General Services Administration Acquisition Regulation; Reduction of Single-Use Plastic Packaging

<RULE> GENERAL SERVICES ADMINISTRATION <CFR>48 CFR Parts 502, 538, and 552</CFR> <DEPDOC>[GSAR Case 2022-G517; Docket No. GSA-GSAR—2023-0028; Sequence No. 1]</DEPDOC> <RIN>RIN 3090-AK60</RIN> <SUBJECT>General Services Administration Acquisition Regulation; Reduction of Single-Use Plastic Packaging</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Acquisition Policy, General Services Administration (GSA). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective July 8, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> For clarification of content, contact Ms. Adina Torberntsson, Procurement Analyst, at <E T="03">gsarpolicy@gsa.gov</E> or 720-445-0390. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at <E T="03">GSARegSec@gsa.gov</E> or 202-501-4755. Please cite GSAR Case 2022-G517. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> On December 26, 2023, the General Services Administration (GSA) published a proposed rule to the <E T="04">Federal Register</E> 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. <SU>1</SU> <FTREF/> 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. <FTNT> <SU>1</SU>  87 FR 40476. </FTNT> 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. <HD SOURCE="HD1">II. Discussion and Analysis</HD> <HD SOURCE="HD2">A. Summary of Significant Changes</HD> 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. <HD SOURCE="HD2">B. Analysis of Public Comments</HD> 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. <HD SOURCE="HD3">Implementation</HD> <E T="03">Comment:</E> 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. <E T="03">Response:</E> 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. <E T="03">Comment:</E> 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. <E T="03">Response:</E> 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. <E T="03">Comment:</E> Multiple commenters asked for phased implementation of the rule, with some specifically requesting mandatory applicability. <E T="03">Response:</E> 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, <SU>2</SU> <FTREF/> which is located at: <E T="03">https://sam.gov/opp/88193aba7dfe499ea1e48cd303dea73b/view.</E> <FTNT> <SU>2</SU>  This action is also referred to as the MAS refresh with MAS and FSS being used interchangeably. </FTNT> 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. <E T="03">Comment:</E> 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. <E T="03">Response:</E> 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. <E T="03">Comment:</E> One commenter asked to include additional examples in the definitions. <E T="03">Response:</E> This recommendation will be taken into consideration in the agency's implementation instructions or frequently asked questions. <E T="03">Comment:</E> One commenter asked to include alternative packaging examples. <E T="03">Response:</E> This recommendation will be taken into consideration in the agency's implementation instructions or frequently asked questions. <E T="03">Comment:</E> Multiple commenters asked about a pilot program to address plastic waste. <E T="03">Response:</E> GSA has had an ongoing initiative  <SU>3</SU> <FTREF/> 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. <FTNT> <SU>3</SU>  GSA Acquisition Letter MV-21-10. </FTNT> <E T="03">Comment:</E> One commenter asked to limit the definition of SUP to remove language referencing the disposal of SUP. <E T="03">Response:</E> 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. <E T="03">Comment:</E> Multiple commenters asserted that the rule will diminish the efficiency of federal procurement. <E T="03">Response:</E> 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. <E T="03">Comment:</E> One commenter asked for the meaning of the term “competent and reliable evidence.” <E T="03">Response:</E> 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. <HD SOURCE="HD3">Environmental Impacts</HD> <E T="03">Comment:</E> Multiple commenters, including mass mailing submissions, provided feedback that further commitments were needed to maximize environmental impact. This messaging was echoed by multiple organizations and other commenters asking GSA to do more. <E T="03">Response:</E> 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. <SU>4</SU> <FTREF/> The reduction of plastic packaging waste is impactful because it is an element of multiple items offered on the FSS. <FTNT> <SU>4</SU>  Fast Facts About Plastic Pollution, National Geographic, see <E T="03">https://www.nationalgeographic.com/science/article/plastics-facts-infographics-ocean-pollution#:~:text=40%20percent%20of%20plastic%20produced,just%2 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 55k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━