[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Proposed Rules]
[Pages 88856-88863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27942]


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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: Proposed rule.

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SUMMARY: The General Services Administration is proposing to amend the 
General Services Administration Acquisition Regulation (GSAR) to add a 
new provision and clause to identify single-use plastic free (SUP-free) 
packaging availability for products under the Federal Supply Schedules 
with the goal of reducing single-use plastic packaging.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at the address shown below on or before 
February 26, 2024 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to GSAR Case 2022-G517 to: 
Regulations.gov: https://www.regulations.gov via the Federal 
eRulemaking portal by searching for ``GSAR Case 2022-G517''. Select the 
link ``Comment Now'' that corresponds with GSAR Case 2022-G517. Follow 
the instructions provided at the ``Comment Now'' screen. Please include 
your name, company name (if any), and ``GSAR Case 2022-G517'' on your 
attached document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR 
FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    Instructions: Please submit comments only and cite GSAR Case 2022-
G517, in all correspondence related to this case. Comments received 
generally will be posted without change to https://www.regulations.gov, 
including any personal and/or business confidential information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two-to-three days after submission 
to verify posting.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Adina Torberntsson, Procurement Analyst, at <a href="/cdn-cgi/l/email-protection#e087938192908f8c898399a0879381ce878f96"><span class="__cf_email__" data-cfemail="80e7f3e1f2f0efece9e3f9c0e7f3e1aee7eff6">[email protected]</span></a> or 
720-475-0568. For information pertaining to status or publication 
schedules, contact the Regulatory Secretariat at <a href="/cdn-cgi/l/email-protection#91f6e2f0e3f4f6e2f4f2d1f6e2f0bff6fee7"><span class="__cf_email__" data-cfemail="bcdbcfddced9dbcfd9dffcdbcfdd92dbd3ca">[email protected]</span></a> or 
202-501-4755. Please cite GSAR Case 2022-G517.

SUPPLEMENTARY INFORMATION:

I. Background

    As one of the largest Federal purchasing agencies, the General 
Services Administration (GSA) purchases an enormous variety of 
different products. Despite product diversity, one element that is 
consistent across these acquisitions is the presence of product 
packaging and shipment packaging. Single-use plastic packaging has an 
additional cost that is often built into the proposed price, or the 
price is later realized in the cost of waste management. In addition, 
the cost of cleaning up environmental pollution and the cost of impacts 
to human health created by single-use plastics are often not accounted 
for in the price of the product.
    A large portion of plastic waste comes from plastic packaging 
alone, and much of this packaging is designed to be used only once. 
This rule represents a small step in addressing the larger problem of 
too much plastic waste.
    GSA amended internal policy guidance in the GSA Acquisition Manual 
(GSAM) Change 138, Case 2021-G528 \1\ to address acquisition planning 
as it relates to waste, sourcing, efficiency, and content management. 
GSA is now seeking a regulatory action that will be applied to its 
Federal Supply Schedules (FSS).
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    \1\ https://www.acquisition.gov/archives/change-138-gsam-case-2021-g528.
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    Multiple factors contributed to the decision to propose this 
regulatory action. These factors include: (a) existing policy and 
guidance, (b) GSA Acquisition Policy Federal Advisory Committee (GAP 
FAC) recommendations, (c) Advanced Notice of Proposed Rule (ANPR) 
public comments, and (d) current industry practices. More detailed 
information is provided below on the various information reviewed in 
the development of this rule.

Objectives

    This proposed rule addresses the following:
    <bullet> Defines SUP-free packaging and single-use plastic 
packaging in 502.101 Definitions.
    <bullet> Adds a new FSS provision to identify SUP-free packaging at 
552.238-XXX. This provision requires the offeror to identify whether 
they do or do not offer SUP-free packaging. If the offeror provides 
SUP-free packaging, it will also identify whether the SUP-free 
packaging

[[Page 88857]]

is standard or must be specified by the ordering official.
    <bullet> Adds a new FSS SUP-free Packaging Availability clause at 
552.238-YYY. This clause includes a requirement to identify whether 
SUP-free packaging is available as the standard shipping practice, or 
at a premium or discount rate. Contractors that offer SUP-free 
packaging are encouraged to highlight SUP-free packaging in their price 
list and marketing materials.
    GSA encourages ordering activities, when placing FSS orders and 
establishing blanket purchase agreements (BPAs), to include a 
preference for sustainable solutions such as SUP-free packaging. GSA 
will also highlight industry partners that make SUP-free packaging by 
utilizing a new product icon in its ordering systems, such as GSA 
Advantage![supreg]. The overall intent is to encourage industry 
partners who collaborate with GSA to reduce this critical waste stream, 
and to be acknowledged for their efforts in furtherance of this 
endeavor.
    GSA will examine further ways to update its e-tools. This may 
include tools such as the environmental aisle, green procurement 
compilation tool, and others to include an icon or other identifier for 
SUP-free packaging.

Existing Policy and Guidance

Executive Order 14057 (December 8, 2021)
    Executive Order (E.O.) 14057, Catalyzing Clean Energy Industries 
and Jobs Through Federal Sustainability, Section 207, specifically 
addresses plastic pollution by referencing the Save Our Seas Act, 
Public Law 116-224, and promoting a circular economy.
    In February of 2022, the GAP FAC referenced E.O. 14057 when 
recommending that GSA take action in addressing single-use plastics in 
federal acquisitions.
Federal Sustainability Plan (December 2021)
    The Federal Sustainability Plan outlines the path for Federal 
Operations to achieve net-zero emission procurements by 2050. To do 
this, the plan directs the federal government to maximize procurement 
of sustainable products, as well as reduce waste. As a petrochemical 
product primarily manufactured using petrochemicals, single-use plastic 
is a product type whose reduction would address the plan's goals to 
reduce emissions.\2\
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    \2\ Federal Sustainability Plan.
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Environmental Protection Agency (EPA) Draft National Strategy To 
Prevent Plastic Pollution (April 21, 2023)
    The EPA published a draft national strategy to prevent plastic 
pollution,\3\ which consists of three overarching goals: reduce 
pollution during plastic production, improve post-use materials 
management, and prevent trash and micro/nanoplastics from entering 
waterways and remove escaped trash from the environment. GSA can 
support this national strategy through this rulemaking to reduce 
single-use plastic packaging.
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    \3\ EPA Draft National Strategy Prevent Plastic Pollution.
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Other State and Local Government Policy Efforts

    In planning the approach to this rule, GSA reviewed state and local 
government policies on reducing waste from single-use plastics such as 
California's Plastic Pollution Prevention and Packaging Producer 
Responsibility Act (SB 54).\4\ This statute requires removal of all 
single use plastic packaging that is non-recyclable and non-compostable 
within the statutory timeframe. As the fifth largest economy,\5\ 
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.\6\
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    \4\ Allen, Chapter 75, Statutes of 2022, was signed into law on 
June 30, 2022.
    \5\ https://www.bloomberg.com/opinion/articles/2022-10-24/california-poised-to-overtake-germany-as-world-s-no-4-economy.
    \6\ 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.
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GSA Acquisition Policy Federal Advisory Committee (GAP FAC)

Recommendations
    The GAP FAC was established to provide recommendations specific to 
GSA to drive regulatory, policy, and process changes in acquisition.\7\ 
The GAP FAC is comprised of multiple stakeholders to include academics, 
non-profit organizations, industry, and government employees.
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    \7\ https://www.gsa.gov/policy-regulations/policy/acquisition-policy/gsa-acquisition-policy-federal-advisory-committee.
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    The policy subcommittee initially focused on steps GSA can take to 
ensure climate and sustainability issues are fully considered in the 
acquisition process, specifically researching the topic of single-use 
plastics.
    The GAP FAC identified risks associated with single-use plastics, 
including the use of redundant packaging, the cost for disposal, as 
well as the environmental justice issues raised by production, use, and 
waste management disposal of single-use plastics. The GAP FAC advised 
GSA that many single-use plastics and packaging are difficult or 
impossible to recycle or compost and end up in landfills or other waste 
management facilities, which are often located in or near disadvantaged 
communities. The advisory memo provided by the GAP FAC also highlights 
the Federal Sustainability Plan and discusses a net-zero procurement 
goal by 2050 established by E.O. 14057.
    The GAP FAC recommended \8\ that GSA pursues rulemaking to reduce 
plastic waste. They highlighted that 36% of all plastic produced is 
packaging material.\9\ The overall recommendation to pursue rulemaking 
aligns with public feedback received during the ANPR that was open for 
public comment from September through November of 2022. The rulemaking 
recommendations include developing pre-award incentives or post-award 
rewards to suppliers for reducing unnecessary plastic packaging in 
shipping materials, or product packaging materials, demonstrated 
through waste reduction plans or third-party ecolabels.
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    \8\ https://www.gsa.gov/system/files/GAP%20FAC%20RECOMMENDATION%20REPORT%202023-01%20%283%29.pdf.
    \9\ https://www.science.org/doi/10.1126/sciadv.1700782.
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Advanced Notice of Proposed Rule Public Comments

    An advanced notice of proposed rulemaking (ANPR) was published in 
July of 2022 (87 FR 40476) with a 60 day response deadline, which was 
then extended an extra 3 weeks to meet the demands of all interested 
parties (87 FR 54937). The results of the ANPR were overall favorable 
with thousands of people signing statements of approval and submitting 
those as comments to the agency.
    Some comments reflect a misunderstanding of GSA's role and the 
objective of the ANPR. As an acquisition agency, GSA is looking to 
leverage the acquisition system to reduce incoming single-use plastics 
packaging when Federal agencies use GSA contracts to acquire products.
    Multiple respondents raised concerns about the environmental impact 
of products that are predominantly biobased, but may have either a 
plastic

[[Page 88858]]

coating (for waterproofing), or might be a biobased plastic where it is 
unclear how to compost it. While these concerns do present real 
challenges to packaging, the intent of this rule is not to address 
biobased products or regulate packaging but rather to build conditions 
to reduce the single-use plastic waste stream associated with purchases 
through GSA's Federal Supply Schedule.
    Some comments focused on recycling policies. While important, many 
of these comments are outside of GSA's control and mission. 
Additionally, only 8.7% of plastic waste was recycled \10\ in 2018, and 
that rate dropped to 5-6% in 2021. Given the low percentage of plastic 
recycled,\11\ and the challenges with GSA affecting change in this 
area, GSA did not include recycling policies in the scope of this 
rulemaking.
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    \10\ https://www.smithsonianmag.com/smart-news/the-us-recycled-
just-5-percent-of-its-plastic-in-2021-180980052/
#:~:text=Of%20the%2040%20million%20tons,and%20The%20Last%20Beach%20Cl
eanup.
    \11\ https://www.smithsonianmag.com/smart-news/the-us-recycled-just-5-percent-of-its-plastic-in-2021-180980052/.
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    Multiple ANPR respondents provided feedback identifying concern if 
a product is not properly packaged and is thereafter damaged that would 
pose a greater environmental impact. To address those concerns, GSA is 
incentivizing the use of SUP-free packaging, as defined by the agency, 
not mandating it. The proposed rule encourages GSA's industry partners 
to promote their Federal Supply Schedule contract through a new GSA 
Advantage![supreg] SUP-free packaging product icon. Additionally, GSA 
will encourage its customers to consider packaging when making 
purchasing decisions through training and customer outreach.

Industry Practices and Consumer Trends

    Overall review of applicable online articles, as well as review of 
companies' available shareholders reports, indicates that a reduction 
in single-use plastic is positive for marketability of a company, or 
displaying the company's values.
    One historic high-profile case for a corporate change to packaging 
was McDonald's Corporation in 1990. Customers were concerned with the 
amount of polystyrene trash that was being produced. McDonald's pursued 
a change in packaging materials, rather than polystyrene \12\ recycling 
because it was not economically advantageous to do so. In making this 
change it highlighted that the company could be economically successful 
on a global scale, while still acting in the interest of the 
environment and the consumer.
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    \12\ https://www.nytimes.com/1990/11/02/business/packaging-and-public-image-mcdonald-s-fills-a-big-order.html.
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    Online reviews of companies that sell a predominantly plastic 
product, such as electronic companies, have also shown positive trends 
in reducing single-use plastic packaging with the goal of reducing such 
packaging to zero. An example of this is Apple Computers. In the 
company's 2022 environmental report the company highlighted a 75% 
reduction in plastic packaging as seen in 2021 when compared to where 
the company was at in 2015.\13\ This indicates that not only is such a 
reduction achievable. Under this circumstance it makes sense for GSA to 
identify ways to encourage the move towards SUP-free packaging.
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    \13\ https://www.apple.com/environment/pdf/Apple_Environmental_Progress_Report_2022.pdf.
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    Apple disclosed in the report that in 2021 they moved away from 
molded foam packaging to corrugated cardboard to absorb the shock of 
transport, and were able to continue with their current suppliers to 
make this change. Apple stated that they saved 400 metric tons of 
single-use plastic by changing their packaging alone.\14\ The report 
continues that Apple is making these decisions to not only be 
environmentally conscientious but to also remain competitive in the 
market.
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    \14\ Apple Environmental Report, page 42, https://www.apple.com/environment/pdf/Apple_Environmental_Progress_Report_2022.pdf.
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    Small businesses are also adopting this trend for product specific 
packaging. An example of this is Monadnock Paper Mill (MPM),\15\ which 
is the oldest operational papermill in the United States. Located 
outside of Bennington, New Hampshire.\16\ The mill has maintained 
operations by adapting over time, but also by promoting sustainability 
in their products to include packaging. The MPM business strategy 
highlights that to stay competitive over 200 years, you have to adapt 
and be forward thinking. The MPM looks to replace traditionally plastic 
products with paper ones.\17\
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    \15\ For NAICs Code 322120 for paper mills the size standard is 
1250 employees. MPM is designated as a small business per that 
NAICs. https://www.encyclopedia.com/books/politics-and-business-
magazines/monadnock-paper-mills-
inc#:~:text=Monadnock%20Paper%20Mills%2C%20Inc.%20is,small%20paper%20
mill%20in%20America.
    \16\ https://www.mbtmag.com/global/article/13215337/inside-americas-oldest-continuously-operating-paper-mill.
    \17\ https://www.forbes.com/sites/jimvinoski/2019/07/10/monadnock-paper-mills-celebrates-200-years-of-continuous-operation/?sh=3a2e273d44c1.
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    In addition, small businesses that sell on behalf of a large 
business manufacturer can make their packaging options a value-added 
component, thus adding competition where previous waivers were 
required.\18\
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    \18\ See Federal Acquisition Regulations (FAR) 19.505(c) for 
additional information.
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    Survey data has shown that overall, customers' do not want plastic 
packaging,\19\ and studies \20\ find that people prefer sustainable 
brands.\21\ Overall 72% of consumers \22\ worldwide are actively buying 
more sustainable products, with this trend continuing.
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    \19\ https://www.forbes.com/sites/solitairetownsend/2018/11/21/consumers-want-you-to-help-them-make-a-differe,nce/?sh=474c27d46954.
    \20\ The Elusive Green Consumer, Harvard Business Review, Aug. 
2019 https://hbr.org/2019/07/the-elusive-green-consumer.
    \21\ https://www.barrons.com/articles/two-thirds-of-north-americans-prefer-eco-friendly-brands-study-finds-51578661728.
    \22\  https://www.forbes.com/sites/blakemorgan/2021/04/19/customers-hate-plastic-packaging-so-why-do-companies-keep-using-it/?sh=7664ce9192c6.
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    These industry examples highlight that reducing single-use plastic 
packaging can be accomplished, without negatively impacting the product 
or the customer's experience.

II. Discussion and Analysis

    In review of existing legislation, agency regulations, GAP FAC 
recommendations, ANPR public comments, and market data, GSA determined 
that reduction is the best starting point for the agency, as well as 
our industry partners, in addressing single-use plastics.
    Although there could be multiple opportunities during an 
acquisition's lifecycle to address product packaging, GSA decided 
encouraging industry partners to offer SUP-free packaging, to include 
either product or shipping packaging, for products awarded on a FSS 
contract was the best starting point. The FSS program is a long-term 
governmentwide contract with commercial companies that provide access 
to millions of commercial products and services at the best value, in 
terms of cost, quality and service.
    The Federal Supply Schedules makes buying easy and efficient with 
the use of modern technology to connect government buyers and industry. 
This rule will provide flexibility for contracting officers to 
determine if this is a competitive element specific to what they are 
procuring.
    In review of current GSA acquisition supplemental policies, there 
is a need to address single-use plastic waste as it relates to 
packaging and single-use plastic product waste, and trends around this 
topic. To reduce this waste-stream, GSA is proposing to revise its

[[Page 88859]]

regulations when establishing Federal Supply Schedule contracts as 
further described below.

GSAR Part 502 Definitions

    The regulatory changes include providing definitions for single-use 
plastic packaging as well as SUP-free packaging. The definitions for 
single-use plastic packaging and SUP-free packaging take into account 
the needs of the agency, market trends to include consumer demand, and 
guidance received from both the ANPR and the GAP FAC.
    These definitions were developed by adopting what some state 
legislatures have done, such as California in defining single-use 
plastic packaging. Additional guidance in developing these definitions 
came from reviewing both the Federal Trade Commissions (FTC) Green 
Guides \23\ on product packaging and the International Organization for 
Standardization (ISO) ISO 18601:2013,\24\ which addresses packaging.
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    \23\ Federal Trade Commission, www.ftc.gov, Part 260 Guides for 
the Use of Environmental Marketing Claims.
    \24\ ISO 18601:2013 Packaging and the environment--General 
requirements for the use of ISO standards in the field of packaging 
and the environment https://www.iso.org/obp/ui/#iso:std:iso:18601:ed-1:v1:en.
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GSAR Part 538 Federal Supply Schedule Contracting

    To implement the proposed clause and provision for the Federal 
Supply Schedule, the prescription language in Part 538 has been updated 
to accommodate this change and require the new clause and provision to 
be included at the Federal Supply Schedule contract level.

GSAR Part 552 Solicitation Provisions and Contract Clauses

    The intent of this rule is to encourage FSS contractors to adopt 
and promote SUP-free packaging instead of single-use plastic packaging. 
To do this, an existing clause needs to be amended, and a new clause 
and provision introduced.

GSAR Clause 552.238-88 GSA Advantage![supreg]

    The change to 552.238-88 GSA Advantage![supreg] highlights the GSA 
SUP-free packaging icon that is being implemented in support of this 
case.

GSAR Provision 552.238-XX Single-Use Plastic (SUP) Free Packaging 
Identification

    This new provision provides the opportunity for GSA industry 
partners to identify if: (1) they are able to provide SUP free 
packaging; and (2) SUP free packaging is a standard part of their 
offering or must be specified by the ordering activity. The provision 
also identifies potential for a single-use plastic free packaging 
preference based on the proposed packaging label in GSA's online 
catalogs to promote sales.

GSAR Clause 552.238-YYY Single-Use Plastic (SUP) Free Packaging 
Availability

    The new clause includes general statements of behaviors that GSA 
wants to encourage industry partners to adopt, the definitions that 
apply to the clause, and applicable procedures for SUP-free packaging.
    GSA is defining SUP-free packaging as it relates to the agency and 
the Federal Supply Schedule. This definition will be incorporated into 
different electronic system enhancements in the form of an online icon 
that identifies those contractors on GSA Advantage![supreg]. Industry 
partners are invited to identify any price premiums or discounts for 
SUP-free packaging.

III. Expected Impact of the Rule

    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 
consumption, 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. 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 bulk 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

    Focusing the regulatory changes on FSS contractors will enable GSA 
to incentivize contractors to voluntarily provide SUP-free packaging 
information through GSA's online system. The estimated cost per 
contractor is $1,796.14. The calculations as to how GSA got to this 
estimate are further described in section III.C.
    The SUP-free packaging identification provision allows FSS 
contractors to identify products that are either packaged 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, and also FSS industry 
partners by providing a new opportunity to showcase their responsible 
environmental stewardship.
    The Federal Government is the world's single largest purchaser of 
goods and services, spending over $694 billion \25\ in contracts in 
Fiscal Year 2022 alone. Public procurement can shift markets, drive 
innovation, and be a catalyst for adoption of new norms and global 
standards. Since the Federal Supply Schedules are 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 Federal Supply Schedules 
can easily be adopted into other Government contracts.
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    \25\ A Snapshot of Government-Wide Contracting for FY, April 15, 
2023, https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2022.
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    Overall, the proposed 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. It is critical that GSA take this 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.

[[Page 88860]]

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 proposed regulations require more of a 
familiarization in learning how to register in the etool; 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 formula to calculate this cost 
is 14,000 contracts \26\ multiplied by 1 hour at a GS-12 \27\ 
equivalent rate. The total for this would equal $1,083,880.
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    \26\ This number is derived from a rolling average of data from 
the FAS Schedules Sales Query (SSQ) dashboard for all FSS 
contractors (https://d2d.gsa.gov/report/fas-schedule-sales-query-plus-ssq). Baseline for FY20 was 14,145; FY21 was 14,109; FY22 was 
14,343. Average number of FSS contractors for FY20 through FY22 is 
14,199, rounded to 14,000.
    \27\ 2023 Rest of US, 12 Step 5 x 2.0 fringe = $77.42; the rate 
is adjusted upward by 100% to adjust for overhead and benefits.
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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 
schedule programs, to analyze the existing product catalog is 1 hour, 
however if this assertion is incorrect the agency welcomes industry 
feedback on this calculation or the following time calculations. 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 formula to calculate this cost is 14,000 
contracts multiplied by 2.1 hours at a GS-12 \28\ equivalent rate. The 
total for this would equal $2,276,148.
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    \28\ 2023 Rest of US, 12 Step 5 x 2.0 fringe = $77.42; the rate 
is adjusted upward by 100% to adjust for overhead and benefits.
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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 time to complete the 
submission is 0.1 hours. The formula to calculate this cost is 14,000 
contracts multiplied by 20.1 hours at a GS-12 \29\ equivalent rate. The 
total for this would equal $21,785,988.
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    \29\ 2023 Rest of US, 12 Step 5 x 2.0 fringe = $77.42; the rate 
is adjusted upward by 100% to adjust for overhead and benefits.
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4. Summary of Public Costs
    The total estimated public cost of compliance with this rule, if 
all FSS contractors adopted this voluntary requirement, would be 
$25,146,016. The 14,000 participants are a conservative estimate since 
the offeror's may choose if they want to provide SUP-free packaging as 
defined. The 14,000 represents if all contractors were to comply, with 
an average cost per contractor of $1,796.14.
    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 Federal Supply Schedule price list, which they 
would do regardless if the rule was issued.
    With the Schedule 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]. Schedule 
contractors are able to invest in this change which may provide greater 
visibility on GSA's electronic tools to Federal buyers. With the market 
trending in this direction, accepting this change may assist GSA 
Schedule 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. 
At this time 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. If there are 
alternative GSA tools that would be more beneficial to utilize, then 
please provide that feedback.
    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 \30\ equivalent rate. The total for this effort would equal 
$61,936 (800 x $77.42).
---------------------------------------------------------------------------

    \30\ 2023 Rest of US, 12 Step 5 x 2.0 fringe = $77.42; 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
    GSA estimates that price premiums and discounts for SUP-free 
packaging will average out to zero additional cost.
4. Summary of GSA Costs
    The total estimated GSA cost of implementation of this rule would 
be $61,936.

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,

[[Page 88861]]

plastic packaging can be a beneficial material. This rule is not 
seeking plastic elimination as users of Federal Supply Schedules 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 to reach a sustainable 
outcome regarding packaging, GSA is cognizant to not issue a broad rule 
without providing space for industry to pivot, and is interested in 
public feedback. 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.

Questions for the Public

    GSA is seeking public comment, including, as indicated above, 
regarding the potential impact of this rule on industry seeking to do 
business with the Federal Government through the FSS program.
    Questions that GSA are asking the public about are as follows:
    1. Are the definitions as currently described in the proposed rule 
clear?
    2. Are the identification questions described in the proposed 
provision clear?
    3. If you are a small business, do you foresee any potential 
impacts from the proposed rule? If yes please clarify if you anticipate 
either positive or negative impacts.
    4. Are the time estimates provided in the current analysis 
accurate? Current analysis is 1 hour to learn how to register in the e-
tool, 2.1 hours for SUP-free packaging identification, and 20.1 hours 
for the SUP-free packaging research?

IV. Executive Orders 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) supplements and reaffirms 
the principles, structures, and definitions governing contemporary 
regulatory review established in E.O. 12866 and E.O. 13563.
    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. 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. 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.
    Furthermore, the rule change does not dictate how to determine what 
is redundant packaging or not, as discussed throughout the above 
analysis. Industry partners, to include small entities, have 
flexibility to provide solutions that meet their business needs, as 
well as potentially save cost by reducing redundant packaging. However, 
an Initial Regulatory Flexibility Analysis (IRFA) has been prepared 
consistent with 5 U.S.C. 603 and is summarized below.

    The proposed 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%) 
were small business entities.
    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.
    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 Initial 
Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for 
Advocacy of the Small Business Administration. A copy of the IRFA may 
be obtained from the Regulatory Secretariat Division. GSA invites 
comments from small business concerns and other interested parties on 
the expected impact of this rule on small entities.
    GSA will consider comments from small entities as they relate to 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (GSAR Case 2022-G517) in 
correspondence.

VI. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 3501) does apply 
because the proposed 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-XXX and GSAR 552.238-YYY.
A. Public Reporting Burden
    Public reporting burden specific to this proposed 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-XXX
    The annual reporting burden is estimated as follows:
    Respondents: 3,500.
    Responses per Respondent: 1.
    Total Responses: 3,500.
    Hours per Response: 2.
    Total Burden Hours: 7,000.
GSAR 552.238-YYY
    The annual reporting burden is estimated as follows:
    Respondents: 3,500.
    Responses per Respondent: 1.
    Total Responses: 3,500.
    Hours per Response: 2.
    Total Burden Hours: 7,000.
B. Public Comments
    Public comments are particularly invited on: Whether this 
collection of information is necessary and whether it will have 
practical utility; whether our estimate of the public burden of this 
collection of information is accurate and based on valid assumptions 
and methodology; and ways to enhance the quality, utility, and clarity 
of the information to be collected.
    Requesters may obtain a copy of the information collection 
documents from

[[Page 88862]]

the GSA Regulatory Secretariat Division, by calling 202-501-4755 or 
emailing <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="74332735261113271117341307155a131b02">[email protected]</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 proposes amending 48 CFR parts 502, 538 and 552 as 
set forth below:

0
1. The authority citation for 48 CFR parts 502, 538 and 552 continue 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 is the material used to protect an item. Packaging 
includes, but is not limited to: brand packaging, ancillary packaging, 
grouped packaging, and redundant packaging.
    (1) Brand packaging, sales packaging or primary packaging is 
packaging intended to provide the user or consumer with the individual 
unit of the product, such as plastic casing.
    (2) Shipping packaging, serves as protection for the goods to 
ensure safe transport to the end customer, including:
    (i) Ancillary packaging or transport packaging is packaging 
intended to secure the product, such as packing peanuts, wrapping 
materials, or molded materials.
    (ii) Grouped packaging or secondary packaging is packaging intended 
to bundle, sell in bulk, brand, or market/display products.
    (iii) Redundant packaging or unnecessary packaging is 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 disposed of 
immediately after use. Disposal of the product meaning that it is 
routinely recycled, disposed of, or discarded 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 ancillary 
packaging, brand/sales packaging, grouped packaging, and redundant 
packaging.
    Single-use plastic (SUP) free packaging means product or shipping 
containment materials free of single-use plastic. 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. Removing from paragraph (b) the phrase ``to 52.212-1'' and adding 
``to FAR 52.212-1'' in its place;
0
c. Removing from paragraph (c) the phrase ``to 52.212-2'' and adding 
``to FAR 52.212-2'' in its place;
0
d. Removing from paragraph (d) the phrase ``to Clause 52.212-4'' and 
adding ``to FAR 52.212-4'' in its place;
0
e. Adding paragraph (d)(38); and
0
f. Removing from paragraph (e) the word ``clause''.
    The additions read as follows:


538.273   FSS solicitation provisions and contract clauses.

* * * * *
    (a) * * *
    (4) 552.238-XXX, Single-use Plastic Free Packaging Identification.
* * * * *
    (d) * * *
    (38) 552.238-YYY, Single-use Plastic Free Packaging Availability.
* * * * *

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] (DATE)
* * * * *
    (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-XXX). 
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-YYY).

    (End of clause)

0
5. Add section 552.238-XXX and 552.238-YYY to read as follows:


552.238-XXX   Single-use Plastic (SUP) Free Packaging Identification.

    As prescribed in 538.273(a), insert the following provision:
    Single-use Plastic Free Packaging Identification (DATE).
    (a) Single-use plastic free packing promotions. Ordering 
activities may focus their GSA Advantage![supreg] search on the 
designated icons 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) when the resulting contract includes supplies.
    (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.
    If already identified, notify the Schedule contract's 
contracting officer with your response.
    (c) Optional identification requirements. In order to be 
considered for the designated icons noted in paragraph (d), 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 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)(i) of 
this provision, the offeror identifies that the SUP-free shipping

[[Page 88863]]

packaging__does need to be requested by the ordering official.
    (d) Identification standards. SUP-free packaging icons for the 
types identified in paragraph (c), 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-YYY  Single-use Plastic (SUP) Free Packaging Availability.

    As prescribed in 538.273(d), insert the following clause:
    Single-use Plastic Free Packaging Availability (DATE).
    (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 disposed 
of immediately after use. Disposal of the product meaning that it is 
routinely recycled, disposed of, or discarded 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 ancillary packaging, brand/sales packaging, grouped 
packaging, and redundant packaging.
    Single-use plastic (SUP) free packaging means product or 
shipping containment materials free of single-use plastic. 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-XXX, SUP-Free Packaging 
Identification the Contractor may include in the submitted price 
list (see the MAS solicitation instructions for submitting price 
list, including I-FSS-600) SUP-free packaging. The submitted 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-XXX, 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 https://www.gsa.gov/logos. 
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, 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. 2023-27942 Filed 12-22-23; 8:45 am]
BILLING CODE 6820-61-P


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