Rule2024-12192
General Services Administration Acquisition Regulation; Reduction of Single-Use Plastic Packaging
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 6, 2024
Effective
July 8, 2024
Issuing agencies
General Services Administration
Abstract
The General Services Administration is amending the General Services Administration Acquisition Regulation to add a new provision and clause to identify single-use plastic free packaging availability for products under the Federal Supply Schedules with the goal of reducing single-use plastic waste.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 110 (Thursday, June 6, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 110 (Thursday, June 6, 2024)]
[Rules and Regulations]
[Pages 48330-48337]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-12192]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
48 CFR Parts 502, 538, and 552
[GSAR Case 2022-G517; Docket No. GSA-GSAR--2023-0028; Sequence No. 1]
RIN 3090-AK60
General Services Administration Acquisition Regulation; Reduction
of Single-Use Plastic Packaging
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The General Services Administration is amending the General
Services Administration Acquisition Regulation to add a new provision
and clause to identify single-use plastic free packaging availability
for products under the Federal Supply Schedules with the goal of
reducing single-use plastic waste.
DATES: Effective July 8, 2024.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Adina Torberntsson, Procurement Analyst, at <a href="/cdn-cgi/l/email-protection#bed9cddfccced1d2d7ddc7fed9cddf90d9d1c8"><span class="__cf_email__" data-cfemail="2e495d4f5c5e4142474d576e495d4f00494158">[email protected]</span></a> or
720-445-0390. For information pertaining to
[[Page 48331]]
status or publication schedules, contact the Regulatory Secretariat
Division at <a href="/cdn-cgi/l/email-protection#c780948695a2a094a2a487a0b4a6e9a0a8b1"><span class="__cf_email__" data-cfemail="88cfdbc9daedefdbedebc8effbe9a6efe7fe">[email protected]</span></a> or 202-501-4755. Please cite GSAR Case
2022-G517.
SUPPLEMENTARY INFORMATION:
I. Background
On December 26, 2023, the General Services Administration (GSA)
published a proposed rule to the Federal Register at 88 FR 88856 to
address single-use plastic (SUP) and packaging materials in the Federal
Supply Schedule (FSS). Prior to the proposed rule being published, an
Advanced Notice of Proposed Rulemaking (ANPR) was issued on July 7,
2022.\1\ Feedback from environmental organizations, other federal
agencies (to include federal scientists, industry associations and
advocates, Congressional members, and GSA's Federal Advisory Committee)
were all taken into consideration for the development of the proposed
rule.
---------------------------------------------------------------------------
\1\ 87 FR 40476.
---------------------------------------------------------------------------
The final rule provides definitions to the GSA Acquisition
Regulation (GSAR), as well as a provision and clause that will allow
FSS offerors to provide to agencies single-use plastic free (SUP free)
packaging.
II. Discussion and Analysis
A. Summary of Significant Changes
The final rule clarifies that an icon will be utilized in GSA's
acquisition platforms to identify SUP free packaging, regardless if it
is brand/product packaging or shipping packaging. A singular icon is
being added to provide flexibility in identifying the offered product.
The remaining text from the rule, to include the definitions, remains
the same.
B. Analysis of Public Comments
In summary, 45 public comments were received for the rule during
the comment period that lasted from December 26, 2023 through February
26, 2024. Commenters ranged from individuals, academia, industry,
industry associations, environmental organizations, and state
government offices.
The comments are highlighted below as they address ideas on
implementation, and raise concerns about environmental impact,
alternative approaches, cost, compliance and legal authority.
Implementation
Comment: Several commenters requested to phase out and/or
completely eliminate plastics, specifically focused on banning
polystyrene and plastic film, from the products sold on the FSS.
Response: The scope of the rule is seeking to incentivize through
marketing opportunities on the Federal Supply Schedule the reduction of
single-use plastic (SUP) packaging by providing an icon to easily
identify products which are SUP free for federal acquisition by
highlighting those products on the Schedule; seeking to ban these
products is outside the scope of this rulemaking.
Comment: A handful of commenters asked for third party verifiers as
part of the rule implementation to confirm the use of SUP free
packaging and provide more rule constraints.
Response: GSA did not accept this recommendation as it is outside
the scope of this rulemaking. Third party verification would add
regulatory burden and could discourage small businesses from
participating in the FSS program.
Comment: Multiple commenters asked for phased implementation of the
rule, with some specifically requesting mandatory applicability.
Response: The rule allows contracting offices to use their judgment
based on the requirements of individual acquisitions when deciding to
apply the clause and provision. Implementation guidance will be issued
once this rule is effective and can be found at the FSS refresh,\2\
which is located at: <a href="https://sam.gov/opp/88193aba7dfe499ea1e48cd303dea73b/view">https://sam.gov/opp/88193aba7dfe499ea1e48cd303dea73b/view</a>.
---------------------------------------------------------------------------
\2\ This action is also referred to as the MAS refresh with MAS
and FSS being used interchangeably.
---------------------------------------------------------------------------
GSA is not mandating FSS offerors provide SUP free packaging;
rather, it allows offerors to identify whether such packaging is
available to ordering agencies. GSA is not making it mandatory to
provide flexibility in solutions offered on the FSS.
Comment: One commenter asked for more restrictive language in the
clause to specify the format or structure for presenting price
information. The commentator stated that having a standardized format
would facilitate consistency and ease of comparison for ordering
activities.
Response: No change required. GSA already has a standardized format
as it relates to presenting price information. The submission of price
proposals is included in the Federal Supply Schedule Instructions to
Offerors. Offerors follow these instructions when submitting their
price proposals.
Comment: One commenter asked to include additional examples in the
definitions.
Response: This recommendation will be taken into consideration in
the agency's implementation instructions or frequently asked questions.
Comment: One commenter asked to include alternative packaging
examples.
Response: This recommendation will be taken into consideration in
the agency's implementation instructions or frequently asked questions.
Comment: Multiple commenters asked about a pilot program to address
plastic waste.
Response: GSA has had an ongoing initiative \3\ for the past three
(3) years to encourage innovation for sustainability in federal
acquisition within the agency, and will continue to pursue this program
in addition to this rule. While the program was not focused on plastic
waste specifically, it encourages the use of innovative contracting
solutions that address environmental issues.
---------------------------------------------------------------------------
\3\ GSA Acquisition Letter MV-21-10.
---------------------------------------------------------------------------
Comment: One commenter asked to limit the definition of SUP to
remove language referencing the disposal of SUP.
Response: This comment is not adopted as the proposed change to the
language would reduce the impact of the rule and further confuse GSA
offerors who are trying to implement the rule. The rule is not about
the disposal, or recycling if a product under the right conditions
could be recyclable, it is merely about reduction.
Comment: Multiple commenters asserted that the rule will diminish
the efficiency of federal procurement.
Response: It is unclear what the basis is for how the rule would
diminish the efficiency of federal procurement. Providing an icon for
SUP free packaging will enhance procurement efficiency by providing an
additional alternative, increasing visibility, and permitting the buyer
to consider any price addition or savings.
Comment: One commenter asked for the meaning of the term
``competent and reliable evidence.''
Response: This plain language term is utilized to provide the
Contracting Officer the flexibility to determine what is acceptable
from a pragmatic perspective. Guidance for contracting officers is also
provided in GSAR 552.238-78 Identification of Products that Have
Environmental Attributes and thus is not new to environmental
purchasing.
Environmental Impacts
Comment: Multiple commenters, including mass mailing submissions,
provided feedback that further commitments were needed to maximize
[[Page 48332]]
environmental impact. This messaging was echoed by multiple
organizations and other commenters asking GSA to do more.
Response: The FSS program is GSA's premier contract vehicle,
offering thousands of contractors the opportunity to do business with
the federal government. The rule encourages industry to offer SUP free
packaged products in their FSS contracts that agencies can buy. The
rule is not intended to ``ban'' or regulate any particular item. For
purposes of this rule, GSA is asking to be offered, or made available,
SUP free packaging. For this reason, the comments that called for
either the ban, or removal of products from the FSS are outside of the
scope of this rule. The anticipated benefit of the rule is the
coordination of industry and FSS ordering officials to reduce the
single-use plastic waste stream. Plastic packaging accounts for 40
percent of all plastic produced.\4\ The reduction of plastic packaging
waste is impactful because it is an element of multiple items offered
on the FSS.
---------------------------------------------------------------------------
\4\ Fast Facts About Plastic Pollution, National Geographic, see
https://www.nationalgeographic.com/science/article/plastics-facts-
infographics-ocean-
pollution#:~:text=40%20percent%20of%20plastic%20produced,just%20once%
20and%20then%20discarded.
---------------------------------------------------------------------------
Comment: Multiple commenters recommended that GSA should follow the
expert advice of its GSA Acquisition Policy Federal Advisory Committee
to develop policies and a strategy with numerical goals to phase out
all SUP products across GSA, including plastic bags, utensils, food
ware, and beverage bottles. The commenters further requested that GSA
require the use of SUP free or reusable packaging when federal agencies
purchase products using GSA contracts, incentivize the products in
federal agencies' purchases, and share this information publicly.
Response: GSA's Acquisition Federal Advisory Committee has made
several recommendations.\5\ This rule is in line with their
recommendations, specifically to address single-use plastic waste
through rulemaking. GSA will continue evaluating all of the
recommendations from the Committee and will be taking additional
implementation actions.
---------------------------------------------------------------------------
\5\ GSA Acquisition Policy Federal Advisory Recommendation
Reports.
---------------------------------------------------------------------------
Alternative Approaches
Comment: Several commenters asked for the withdrawal of the rule,
and instead requested a mandatory ban of SUP products from the FSS, in
addition to a FAR change.
Response: This comment is not adopted. Requiring a mandatory ban on
single use plastic products is outside of the scope of the rule.
Comment: Multiple commenters included comments to encourage life
cycle cost analysis versus limitation of SUP. Comments also included
information on the recycling of plastics, to include chemical
recycling.
Response: The rule incentivizes suppliers to package goods without
SUP packaging. Buyers of commercial products through GSA
Advantage![supreg] or through the FSS are not likely to use life cycle
cost analysis. This rule is not scoped to address waste management.
Costs
In the comments received, cost was addressed not numerically, but
in the overarching concept of efficiency as it relates to the market.
Comment: A commenter asked GSA to recognize reusable packaging as
an alternative to SUP free packaging.
Response: No change required. The definition of SUP free includes
reusable packaging that is typically refilled or otherwise reused by
the producer. To be clear, packaging that may be reusable, but is not
typically reused, would not be considered here as it is outside the
scope of the rule.
Comment: A commenter asserted that there would be extra costs for
the production, transportation, and disposal as a result of the rule.
Response: The rule is voluntary and provides additional opportunity
for Federal Supply Schedule contractors to promote their products that
have SUP free packaging.
Comment: A commenter provided a statement of support for the rule
having a voluntary incentive based approach. This comment includes a
request to clarify whether the icon is plural or singular.
Response: Noted. The final rule is revised to clarify one icon is
anticipated.
Compliance
Comment: One commenter questioned if the ``SUP free'' term, under
the guidance provided by the Federal Trade Commission (FTC), would be
determined to be a claim of general environmental benefit, and in turn
would require verifiable substantiation of the claim such as life cycle
data.
Response: No. The FTC Green Guides \6\ and ISO 18601:2013 are
referenced in developing the definition. GSA is not requiring
sustainable packaging, which would require some sort of an assessment
as to contents. Instead the agency is asking for the absence of
something, in this case single-use plastic, from packaging. The result
will be an icon in GSA Advantage![supreg], not a new ecolabel on the
material itself. While the FTC Green Guides are referenced in
developing the definition, the FTC process to evaluate environmental
marketing claims is a separate process.
---------------------------------------------------------------------------
\6\ <a href="https://www.ftc.gov/sites/default/files/documents/federal_register_notices/guides-use-environmental-marketing-claims-green-guides/greenguidesfrn.pdf">https://www.ftc.gov/sites/default/files/documents/federal_register_notices/guides-use-environmental-marketing-claims-green-guides/greenguidesfrn.pdf</a>.
---------------------------------------------------------------------------
Authority
Comment: One commenter questioned GSA's authority to ban SUP,
drawing parallel to GSA's 2020 promulgated regulations that barred the
federal government from buying goods or services from any company that
uses products from Huawei Technologies and several other Chinese
companies.
Response: This rule is not a ban. The law and regulations
underlying the products that utilized Huawei Technologies differs from
this rule, and was instituted by the FAR Council, of which GSA is one
member. GSA has authority to govern the Federal Supply Schedule program
under Title 41 of the United States Code (41 U.S.C. 152(3)), including
this voluntary SUP free packaging policy.
Comment: One commenter questioned GSA's authority to issue plastic
waste regulations, asking if the scope of authority for GSA to issue
this rule is exceeded as the rule focuses less on effective and
efficient government procurement and more on green policies.
Response: GSA is authorized to issue regulations, including the
GSAR, to manage the relationship between GSA and our contractors in
accordance with 40 U.S.C. 121. GSA is further authorized to issue the
rule in accordance with 41 U.S.C. 152(3), which provides GSA the
authority to manage the Multiple Award Schedules Program, also referred
to as the FSS Program. GSA is further empowered to issue the rule in
accordance with 40 U.S.C. 501-502 which provides GSA authorization for
procurements for executive agencies and other entities, including the
FSS Program. This rule will enhance the effectiveness and efficiency of
Government contracts through providing an icon identifying when SUP
free packaging is being used in a procurement. The FSS Program is made
up of multiple contracts in which GSA asks the contractors to ``offer''
different commercial supplies and services to the Government. In turn
the intent of this rule is to encourage these contractors to offer SUP
free packaging. This rule is
[[Page 48333]]
not a ban, it is merely providing an opportunity for GSA industry
partners to offer SUP free packaging and to make that offering visible.
Comment: Multiple commenters asked that GSA specifically ban
biobased plastics, and provide a change to the FAR.
Response: GSA declines to adopt this comment. This comment is
outside of the scope of this rule. Biobased plastic products fall under
the BioPreferred program which is administered by the United States
Department of Agriculture (USDA) and is anchored by the Farm Bill.\7\
In addition, this comment is outside the scope of GSA's independent
regulatory authority. A FAR change would require approval of the entire
FAR Council (i.e., DOD, NASA and GSA).
---------------------------------------------------------------------------
\7\ 2002 Farm Bill.
---------------------------------------------------------------------------
III. Expected Impact of the Rule
There were no public comments received that are specific to the
economic impact statement of the rule. As such, the analysis remains
the same as before. This analysis includes both the cost and benefit
impacts to both the public and GSA. The analysis includes identifying
relevant products, developing a distinguishable icon, and developing
internal guidance to help contracting activities learn how to apply
searching for the icon to procure the environmentally preferable
products.
The rule is specific to GSA's FSS program, with the intent of
significantly reducing the single-use plastic waste stream. When
voluntarily pursued, this action will reduce the Government's waste
generation, and potentially save industry partners money by having them
reduce unnecessary packaging as described in some of the high-profile
case studies mentioned in section I.D. of the Proposed Rule document
``Industry Practices and Consumer Trends''. It is expected that by
reducing the packaging's overall bulk, industry will be better
positioned to ship their items efficiently and effectively. Reducing
excessive packaging has proven effective in increasing the amount of
goods that can be loaded for transportation and is therefore helpful in
the distribution of products.
General Compliance Requirements
The rule will enable GSA to incentivize contractors to voluntarily
provide SUP free packaging information through GSA's online system. The
estimated cost per contractor is $2,087. The calculations as to how GSA
got to this estimate are further described later in section Summary of
Public Costs.
The SUP free packaging identification provision allows FSS
contractors to identify products that are either packaged and/or
shipped without single-use plastic packaging. The rule also includes a
clause for the contractor that allows for either a price premium or
discount for SUP-free packaging when such a premium or discount is
consistent with their commercial practice.
Benefits
This rule is intended to benefit GSA and customer agencies by
reducing the single-use plastic waste stream.
The Federal Government is the world's single largest purchaser of
goods and services, spending over $694 billion \8\ in contracts in
Fiscal Year 2022 alone. Public procurement can drive innovation and be
a catalyst for adoption of new norms and global standards. Since the
FSS is the premiere entry point for commercial contractors to sell
products (and services and solutions) to the Federal Government, the
goal is to encourage the adoption of a new procurement norm to reduce
single-use, unrecyclable, difficult to recycle, or frequently littered
products plastic waste. Practices introduced or highlighted for the FSS
can easily be adopted into other Government contracts.
---------------------------------------------------------------------------
\8\ A Snapshot of Government-Wide Contracting for FY, April 15,
2023, <a href="https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2022">https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2022</a>.
---------------------------------------------------------------------------
Overall, the rule is intended to benefit the public by encouraging
positive behaviors in reducing waste, and reducing product costs by
building in efficiencies. The rule is an initial step to continue to
work with industry partners in addressing the intersection of waste
materials and logistical efficiency in providing better packaging. This
is an important first step in working with our suppliers in developing
sustainable solutions together to meet mutual future goals.
Estimated Public Costs
The following is a summary of the estimated cost impacts to the
public in addressing this new requirement to reduce single-use plastic
packaging. These costs are incurred one-time up-front and are not
recurring to participating contractors.
1. Regulatory Familiarization
Regulatory familiarization includes the amount of time and effort
it takes a company to become familiar with the requirements of the
rule. The identification provision and availability clause speak to the
behaviors that GSA wants to see industry adopt when doing business
under GSA contracts. The time to read over and digest the information
provided in this rule is negligible. The provision is similar to other
self-identifying provisions utilized in Government acquisition.
For this reason, the regulations require more of a familiarization
in learning how to register in the electronic tool described during
their contract's refresh; the assumption is 1 hour of time. GSA
calculated the time based on the agency's subject matter expertise. We
utilized the total number of Federal Supply Schedule contracts. The
individual cost per each FSS contractor would be $89.96 for one hour of
time at a GS-12 Step 5 rate.\9\ The upper bound total cost for
regulatory familiarization if all FSS contractors were to participate
would equal $1,259,440.\10\
---------------------------------------------------------------------------
\9\ OPM Pay Table 2024 Rates Rest of United States. We assume
this work is done by an employee equivalent to the GS-12 step 5
level. The hourly wage at this level is $44.98 which we adjust
upward by 100% to $89.96 to account for fringe benefit and overhead
costs.
\10\ The formula to calculate this cost is 14,000 contracts
multiplied by the per contractor cost of $89.96.
---------------------------------------------------------------------------
2. SUP Free Packaging Identification
The costs to comply with the SUP free packaging identification
provision includes time for the offeror to analyze their product
catalog, identify existing SUP free offerings, identify potential new
(SUP) packaging offerings, and complete the provision questions.
The anticipated average time, based on GSA's knowledge of the FSS
program, to analyze the existing product catalog is 1 hour. This
assertion is applied, since no industry feedback on this calculation or
other time calculations were received. The anticipated average time to
identify existing and potential new SUP free packaging offerings is 1
hour. The anticipated time to answer the provision is 0.1 hours. The
individual cost per each FSS contractor would thus be $188.92 for 2.1
hours of time at a GS-12 Step 5 rate. The upper bound total cost for
SUP free packaging identification if all FSS contractors were to
participate would equal $2,644,824.
3. SUP Free Packaging Availability
The costs to comply with the SUP free Packaging Availability clause
includes time for the offeror to research and determine price premiums
or discounts for SUP free offerings and submit the information.
The anticipated average time to research and determine the
applicable pricings is 20 hours. The anticipated
[[Page 48334]]
time to complete the submission is 0.1 hours. The individual cost per
each FSS contractor would thus be $1,808.20 for 20.1 hours at a GS-12
Step 5 rate. The upper bound total cost for complying with the SUP free
Packaging Availability clause if all FSS contractors were to
participate would equal $25,314,744.
4. Anticipated Market Shifts
As described in the proposed rule \11\ there is a strong indication
that a reduction in single-use plastic improves the marketability of a
company and positively displays a company's values. As explained in the
proposed rule, multiple states have adopted policies to address plastic
pollution, and consumer trends are favoring a reduction in SUP. As the
fifth largest economy in the world by GDP, California's legislation is
a great indicator that the market can react to a reduction in single-
use plastic packaging. Multiple states have followed suit with similar
legislative actions to reduce single-use plastic packaging, including
Connecticut, Delaware, Hawaii, Maine, New York, Oregon, and
Vermont.\12\ With the market trending in this direction, accepting this
change may assist GSA FSS contractors in their overall marketing
efforts within the private sector as well.
---------------------------------------------------------------------------
\11\ 88 FR 88856 see section Industry Practices and Consumer
Trends.
\12\ https://www.ncsl.org/environment-and-natural-resources/
state-plastic-bag-
legislation#:~:text=Eight%20states%E2%80%94California%2C%20Connecticu
t%2C,banned%20single%2Duse%20plastic%20bags.
---------------------------------------------------------------------------
Given the volume of purchases made through the FSS every year by
federal, state, local, tribal governments, and other eligible buyers
for commercial products, services, and other solutions, this rule is
likely to effect supply and demand shifts in plastics markets.
The importance of this rule being voluntary is it allows the FSS
contractors, who are predominantly small businesses, an opportunity to
consider how to implement these market changes. By focusing on
packaging, it is an important first step to address plastic in one area
of their supply chain. The rule encourages operational decisions to
reduce plastic waste, and ultimately will influence the market by
reducing offerings that contain single-use plastic packaging waste.
Federal agencies and FSS-eligible buyers are seeking to eliminate
their plastic waste, so those agencies will be ones to seek out this
icon in helping them accomplish their goals. The rule will support the
market shift by using the new SUP free icon as an important
discriminator when buyers are making purchasing decisions. FSS
contractors who adopt this policy change will become more marketable
than their peers who decline this voluntary measure. The resulting
competitive disadvantage to contractors that initially choose not to
adopt this rule's policy will likely incentivize these firms to
reconsider adoption. This rule could also create positive spillovers as
non-FSS contracting firms adopt similar policies to compete with FSS
contractors in non-FSS markets.
5. Summary of Public Costs
The estimated overall cost per contractor who chooses to
participate is $2,087.\13\ The upper bound total estimated public cost
of compliance with this rule, if all FSS contractors adopted this
voluntary action, would be $29,219,008.\14\ We assume as a lower bound
that 25 percent of FSS contractors will adopt this voluntary action, in
which case the lower bound total estimated public cost would be one
quarter of the upper bound, or $7,304,752.
---------------------------------------------------------------------------
\13\ This overall per contractor cost is the sum of the
regulatory familiarization cost of $89.96, the SUP Free Packaging
Identification cost of $188.93, and the availability clause
compliance cost of $1,808.30.
\14\ This total cost is the sum of the regulatory
familiarization cost of $1,259,440, the SUP Free Packaging
Identification cost of $2,644,824, and the availability clause
compliance cost of $25,314,744.
---------------------------------------------------------------------------
Once recorded, there is no anticipated additional cost during
subsequent years of performance unless the offeror is providing
additional SUP free packaging options. However, this cost would be
absorbed with the cost the contractor would experience any time that
they modified their FSS price list, which they would do regardless if
the rule was issued. The anticipated time for this action is so minimal
there would not be additional calculated cost associated with it.
With the FSS contractors' identification of SUP free packaging
being voluntary, the indirect benefits to adopting this change far
outweigh the costs. FSS contractors who voluntarily comply will have a
competitive advantage by being able to market themselves utilizing the
new SUP free packaging icon on GSA Advantage![supreg]. The intent is
for the market to then shift to more SUP-free packaged products to
reduce the SUP waste stream. FSS contractors are able to invest in this
change which may provide greater visibility on GSA's electronic tools
to Federal agencies and FSS-eligible buyers. With the market trending
in this direction, accepting this change may assist GSA FSS contractors
in their overall marketing efforts within the private sector as well.
GSA Costs
1. Update to GSA e-Tools
GSA reviewed various electronic tools that could support this rule.
The agency plans to utilize existing online tools such as GSA
Advantage![supreg] which has the benefit of keeping costs low by
utilizing IT infrastructure that already exists, and the added benefit
of industry partners knowing how to utilize the system. During public
comment, no alternative GSA tools that would be more beneficial to
utilize were identified.
Capitalizing on the user interface knowledge, for both the GSA and
industry, is pivotal in being able to implement the rule quickly.
The estimated hours to update the existing systems is 800 hours
(assuming 5 employees working full time on this project for 4 weeks) at
a GS-12, step 5 \15\ equivalent rate. The total for this effort would
equal $71,968 (800 x $89.96), which is a fixed cost for the Government
regardless of the number of FSS contractor participants.
---------------------------------------------------------------------------
\15\ 2023 Rest of US, 12 Step 9 x 2.0 fringe = $89.96; the rate
is adjusted upward by 100% to adjust for overhead and benefits.
---------------------------------------------------------------------------
2. Workforce Familiarization
GSA contracting officers will need to become familiar with the new
policy at GSAR 502, 538, and 552. The GSA contracting officers will
need to review these changes, interpret them, and apply them as
prescribed.
GSA contracting officers are required to remain current on policies
for procurement, such as changes to the GSAR. Review of such policy
changes are considered a part of the normal duties of contracting
personnel. As such, this analysis does not quantify the time and effort
for contracting officers to become familiar with the rule. It is
acknowledged that there is time and effort involved for the acquisition
workforce to become familiar with the rule or the tools available and
to assist contractors with compliance, though those potential burden
hours and costs are minimal.
3. SUP Free Packaging Material Costs
As a voluntary measure, GSA assumes that price premiums and
discounts for SUP free packaging will average out to zero additional
cost. This assumption was not disputed during public comments.
[[Page 48335]]
4. Summary of GSA Costs
The total estimated GSA cost of implementation of this rule would
be $71,968 \16\ regardless of the number of industry participants.
---------------------------------------------------------------------------
\16\ GS-12 Step 5 at $89.96 per hour x 800 hours = $71,968.
---------------------------------------------------------------------------
5. Summary of Overall Costs
The overall total cost, including both Public and Government costs,
is outlined in the table below. Public costs are presented as a range
to reflect uncertainty around voluntary participation. We calculate the
upper bound of public costs by assuming all FSS contractors
participate, and we calculate the lower bound of public costs by
assuming only 25 percent of FSS contractors participate.
----------------------------------------------------------------------------------------------------------------
Number of Rate per Cost per Number of
Action hours hour participant participants Total costs
----------------------------------------------------------------------------------------------------------------
Public Costs (Maximum)...................... ......... ......... $2,087 14,000 $29,219,008
Regulatory Familiarization.................. 1 89.96 89.96 14,000 1,259,440
SUP Free Packaging Identification........... 2.1 89.96 188.92 14,000 2,644,824
SUP Free Packaging Availability............. 20.1 89.96 1,808.20 14,000 25,314,744
Public Costs (Minimum)...................... ......... ......... 2,087 3,500 7,304,752
Regulatory Familiarization.................. 1 89.96 89.96 3,500 314,860
SUP Free Packaging Identification........... 2.1 89.96 188.92 3,500 661,206
SUP Free Packaging Availability............. 20.1 89.96 1,808.20 3,500 6,328,686
Government Costs (Fixed).................... ......... ......... 89.86 5 71,968
System Updates.......................... 800 89.86 89.86 5 71,968
Total Rule Maximum.................. ......... ......... ............ .............. 29,290,976
Total Rule Minimum.................. ......... ......... ............ .............. 7,376,720
----------------------------------------------------------------------------------------------------------------
Alternatives Considered
When researching how to address this rule, several solutions were
considered. After publishing the ANPR, it was determined that a rule
that focused on reduction is preferable to alternatives such as
recycling or mandatory elimination of plastic packaging.
GSA's mission is unrelated to environmental regulated programs such
as recycling. Additionally, the recycling programs that GSA utilizes
vary and are governed at local, municipal levels where the agency's
offices are located.
Further, a rule seeking a mandatory elimination of plastic
packaging may not be a feasible solution depending on what is being
procured. For some supplies, such as healthcare products, plastic
packaging can be a beneficial material. This rule is not seeking
plastic elimination as users of FSS may have a need for a product
packaged with single use plastic, so a broad elimination may not be
beneficial.
While there are identified alternatives, described above as
recycling or elimination, to reach a sustainable outcome regarding
packaging, GSA is aware of the potential impact of issuing a broad rule
without providing space for industry to pivot. Given the different
types of products that GSA procures, a rule asking for changes to
packaging that provides flexibility is the best method to keep costs
down, while reaching a sustainable solution.
IV. Executive Order 12866, 13563 and 14094
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
E.O. 14094 Modernizing Regulatory Review \17\ supplements and reaffirms
the principles, structures, and definitions governing contemporary
regulatory review established in E.O. 12866 and E.O. 13563.
---------------------------------------------------------------------------
\17\ <a href="https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review">https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review</a>.
---------------------------------------------------------------------------
OIRA has determined this rule to be a significant regulatory
action. As a significant rule, this action is subject to review under
section 6(b) of E.O. 12866, Regulatory Planning and Review, dated
September 30, 1993.
V. Congressional Review Act
OIRA has determined that this rule is not a major rule under 5
U.S.C. 804(2). Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the
Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a ``major rule'' may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. The General Services Administration will
submit a report containing this rule and other required information to
the U.S. Senate, the U.S. House of Representatives, and the Comptroller
General of the United States. A major rule cannot take effect until 60
days after it is published in the Federal Register.
VI. Regulatory Flexibility Act
GSA does not expect this rule to have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. because the rule
change allows for many different solutions to the offeror as to how to
propose a solution that considers transitioning from plastic packaging
to SUP free packaging.
GSA has prepared a Final Regulatory Flexibility Analysis (FRFA)
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
The FRFA is summarized as follows:
The rule will apply to large and small businesses. For purposes
of this assessment, information generated from the FAS Schedule
Sales Query Plus (SSQ+) has been used as the basis for estimating
the number of contractors that may be involved. There are
approximately 14,000 FSS contractors, of which over 12,000 (85
percent) were small business entities. There were no comments
received that would indicate that the rule places small businesses
at a disadvantage, if anything there were comments indicating that
the rule benefits small businesses ability to promote themselves on
the Schedule.
The rule includes a provision for offerors to self-identify if
they include single-use plastic (SUP) free packaging. The manner in
which the offeror is answered, is then visible in a GSA electronic
tool, which is provided by the agency. There are no fees associated
with the identification tool, and the provision consists of two
questions.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
[[Page 48336]]
There are no known alternatives to this rule which would
accomplish the stated objectives. Rule alternatives that could meet
similar objectives are not advantageous to either the GSA or
industry due to excessive cost and burden. An alternative would be
to mandate specific types of packaging. Depending on the industry,
there may be unintended cost consequences for a total change in
packaging (for example transitioning from plastic to glass, the
unintended cost might be due to transportation of a heavier
product). For this reason the rule provides flexibility to industry
to offer the Government solutions on reducing waste.
The Regulatory Secretariat will be submitting a copy of the FRFA to
the Chief Counsel for Advocacy of the Small Business Administration. A
copy of the FRFA may be obtained from the Regulatory Secretariat
Division.
VII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 3501) does apply
because the rule contains information collection requirements. The
existing Office of Management and Budget (OMB) Control Number 3090-0303
titled ``Federal Supply Schedule Solicitation Information'' will be
updated to reflect the information to be collected through GSAR
552.238-118 and GSAR 552.238-119.
A. Public Reporting Burden
Public reporting burden specific to this rule and the revision to
collection of information previously approved is voluntary and includes
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information.
GSAR 552.238-118
The annual reporting burden is estimated as follows, based on all
FSS contract holders. This is if all 14,000 contractors participate
providing a response within the first year, with the time estimate
based on time needed to submit the response to the provision:
Respondents: 14,000.
Responses per Respondent: 1.
Total Responses: 14,000.
Hours per Response: 2.
Total Burden Hours: 28,000.
GSAR 552.238-119
The annual reporting burden is estimated as follows:
Respondents: 14,000.
Responses per Respondent: 1.
Total Responses: 14,000.
Hours per Response: 2.
Total Burden Hours: 28,000.
Requesters may obtain a copy of the information collection
documents from the GSA Regulatory Secretariat Division, by calling 202-
501-4755 or emailing <a href="/cdn-cgi/l/email-protection#2d6a7e6c7f484a7e484e6d4a5e4c034a425b"><span class="__cf_email__" data-cfemail="ce899d8f9caba99dabad8ea9bdafe0a9a1b8">[email protected]</span></a>. Please cite ``Information
Collection 3090-0303'', in all correspondence.
List of Subjects in 48 CFR Parts 502, 538 and 552
Government procurement.
Jeffrey A. Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of
Government-wide Policy, General Services Administration.
Therefore, GSA amends 48 CFR parts 502, 538, and 552 as set forth
below:
0
1. The authority citation for 48 CFR parts 502, 538, and 552 continues
to read as follows:
Authority: 40 U.S.C. 121(c).
PART 502--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 502.101 by adding in alphabetical order the
definitions of ``Packaging'', ``Plastic'', ``Single use plastic
(SUP)'', and ``Single-use plastic (SUP) free packaging'' to read as
follows:
502.101 Definitions.
* * * * *
Packaging means the material used to protect an item. Packaging
includes, but is not limited to: brand packaging, grouped packaging,
shipping packaging, ancillary packaging, and redundant packaging.
(1) Brand packaging, sales packaging or primary packaging means
packaging intended to provide the user or consumer with the individual
unit of the product, such as plastic casing.
(2) Grouped packaging or secondary packaging means packaging
intended to bundle, sell in bulk, brand, or market/display products.
(3) Shipping packaging means packaging that serves as protection
for the goods to ensure safe transport to the end customer, including:
(4) Ancillary packaging or transport packaging or tertiary
packaging means packaging intended to secure the product, such as
packing peanuts, wrapping materials, or molded materials. Ancillary
packaging (or all shipping packaging) is typically outside of brand
packaging.
(5) Redundant packaging or unnecessary packaging means packaging
that does not add any measurable protection to the supply being
shipped, such as multiple layers of bubble wrap to an already durable
product that is encased in a cardboard box. An example of this is a
home testing kit with all plastic components already packaged in a
cardboard box with cardboard inserts to absorb shock, that is then
shipped in multiple layers of bubble wrap. In this example the bubble
wrap is the redundant single-use plastic packaging.
Plastic means a synthetic or semisynthetic material chemically
synthesized by the polymerization of organic substances that can be
shaped into various rigid and flexible forms, and includes coatings and
adhesives. ``Plastic'' excludes natural rubber or naturally occurring
polymers such as proteins or starches.
Single-use plastic (SUP) packaging means any plastic used for the
containment, protection, handling, delivery, or presentation of goods
by a producer for a consumer with the intent of being used once and
then discarded, recycled or disposed of immediately after its contents
have been used or unpackaged, and typically not refilled or otherwise
reused by the producer. Packaging includes, but is not limited to brand
packaging, grouped packaging, shipping packaging, ancillary packaging,
and redundant packaging.
Single-use plastic (SUP) free packaging means Single-use plastic
(SUP) free packaging means product or shipping containment materials
free of single-use plastic. Other attributes of single-use plastic free
packaging may include the following: use of minimal materials, will be
reused multiple times, or produces less emissions compared to
traditional manufacturing or distribution. These additional attributes
alone do not qualify as SUP free. Examples may include, but are not
limited, to corrugated cardboard, paper products, and paper backed
tape.
PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING
0
3. Amend section 538.273 by--
0
a. Adding paragraph (a)(4);
0
b. Adding paragraph (d)(40); and
0
c. Removing from paragraph (e) the word ``clause''.
The additions read as follows:
538.273 FSS solicitation provisions and contract clauses.
* * * * *
(a) * * *
(4) 552.238-118, Single-use Plastic Free Packaging Identification.
* * * * *
(d) * * *
(40) 552.238-119, Single-use Plastic Free Packaging Availability.
* * * * *
[[Page 48337]]
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Amend section 552.238-88 by--
0
a. Revising the date of the clause; and
0
b. Adding paragraph (c).
The revision and addition read as follows:
552.238-88 GSA Advantage![supreg].
* * * * *
GSA Advantage![supreg] (Jul 2024)
* * * * *
(c) Single use plastic (SUP) free packaging icon. Contractors
are encouraged to utilize the GSA Advantage![supreg] single-use
plastic (SUP) free packaging icon when applicable (see 552.238-118).
The offeror may include in their price list if the contractor is
providing SUP-free packaging (either for shipping or as part of the
product packaging) at either a price premium or discount (see
552.238-119).
(End of clause)
0
5. Add section 552.238-118 and 552.238-119 to read as follows:
552.238-118 Single-use Plastic (SUP) Free Packaging Identification.
As prescribed in, 538.273(a) insert the following provision:
Single-Use Plastic Free Packaging Identification (July 2024)
(a) Single-use plastic free packing promotions. Ordering
activities may focus their GSA Advantage![supreg] search on the
designated icon and price to meet climate objectives. Contractors
who want to be considered must include SUP free packaging as defined
in 502.101.
(b) Procedures. Offerors may complete the information in
paragraph (c) of this provision when the resulting contract includes
supplies or products.
(1) SUP free brand packaging. Schedule contractors may
incorporate this information as part of their Schedule price list
once the products that utilize SUP free brand packaging are
incorporated under their Schedule contract, prior to competing for
an order for the identified product.
(2) SUP free shipping packaging. If the offeror is a reseller
who is unable to address the brand packaging, but would like to
pursue the icon for SUP free shipping packaging, they may identify
this availability.
(c) Optional identification submission. In order to be
considered for the designated icon noted in paragraph (d) of this
provision, the offeror must provide the following information.
(1) SUP free brand packaging. The offeror identifies that some
or all supplies delivered under a contract resulting from this
solicitation __ will use SUP free brand packaging. SUP free brand
packaging where applicable should be included in the offer's price
list.
(2) SUP free shipping packaging.
(i) The offeror identifies that some or all the supplies to be
delivered under a contract resulting from this solicitation __ will
use only SUP free shipping packaging. SUP free shipping packaging
where applicable should be included in the offer's price list.
(ii) If the offeror responded ``will'' in paragraph (c)(2)(i) of
this provision, the offeror identifies that the SUP free shipping
packaging __ does need to be requested by the ordering official.
(d) Identification standards. SUP free packaging icon for the
types identified in paragraph (c) of this provision, will be
available on GSA Advantage![supreg], as applicable.
(e) Verification of SUP free packaging. An offeror, in
identifying an item with SUP free packaging, must possess evidence
or rely on a reasonable basis to substantiate the claim. The
Government will accept an offeror's claim of SUP free packaging on
the basis of possession of competent and reliable evidence. For any
test, analysis, research, study, or other evidence to be ``competent
and reliable,'' it must have been conducted and evaluated in an
objective manner, using procedures generally accepted in the
profession to yield accurate and reliable results.
(End of provision)
552.238-119 Single-use Plastic (SUP) Free Packaging Availability.
As prescribed in 538.273(d), insert the following clause:
Single-Use Plastic (SUP) Free Packaging Availability (July 2024)
(a) Definitions. As used in this clause--
Single-use plastic (SUP) packaging means any plastic used for
the containment, protection, handling, delivery, or presentation of
goods by a producer for a consumer with the intent of being used
once and then discarded, recycled or disposed of immediately after
its contents have been used or unpackaged, and typically not
refilled or otherwise reused by the producer. Packaging includes,
but is not limited to brand packaging, grouped packaging, shipping
packaging, ancillary packaging, and redundant packaging.
Single-use plastic (SUP) free packaging means product or
shipping containment materials free of single-use plastic. Other
attributes of single-use plastic free packaging may include the
following: use of minimal materials, will be reused multiple times,
or produces less emissions compared to traditional manufacturing or
distribution. These additional attributes alone do not qualify as
SUP free. Examples may include, but are not limited, to corrugated
cardboard, paper products, and paper backed tape.
(b) General. The Contractor, in connection with this contract,
is encouraged to--
(1) Evaluate their products for redundant or unnecessary
packaging that can be eliminated without affecting quality.
(2) Package all products for shipment according to the
Government's instructions or, if there are no instructions, in a
manner sufficient to ensure that the products are delivered in
undamaged condition with as little plastic waste material as
possible.
(3) Limit the use of plastic packaging materials that have a
high likelihood of not being reused or recycled, as appropriate
(e.g., plastic casing or wrapping).
(4) Adopt SUP free packaging to the maximum extent practicable,
as appropriate.
(c) Procedures.
(1) Price premiums and discounts. For any single-use plastic
(SUP) free packaging identified per 552.238-118, Single-use Plastic
(SUP) Free Packaging Identification, the Contractor may include in
the submitted price list (see the Schedule, also referred to as MAS,
solicitation instructions for submitting price list SUP free
packaging). The submitted FSS contract price list may include a
separate means of displaying information regarding product
packaging. If the Contractor is providing SUP free packaging at
either a price premium or discount, this should be clearly
identified in the submitted price list.
(2) Submission requirements. As additional SUP free packaging
becomes available, the Contractor is encouraged to notify GSA of
these changes, and is responsible for keeping all electronic catalog
data current.
(3) Identification of SUP free packaging. For easy
identification of SUP free packaging, once available, GSA will use a
SUP free packaging icon in GSA Advantage![supreg].
(i) Offerors who provide SUP free packaging and want to benefit
from the GSA Advantage![supreg] SUP free packaging icon must provide
the information required in 552.238-118, Single-use Plastic (SUP)
Free Packaging Identification.
(ii) The Contractor is encouraged to place the GSA logo and GSA
Advantage![supreg] SUP free packaging icon on their website and FSS
price list for applicable supplies, see <a href="https://www.gsa.gov/logos">https://www.gsa.gov/logos</a>.
If the Contractor elects to use the GSA logo or icon, the website
must clearly distinguish between those items awarded on the GSA
contract and any other items offered by the Contractor on an open
market basis.
(d) Reliability. Accuracy of information and computation of
prices for this clause is the responsibility of the Contractor. In
addition to the other remedies available in the contract, the
remedies may include, but are not limited to, the following:
(1) If SUP free packaging is provided at a higher rate but
different packaging is received, the Government may pursue
corrective action.
(2) If SUP free packaging is utilized, but the product received
is damaged, the Contractor shall replace the item, refund the item,
or the Government may pursue corrective action.
(3) Inclusion of incorrect information in the price list
regarding SUP free packaging may cause the Contractor to correct and
resubmit the price list.
(4) Failure to correct applicable information for this clause,
may constitute sufficient cause for termination, pursuant to FAR
52.212-4, Contract Terms and Condition-Commercial Products and
Commercial Services, or remedies as provided by law.
(End of clause)
[FR Doc. 2024-12192 Filed 6-5-24; 8:45 am]
BILLING CODE 6820-61-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on June 6, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.