By Lynn L. Bergeson and Carla N. Hutton
 
President Joseph Biden’s September 12, 2022, Executive Order (EO) creating a National Biotechnology and Biomanufacturing Initiative directs the U.S. Department of Commerce’s (DOC) Bureau of Economic Analysis (BEA) to assess “the feasibility, scope, and costs of developing a national measurement of the economic contributions of the bioeconomy.” As reported in our March 30, 2023, blog item, BEA released a March 2023 report on Developing a National Measure of the Economic Contributions of the Bioeconomy that assesses the feasibility of measuring the economic contributions of the U.S. bioeconomy. The report also includes an assessment of what is needed to measure these contributions better and more accurately.
 
According to the report, in the case of the bioeconomy, researchers, potential data users, and other stakeholders have different (and competing) ideas of how the bioeconomy should be defined and which industries should be included or excluded. The report states that these different ideas can be summarized into three distinct visions for the bioeconomy:

• Biotechnology: The biotechnology vision focuses on emerging industries and products enabled by innovation in the life sciences, particularly in genetic engineering; in this vision, established industries such as agriculture and forestry are typically not included;
• Bioresources: The bioresources vision focuses on understanding the flow of biological resources, such as biomass and biofuels, through the economy; in this vision, the agriculture and forestry industries are included as foundational components of the bioeconomy; and
• Bioecology: The bioecology vision focuses on the contributions of the bioeconomy to sustainability and the environment; this vision may specifically exclude some products or industries, such as genetically engineered crops.

The report states that it finds that developing a comprehensive bioeconomy satellite account encompassing all concepts of the bioeconomy appears technically feasible. The report notes that “[s]uch a broad approach would roughly correspond to similar efforts by the European Union (EU) and other international organizations but would not address data users’ preferences for an account more focused on a specific vision of the bioeconomy.” The report states that “[d]eveloping a consistent, ongoing bioeconomy satellite account broken down along the lines of specific visions of the bioeconomy, such as biotechnology, is likely infeasible at this time due to both a lack of existing data on which to base such an account and a lack of consensus on practical measurement definitions.”

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By Lynn L. Bergeson and Carla N. Hutton
 
The U.S. Environmental Protection Agency (EPA) is scheduled to publish a final rule on May 18, 2021, that will rescind the October 18, 2020, rulemaking that established procedures for issuing, modifying, withdrawing, and using guidance documents. According to the final rule, after consideration and review, “EPA has concluded that the internal rule on guidance deprives the EPA of necessary flexibility in determining when and how best to issue public guidance based on particular facts and circumstances, and unduly restricts the EPA's ability to provide timely guidance on which the public can confidently rely.” EPA states that it will continue to make Agency guidance available to the public at https://www.epa.gov. In addition, EPA will comply with all statutory obligations pertaining to posting documents for public accessibility. EPA will also continue its practice, as appropriate, of soliciting stakeholder input on guidance of significant stakeholder and public interest. EPA notes that consistent with the Administrative Procedure Act (APA), stakeholders may still petition EPA at any time regarding its regulatory programs, including requests to issue, amend, or repeal EPA guidance. The final rule will be effective when published in the Federal Register.

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By Lynn L. Bergeson

On September 14, 2020, the U.S. Environmental Protection Agency (EPA) released a pre-publication version of a final rule establishing the procedures and requirements for how EPA will manage the issuance of guidance documents consistent with Executive Order (EO) 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.” The final regulation provides a definition of guidance document for the purposes of this rule, establishes general requirements and procedures for certain guidance documents issued by EPA, and incorporates additional requirements for guidance documents determined to be significant guidance. EPA notes that the regulation, consistent with the EO, also provides procedures for the public to petition for the modification or withdrawal of active guidance documents as defined by the rule or to petition for the reinstatement of a rescinded guidance document. EPA states that the regulation is intended to increase the transparency of its guidance practices and improve the process used to manage its guidance documents. The final rule will be effective 30 days after the publication in the Federal Register. Further details and a Bergeson & Campbell, P.C. (B&C^®) commentary are available here.

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By Lynn L. Bergeson

On September 10, 2020, DOE, the U.S. Department of Commerce (DOC), the U.S. Department of Defense (DoD), and the U.S. Department of State announced the launch of the Federal Consortium for Advanced Batteries (FCAB). FCAB was formed to accelerate the development of a secure, robust, domestic industrial base for advanced batteries. It provides a framework for cooperation and coordination among federal agencies that have a stake in developing such battery technology and establishing a domestic supply of lithium batteries.

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By Lauren M. Graham, Ph.D.

On December 8, 2017, the U.S. Department of Commerce (DOC) issued in the Federal Register a notice on the postponement of final determinations of sales in less than fair value (LTFV) investigations into biodiesel from Argentina and Indonesia and the extension of provisional measures.  As reported in the Biobased and Renewable Products Advocacy Group (BRAG^®) blog post “DOC Initiates Biodiesel Antidumping, Countervailing Investigation,” DOC initiated LTFV investigations of imports of biodiesel from Argentina and Indonesia on April 12, 2017.  DOC is postponing the deadline for issuing the final determinations until February 15, 2018, and extending the provisional measures from a four-month period to a period of no more than six months.  According to the notice, a postponement is permitted given that each preliminary determination was affirmative; the requests in each investigation were made by the exporters and producers who account for a significant proportion of exports of the subject merchandise from the country at issue; and no compelling reasons for denials exist.

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By Lauren M. Graham, Ph.D.

On November 9, 2017, the U.S. Department of Commerce (DOC) issued affirmative final determinations in the countervailing duty (CVD) investigations of imports of biodiesel from Argentina and Indonesia.  Following a nine month investigation, DOC determined that Argentina and Indonesia are providing unfair subsidies to its producers of biodiesel at rates from 71.45 to 72.28 percent and 34.45 to 64.73 percent, respectively.  As a result, U.S. Customs and Border Protection (CBP) will collect cash deposits from importers of biodiesel from Argentina and Indonesia based on the final rates.
 
Following DOC’s final determination, the International Trade Commission (ITC) will make its final determination within 45 days.  According to Argentine President Mauricio Macri, the Argentine government would appeal to the World Trade Organization (WTO) if the DOC follows through on the duties on Argentine biodiesel.

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By Kathleen M. Roberts

On September 5, 2017, the U.S. Department of Commerce (DOC) published in the Federal Register a notice of an open meeting of the Renewable Energy and Energy Efficiency Advisory Committee (REEEAC).  REEEAC will hold a meeting from 8:30 a.m. to 5:00 p.m. on November 16, 2017, in Washington, D.C.  REEEAC provides the Secretary of Commerce with advice from the private sector on the development and administration of programs and policies to expand the export competitiveness of the U.S. renewable energy and energy efficiency products and services.  The meeting will include REEEAC subcommittee working sessions, a discussion on next steps for each subcommittee, consideration of recommendations for approval, and an update from DOC and other agencies on major issues affecting the competitiveness of the U.S. renewable energy and energy efficiency industries.  An agenda will be available upon request by November 1, 2017.  Stakeholders interested in participating in the meeting must register with Victoria Gunderson (.(JavaScript must be enabled to view this email address)) by 5:00 p.m. (EST) on November 10, 2017.

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By Lauren M. Graham, Ph.D.

On August 28, 2017, the U.S. Department of Commerce (DOC) announced in the Federal Register that a preliminary determination had been issued in the antidumping (AD) and countervailing duty (CVD) investigations on biodiesel from Argentina and Indonesia.  DOC preliminarily determined that countervailable subsidies are being provided to producers and exporters of biodiesel from Argentina and Indonesia. The period of investigation for both countries is January 1, 2016, through December 31, 2016. 
 
Pursuant to Section 703(e)(1) of the Tariff Act of 1930, DOC preliminarily determined that critical circumstances exist with respect to imports of biodiesel from Indonesia for Musim Mas and Wilmar Trading.  Similarly, DOC preliminary determined that critical circumstances exist with respect to imports of biodiesel from Argentina for LDC Argentina and Vicentin, but do not exist with respect to all other exporters or producers not individually examined.  DOC will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of biodiesel from Argentina and Indonesia entered, or withdrawn from warehouse, for consumption, and to require a cash deposit equal to the subsidy rates indicated in the respective Federal Register notice.  For Indonesian companies not individually examined, DOC applied an “all-others” subsidy rate, which was calculated by weight averaging the calculated subsidy rates of the two individually examined company respondents. 
 
More information on the methodology and results of DOC’s analysis is available in the Preliminary Decision Memorandum, which is a public document on file in the Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).  DOC invites comments on the preliminary determinations from interested stakeholders.  Following DOC’s final determination, the International Trade Commission (ITC) will make its final determination within 45 days.

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By Lauren M. Graham, Ph.D.

On August 15, 2017, the U.S. Department of Commerce’s (DOC) International Trade Administration (ITA) announced in the Federal Register that the preliminary determination in the antidumping (AD) and countervailing duty (CVD) investigations on biodiesel from Argentina and Indonesia will be postponed.  A request to postpone the determinations was submitted by a petitioner on July 6, 2017, and, pursuant to Section 733(c)(1)(A) of the Tariff Act of 1930, ITA determined that there was no compelling reason to deny the request.  The preliminary determination will now be due by October 19, 2017, and the final determination will be due within 75 days of the issuance of the preliminary determination. 
 
ITCA previously postponed the determinations following a May 22, 2017, request from a petitioner, as reported in the Biobased and Renewable Products Advocacy Group (BRAG^®) blog post DOC Postpones Preliminary Determinations for Biodiesel AD/CVD Investigation.

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By Kathleen M. Roberts

On June 5, 2017, the U.S. Department of Commerce’s (DOC) International Trade Administration (ITA) announced in the Federal Register that the preliminary determination in the antidumping (AD) and countervailing duty (CVD) investigations on biodiesel from Argentina and Indonesia will be postponed.  The preliminary determination will be due by August 21, 2017, and the final determination will be due within 75 days of the issuance of the preliminary determination.  Pursuant to Section 703(b)(1) of the Tariff Act of 1930, a preliminary determination is due within 65 days of the initiation of a CVD investigation unless DOC receives a request to postpone the determination from a petitioner, which DOC received on May 22, 2017.  The notice states that the petition was granted since there was no compelling reason to deny the request.

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