increase both the number of categories of biobased products designated and individual products eligible for preferred purchasing by 50 percent within 1 year of the date of this memorandum; and
(b) establish a web-based process whereby biobased product manufacturers can request USDA to establish a new product category for designation. The USDA shall determine the merit of the request and, if the product category is deemed eligible, propose designation within 180 days of the request.
Sec. 3. Changes in Procurement Mechanisms. Several actions can be taken to facilitate improvement in and compliance with the requirements to purchase biobased products. To achieve these changes, I direct:
(a) the Senior Sustainability Officers and Chief Acquisition Officers of all agencies to randomly sample procurement actions (such as solicitations and awards) to verify that biobased considerations are included as appropriate. Agencies shall include results of these sampling efforts in the Sustainability/Energy scorecard reported to OMB;
(b) the Secretary of Agriculture to work with relevant officials in agencies that have electronic product procurement catalogs to identify and implement solutions to increase the visibility of biobased and other sustainable products;
(c) the Senior Sustainability Officers of all agencies that have established agency-specific product specifications, in coordination with any other appropriate officials, to review and revise all specifications under their control to assure that, wherever possible and appropriate, such specifications require the use of sustainable products, including USDA-designated biobased products, and that any language prohibiting the use of biobased products is removed. The review shall be on a 4-year cycle. Significant review should be completed within 1 year of the date of this memorandum, and the results of the reviews shall be annually reported to OMB and the Office of Science and Technology Policy (OSTP); and
(d) the Secretary of Agriculture to amend USDA’s automated contract writing system, the Integrated Acquisition System, to serve as a model for biobased product procurement throughout the Federal Government by adding elements related to acquisition planning, evaluation factors for source selection, and specifications and requirements. Once completed, USDA shall share the model with all agencies and, as appropriate, assist any agency efforts to adopt similar mechanisms.
Sec. 4. Small Business Assistance. A majority of the biobased product manufacturers and vendors selling biobased products and services that use biobased products to the Federal Government are small businesses. To improve the ability of small businesses to sell these products and services to the Federal Government, I direct:
(a) the Secretary of Commerce, in consultation with the Secretary of Agriculture, to use relevant programs of the Department, such as the Manufacturing Extension Partnership network, to improve the performance and competitiveness of biobased product manufacturers;
(b) the Secretary of Agriculture to work cooperatively with Procurement Technical Assistance Center programs located across the Nation to provide training and assistance to biobased product companies to make these companies aware of the BioPreferred program and opportunities to sell biobased products to Federal, State, and local government agencies; and
(c) the Secretary of Agriculture to develop training within 6 months of the date of this memorandum for small businesses on the BioPreferred program and the opportunities it presents, and the Administrator of the Small Business Administration (SBA) to disseminate that training to Small Business Development Centers and feature it on the SBA website.
Sec. 5. Reporting. The Federal Government should obtain the most reliable information to gauge its progress in purchasing biobased products, including measuring the annual number of procurements that include direct purchase of biobased products, the annual number of construction and service contracts that include the purchase of biobased products, and the annual volume and type of biobased products the Federal Government purchases. I direct that:
(a) within 1 year of the date of this memorandum, the Federal Acquisition Regulatory Council shall propose an amendment to the Federal Acquisition Regulation to require reporting of biobased product purchases, to be made public on an annual basis; and
(b) following the promulgation of the proposed amendment referenced in subsection (a) of this section, the Secretary of Agriculture, in consultation with the Chief Acquisition Officers Council, shall develop a reporting template to facilitate the annual reporting requirement.
Sec. 6. Jobs Creation Research. Biobased products are creating jobs across America. These innovative products are creating new markets for agriculture and expanding opportunities in rural America. Therefore, I direct the Secretary of Agriculture to prepare a report on job creation and the economic impact associated with the biobased product industry to be submitted to the President through the Domestic Policy Council and OSTP within 2 years of the date of this memorandum. The study shall include:
(a) the number of American jobs originating from the biobased product industry annually over the last 10 years, including the job changes in specific sectors;
(b) the dollar value of the current domestic biobased products industry, including intermediates, feedstocks, and finished products, but excluding biofuels;
(c) a forecast for biobased job creation potential over the next 10 years;
(d) a forecast for growth in the biobased industry over the next 10 years; and
(e) jobs data for both biofuels and biobased products, but shall generate separate data for each category.
Sec. 7. Education and Outreach. In compliance with the 2002 Farm Bill, several agencies established agency promotion programs to support the biobased products procurement preference. The Federal Acquisition Institute has added biobased procurement training to its course offerings. To assure both formal and informal educational and outreach instruction on the BioPreferred program are in place and being implemented by each agency, I direct:
(a) the Secretary of Agriculture to update all existing USDA BioPreferred and related sustainable acquisition training materials within 1 year of the date of this memorandum;
(b) the Senior Sustainability Officers and Chief Acquisition Officers of agencies to work cooperatively with the Secretary of Agriculture to immediately implement such BioPreferred program agency education and outreach programs as are necessary to meet the requirements of this memorandum and relevant statutes; and
(c) the Secretary of Agriculture to work actively with the Committee for Purchase From People Who Are Blind or Severely Disabled to promote education and outreach to program, technical, and contracting personnel, and to purchase card holders on BioPreferred AbilityOne products.
Sec. 8. General Provisions. (a) This memorandum shall apply to an agency with respect to the activities, personnel, resources, and facilities of the agency that are located within the United States. The head of an agency may provide that this memorandum shall apply in whole or in part with respect to the activities, personnel, resources, and facilities of the agency that are not located within the United States, if the head of the agency determines that such application is in the interest of the United States.
(b) The head of an agency shall manage activities, personnel, resources, and facilities of the agency that are not located within the United States, and with respect to which the head of the agency has not made a determination under subsection (a) of this section, in a manner consistent with the policies set forth in this memorandum, to the extent the head of the agency determines practicable.
(c) For purposes of this memorandum, “biobased product” shall have the meaning set forth in section 8101(4) of title 7, United States Code.
(d) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(e) The Secretary of Agriculture is hereby authorized and directed to publish this memorandum in the Federal Register.