2172 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Rules and Regulations 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Part 538 

[GSAR Case 2022–G514; Docket No. GSA– 

GSAR–2023–0009; Sequence No. 1] 

RIN 3090–AK58 

General Services Administration 

Acquisition Regulation; Standardizing 

Federal Supply Schedule Clause and 

Provision Prescriptions 

AGENCY: Office of Acquisition Policy, 

General Services Administration (GSA). 

ACTION: Final rule. 

SUMMARY: The General Services 

Administration is issuing this final rule 

amending the General Services 

Administration Acquisition Regulation 

(GSAR) to clarify when GSAR clauses 

apply to Federal Supply Schedule 

contracts. 

DATES: Effective: February 12, 2024. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Adina Torberntsson, Procurement 

Analyst, at gsarpolicy@gsa.gov or 720– 

475–0568. For information pertaining to 

status or publication schedules, contact 

the Regulatory Secretariat at gsaregsec@

gsa.gov or 202–501–4755. Please cite 

GSAR Case 2022–G514. 

SUPPLEMENTARY INFORMATION: 

I. Background 

GSA published a proposed rule in the 

Federal Register at 88 FR 15941 on 

March 15, 2023 to amend the GSAR to 

address when the GSAR clauses apply 

to Federal Supply Schedule contracts 

established by a delegated agency. 

The GSA Schedule, also known as 

Federal Supply Schedule (FSS), and/or 

Multiple Award Schedule (MAS), is a 

long-term governmentwide contract 

with commercial companies that 

provide access to millions of 

commercial products and services at fair 

and reasonable prices to the Federal 

Government. GSA may delegate certain 

responsibilities to other agencies (i.e., 

GSA has delegated authority to the 

Department of Veterans Affairs (VA) to 

procure medical supplies under the VA 

Federal Supply Schedules Program). 

Such delegation provides the 

authorized agency autonomy over their 

resulting contract. The contract is 

published on the FSS website, and often 

looks like every other available FSS 

contract apart from the naming 

convention. Contracts administered 

solely by GSA have a ‘‘GS’’ naming 

convention. 

This change will streamline the 

prescription language. Prescription 

language is the language that instructs 

when a clause is to be applied, when 

establishing a Schedule contract. 

II. Discussion and Analysis 

Analysis of Public Comments 

GSA provided the public a 60-day 

comment period (March 15, 2023, to 

May 15, 2023). GSA did not receive any 

comments from the public. 

Summary of Changes 

GSA did not make any significant 

changes, or changes of any kind, since 

publication of the proposed rule. 

III. Expected Impact of the Rule 

This final rule will ensure GSA’s 

contracting officers are using the clauses 

correctly, clarifies how GSA’s 

delegation to other Government 

agencies work, provides instruction on 

how to document the contract file, and 

the procedures for requesting a 

deviation. This change will have no 

impact on the approximately 13,000 

FSS contractors already using the 

existing clauses. The changes do not 

alter the manner in which the 

contractors conduct business. 

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. The Office of 

Information and Regulatory Affairs 

(OIRA) in the Office of Management and 

Budget (OMB) has determined that this 

is not a significant regulatory action 

and, therefore, was not subject to review 

under Section 6(b) of Executive Order 

12866, Regulatory Planning and Review, 

dated September 30, 1993. 

V. Congressional Review Act 

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. OIRA has determined 

this rule is not to be a ‘‘major rule’’ 

under 5 U.S.C. 804. 

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 described changes clarify 

the language and only slightly modify 

the current text. The meaning behind 

the changed text remains the same, and 

therefore any burden would have been 

identified previously. However, a Final 

Regulatory Flexibility Analysis (FRFA) 

has been prepared. The FRFA has been 

prepared consistent with the criteria of 

5 U.S.C. 604 and is summarized as 

follows: 

The objective of the final rule is to improve 

the understanding of delegation and 

coordination expectations of FSS policies for 

delegated agencies. There were no comments 

submitted and therefore no significant issues 

raised by the public in response to the initial 

regulatory flexibility analysis. 

Title 40 of the United States Code (U.S.C.) 

Section 121 authorizes GSA to issue 

regulations, including the GSAR, to control 

the relationship between GSA and 

contractors. In addition, 41 U.S.C. 152 

provides GSA authority over the FSS 

program. 

The final rule applies to large and small 

businesses, which are awarded FSS 

contracts. Information generated from the 

System for Award Management (SAM), for 

Fiscal Year 2022 has been used as the basis 

for estimating the number of contractors that 

may be involved. Specifically, FSS contracts 

for delegated agencies (i.e., Department of 

Veteran Affairs) were analyzed. Examination 

of this data revealed 1,700 applicable FSS 

contracts were awarded. Of these 1,700 new 

awards, 1,417 (83 percent) contract awards 

were to small business entities. 

The final rule does not change reporting, 

recordkeeping, or other compliance 

requirements for FSS contracts. The rule 

merely clarifies requirements currently in use 

in FSS solicitations and contracts, and does 

not implement new or changed requirements. 

The final rule does not duplicate, overlap, 

or conflict with any other Federal rules. 

There are no known alternatives to this 

final rule which would accomplish the stated 

objectives. This rule does not initiate or 

impose any new administrative or 

performance requirements on small business 


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Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Rules and Regulations 2173 

contractors because the policies are already 

being followed. The final rule merely 

clarifies language in the GSAR to make it 

more accessible to the reader by removing 

references to outdated clauses or excessive 

language. 

The Regulatory Secretariat Division 

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 rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Part 538 

Government procurement. 

Jeffrey A. Koses, 

Senior Procurement Executive, Office of 

Acquisition Policy, Office of Governmentwide Policy, General Services Administration. 

Therefore, GSA amends 48 CFR part 

538 as set forth below: 

PART 538—FEDERAL SUPPLY 

SCHEDULE CONTRACTING 

■ 1. The authority citation for part 538 

continues to read as follows: 

Authority: 40 U.S.C. 121(c). 

■ 2. Add sections 538.000 and 538.001 

to read as follows: 

538.000 Scope of part. 

(a) This part prescribes policies and 

procedures for contracting for supplies 

and services under the Federal Supply 

Schedule (FSS) program. GSA may 

delegate certain responsibilities for 

other agency acquisition programs as 

they relate to the establishment of 

individual federal supply schedules. 

(b) The authority of other agencies to 

award FSS contracts can only be 

accomplished through delegation from 

GSA. An agency delegated authority by 

GSA to award contracts under the FSS 

program is responsible for complying 

with GSA regulations and policies that 

apply to the FSS program, unless an 

exception is approved by GSA (see 

538.001). 

538.001 General. 

If a policy, regulation, or clause is 

identified as not applicable or in 

conflict to what is delegated by GSA, 

the delegated agency shall submit a 

determination and finding supporting 

the rationale as to why it does not 

apply, or is in conflict, in accordance 

with the delegation that was already 

received from GSA. The determination 

and finding must be approved by the 

GSA Senior Procurement Executive, the 

Commissioner of the Federal 

Acquisition Service (FAS) or a designee. 

■ 3. Add section 538.201 to subpart 

538.2 to read as follows: 

538.201 Coordination requirements. 

GSA will coordinate with other 

agencies who administer FSS contracts 

specific to their delegated authority (i.e., 

the Department of Veterans Affairs). 

Coordination will ensure adherence to 

policies and procedures at the program 

level, such as providing guidance on 

approved exceptions (see 538.001). 

■ 4. Revise section 538.273 to read as 

follows: 

538.273 FSS solicitation provisions and 

contract clauses. 

The following clauses and provisions 

apply to FSS solicitations and contracts, 

unless otherwise excepted (see 538.001) 

or as otherwise stated below. For 

example, if only used in solicitations, 

the prescription will clearly state this. If 

the language does not specify 

‘‘solicitations’’ then the clause applies 

to both FSS solicitations and contracts. 

(a) Insert the following provisions in 

FSS solicitations: 

(1) 552.238–70, Cover Page for 

Worldwide Federal Supply Schedules. 

Use in all FSS solicitations. 

(2) 552.238–71, Notice of Total Small 

Business Set-Aside. Use in FSS 

solicitations containing special item 

numbers (SINs) that are set aside for 

small business. 

(3) 552.238–72, Information 

Collection Requirements. Use in all FSS 

solicitations. 

(b) Insert the following clauses and 

provisions in FSS solicitations and 

contracts as an addendum to FAR 

52.212–1, Instructions to Offerors— 

Commercial Products and Commercial 

Services: 

(1) 552.238–73, Identification of 

Electronic Office Equipment Providing 

Accessibility for Individuals with 

Disabilities. the Handicapped. Use only 

in FSS solicitations for electronic office 

equipment. 

(2) 552.238–74, Introduction of New 

Supplies/Services (INSS). Only for those 

solicitations allowing the introduction 

of new supplies/services. Note: GSA 

Form 1649, Notification of Federal 

Supply Schedule Improvement, may be 

required if revising a Special Item 

Number (SIN). 

(c) Insert the following provisions in 

FSS solicitations as an addendum to 

FAR 52.212–2, Evaluation—Commercial 

Products and Commercial Services: 

(1) 552.238–75, Evaluation— 

Commercial Products and Commercial 

Services (Federal Supply Schedule). 

(2) 552.238–76, Use of NonGovernment Employees to Review 

Offers. Use only in FSS solicitations 

when non-government employees may 

be utilized to review solicitation 

responses. 

(d) Insert the following clauses in FSS 

solicitations and contracts as an 

addendum to Clause FAR 52.212–4, 

Contract Terms and Conditions— 

Commercial Products and Commercial 

Services: 

(1) 552.238–77, Submission and 

Distribution of Authorized Federal 

Supply Schedule Price Lists. 

(2) 552.238–78, Identification of 

Products that have Environmental 

Attributes. Use only in solicitations and 

contracts that contemplate products 

with environmental attributes. 

(3) 552.238–79, Cancellation. 

(4) 552.238–80, Industrial Funding 

Fee and Sales Reporting. Use Alternate 

I for FSS with Transactional Data 

Reporting requirements. 

(5) 552.238–81, Price Reductions. Use 

Alternate I for FSS with Transactional 

Data Reporting requirements. 

(6) 552.238–82, Modifications 

(Federal Supply Schedules). 

(i) Use Alternate I for FSS that only 

accept eMod. 

(ii) Use Alternate II for FSS with 

Transactional Data Reporting 

requirements. 

(7) 552.238–83, Examination of 

Records by GSA (Federal Supply 

Schedules). 

(8) 552.238–84, Discounts for Prompt 

Payment. 

(9) 552.238–85, Contractor’s Billing 

Responsibilities. 

(10) 552.238–86, Delivery Schedule. 

Use only for supplies. 

(11) 552.238–87, Delivery Prices. 

(12) 552.238–88, GSA Advantage!®. 

This clause is not required for the 

Department of Veterans Affairs Federal 

Supply Schedules. 

(13) 552.238–89, Deliveries to the U.S. 

Postal Service. Use only for mailable 

articles when delivery to a U.S. Postal 

Service (USPS) facility is contemplated. 

(14) 552.238–90, Characteristics of 

Electric Current. Use only when the 

supply of equipment which uses 

electrical current is contemplated. 

(15) 552.238–91, Marking and 

Documentation Requirements for 

Shipping. Use only for supplies when 

the need for outlining the minimum 

information and documentation 

required for shipping is contemplated. 

(16) 552.238–92, Vendor Managed 

Inventory (VMI) Program. Use only for 

supplies when a VMI Program is 

contemplated. 


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2174 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Rules and Regulations 

1The Board also has various criminal penalty 

authority, enforceable in a federal criminal court. 

Congress has not, however, authorized federal 

agencies to adjust statutorily prescribed criminal 

penalty provisions for inflation, and this rule does 

not address those provisions. 

(17) 552.238–93, Order 

Acknowledgement. Use only for 

supplies. 

(18) 552.238–94, Accelerated Delivery 

Requirements. Use only for supplies. 

(19) 552.238–95, Separate Charge for 

Performance Oriented Packaging (POP). 

Use only for products defined as 

hazardous under Federal Standard No. 

313. 

(20) 552.238–96, Separate Charge for 

Delivery within Consignee’s Premises. 

Use only for supplies when allowing 

offerors to propose separate charges for 

deliveries within the consignee’s 

premises. 

(21) 552.238–97, Parts and Service. 

(22) 552.238–98, Clauses for Overseas 

Coverage. Use only when overseas 

acquisition is contemplated. Choose the 

most appropriate clause(s) to the 

contract scenario. For example there are 

multiple free on board (F.o.b.) clauses. 

Select those that apply best to what is 

being procured. The following clauses 

and provisions shall also be inserted in 

full text, when applicable. 

(i) FAR 52.214–34 Submission of 

Offers in the English Language. 

(ii) FAR 52.214–35 Submission of 

Offers in U.S. Currency. 

(iii) 552.238–90 Characteristics of 

Electric Current. 

(iv) 552.238–91 Marking and 

Documentation Requirements for 

Shipping. 

(v) 552.238–97 Parts and Service. 

(vi) 552.238–99 Delivery Prices 

Overseas. 

(vii) 552.238–100 Transshipments. 

(viii) 552.238–101 Foreign Taxes and 

Duties. 

(ix) FAR 52.247–29 F.o.b Origin. 

(x) FAR 52.247–34 F.o.b. Destination. 

(xi) FAR 52.247–48 F.o.b. 

Destination—Evidence of Shipment. 

(23) 552.238–99, Delivery Prices 

Overseas. Use only when overseas 

acquisition is contemplated. 

(24) 552.238–100, Transshipments. 

Use only when overseas acquisition is 

contemplated. 

(25) 552.238–101, Foreign Taxes and 

Duties. Use only when overseas 

acquisition is contemplated. 

(26) 552.238–102, English Language 

and U.S. Dollar Requirements. 

(27) 552.238–103, Electronic 

Commerce. This clause is not required 

for Department of Veterans Affairs 

Federal Supply Schedules. 

(28) 552.238–104, Dissemination of 

Information by Contractor. 

(29) 552.238–105, Deliveries Beyond 

the Contractual Period—Placing of 

Orders. 

(30) 552.238–106, Interpretation of 

Contract Requirements. 

(31) 552.238–107, Export Traffic 

Release (Supplies). Use in FSS 

solicitations and contracts for supplies. 

This clause is not required for vehicles. 

(32) 552.238–108, Spare Parts Kit. Use 

only for products requiring spare part 

kits. This information is to be specified 

at the order level. 

(33) 552.238–109, Authentication 

Supplies and Services. Use only for 

information technology associated with 

the Homeland Security Presidential 

Directive 12 (HSPD–12). 

(34) 552.238–110, Commercial 

Satellite Communication 

(COMSATCOM) Services. Use only for 

COMSATCOM services. 

(35) 552.238–111, Environmental 

Protection Agency Registration 

Requirement. Use only for supplies 

when products may require registration 

with the Environmental Protection 

Agency. 

(36) 552.238–116, Option to Extend 

the Term of the FSS Contract. Use when 

appropriate. 

(e) Insert the following fill-in 

information within the blank of 

paragraph (d) of FAR clause 52.216–22, 

Indefinite Quantity: ‘‘the completion of 

customer order, including options, 60 

months following the expiration of the 

FSS contract ordering period’’. 

[FR Doc. 2024–00519 Filed 1–11–24; 8:45 am] 

BILLING CODE 6820–61–P 

SURFACE TRANSPORTATION BOARD 

49 CFR Part 1022 

[Docket No. EP 716 (Sub-No. 9)] 

Civil Monetary Penalties—2024 

Adjustment 

AGENCY: Surface Transportation Board. 

ACTION: Final rule. 

SUMMARY: The Surface Transportation 

Board (Board) is issuing a final rule to 

implement the annual inflationary 

adjustment to its civil monetary 

penalties, pursuant to the Federal Civil 

Penalties Inflation Adjustment Act 

Improvements Act of 2015. 

DATES: This final rule is effective 

January 12, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Amy Ziehm at (202) 245–0391. If you 

require an accommodation under the 

Americans with Disabilities Act, please 

call (202) 245–0245. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (2015 Act), enacted as part of the 

Bipartisan Budget Act of 2015, Public 

Law 114–74, 701, 129 Stat. 584, 599– 

601, requires agencies to adjust their 

civil penalties for inflation annually, 

beginning on July 1, 2016, and no later 

than January 15 of every year thereafter. 

In accordance with the 2015 Act, annual 

inflation adjustments are to be based on 

the percent change between the 

Consumer Price Index for all Urban 

Consumers (CPI–U) for October of the 

previous year and the October CPI–U of 

the year before that. Penalty level 

adjustments should be rounded to the 

nearest dollar. 

II. Discussion 

The statutory definition of civil 

monetary penalty covers various civil 

penalty provisions under the Rail (Part 

A); Motor Carriers, Water Carriers, 

Brokers, and Freight Forwarders (Part 

B); and Pipeline Carriers (Part C) 

provisions of the Interstate Commerce 

Act, as amended. The Board’s civil (and 

criminal) penalty authority related to 

rail transportation appears at 49 U.S.C. 

11901–11908. The Board’s penalty 

authority related to motor carriers, water 

carriers, brokers, and freight forwarders 

appears at 49 U.S.C. 14901–14916. The 

Board’s penalty authority related to 

pipeline carriers appears at 49 U.S.C. 

16101–16106.1 The Board has 

regulations at 49 CFR pt. 1022 that 

codify the method set forth in the 2015 

Act for annually adjusting for inflation 

the civil monetary penalties within the 

Board’s jurisdiction. 

As set forth in this final rule, the 

Board is amending 49 CFR part 1022 to 

make an annual inflation adjustment to 

the civil monetary penalties in 

conformance with the requirements of 

the 2015 Act. The adjusted penalties set 

forth in the rule will apply only to 

violations that occur after the effective 

date of this regulation. 

In accordance with the 2015 Act, the 

annual adjustment adopted here is 

calculated by multiplying each current 

penalty by the cost-of-living adjustment 

factor of 1.03241, which reflects the 

percentage change between the October 

2023 CPI–U (307.671) and the October 

2022 CPI–U (298.012). The table at the 

end of this decision shows the statutory 

citation for each civil penalty, a 

description of the provision, the 

adjusted statutory civil penalty level for 

2023, and the adjusted statutory civil 

penalty level for 2024. 


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