General Services Administration’s Request for Information Hints at Potentially Significant Regulation on Single-Use Plastic Packaging | Pillsbury Winthrop Shaw Pittman LLP
The GSA performs many administrative and support functions on behalf of the federal government, including the procurement of goods and services for other agencies. Each year, the GSA facilitates the spending of tens of billions of dollars in federal procurement. The GSA also maintains the GSA Schedule, a series of pre-negotiated contracts that other agencies can use to procure goods and services.
Due to the purchasing power of the GSA, the GSA’s procurement rules can have a significant influence on economic sectors or businesses related to the supply of goods and services to the federal government. Any GSA regulations imposing requirements or reductions on single-use plastic packaging could affect many industries, from the plastics industry, to the packaging and shipping industry, to the industry. food and drink.
Earlier this year, the GSA received a regulatory petition from the Center for Biological Diversity that called on the GSA to enact a rule “committing the federal government to reduce and eventually eliminate its purchases and acquisitions of single-use disposable plastic products.” . The GSA has now moved forward by releasing its ANPR and seeking public comment on plastic packaging as it assesses the petition.
Although not generally considered an environmental regulator, the GSA referenced two recent executive orders as the basis for ANPR: EO 14008 and EO 14057. President Biden signed EO 14008 on “Combating the climate crisis at home and abroad” on January 27, 2021. , and, in part, established policy to manage federal procurement in a manner that “would support robust climate action.”
Most recently, EO 14057 on “Catalysing Clean Energy Industries and Jobs Through Federal Sustainability” called on federal agencies to minimize waste, support markets for recycled products, and promote a transition to a circular economy. EO 14057 also set an ambitious goal for federal agencies to divert at least 50% of non-hazardous solid waste from landfills by 2025 and 75% by 2030. GSA’s ANPR explained that in As a federal government procurement leader, the GSA is “interested in its potential to play a supporting role, including reducing single-use plastics” and “[w]With single-use plastics contributing significantly to the global plastic pollution concern, it makes sense for the agency to look into this issue. »
The GSA has shown a willingness to quickly change acquisition regulations to account for recyclability and waste. After EO 14008, the GSA amended its acquisition manual to direct that when planning acquisition, consideration should be given to procuring items with less packaging, greater recycled content, or less waste . Given its stated objectives and the diversion targets in EO 14057, companies should expect the GSA to move forward with regulation regarding single-use plastic packaging.
The GSA said its goal is to reduce single-use plastic packaging while limiting the burden and liability on its industrial and logistics partners. The GSA is therefore seeking comments on the potential economic consequences, feasibility, measurability and related aspects of any regulations to reduce single-use plastic packaging.
GSA’s ANPR asks reviewers to answer questions related to their business and the feasibility of potential changes, such as reviewer operations and packaging options, existence and performance of alternative packaging, and market, regulatory, statutory and financial barriers to alternative packaging. Other questions relate to the regulations themselves, such as how the GSA can help contractors transition to eco-friendly packaging, compliance and verification mechanisms for any reduction in single-use plastic, and the timeline for these changes.
In addition to these considerations, one of the main concerns of the GSA is the economic impact of the new requirements for single-use plastic products and packaging. The questions here seek to obtain more detailed economic information, such as estimated costs to modify, reduce or eliminate single-use plastic from product lines or packaging, corresponding changes in transport costs, liability risks if the packaging is reduced or altered, or other identifiable economic risks to the industry. or the government.
Agencies use ANPRs as a way to formally invite the public to participate in the development of the proposed rule, often when they need more information or data to determine if a rule is needed, what regulations to develop to achieve the goal, or to explore alternative suggestions or ideas for dealing with a specific topic. ANPRs traditionally help shape the scope and trajectory of regulatory proposal notices, and the information agencies receive from the ANPR process can help frame the regulatory process and influence the outcome of the final rule.
Comments on the GSA’s questions will likely influence the agency’s views on what is possible in any near-term regulations, the types of packaging and materials on which the GSA can best focus its attention, and the impact on federal operations and costs. The comments will also help the GSA properly assess the economic impact on both the federal government and industry of any potential regulations. Because an ANPR is the important first step in a longer process, participating in the GSA’s public comment request can create early engagement with the agency and ensure stakeholders have a place in the process. table during the rule-making process.
Feedback on these topics could therefore help individual companies and industry by ensuring that GSA regulation takes into account the challenges of any reduction in single-use plastic packaging, and by encouraging the GSA to adopt mechanisms to support federal contractors taking these steps.
The GSA proposal aligns perfectly with the Biden administration’s emphasis on circular economy approaches and policies. However, the agency’s plans to regulate single-use plastics in federal procurements are particularly important given the volume of GSA spending and its immense presence in the procurement space. Any potential regulation by the GSA that imposes requirements on single-use plastics will have far-reaching impacts on many industry stakeholders, from manufacturers and distributors to individual suppliers and contractors who supply these goods to consumers. government customers.
Potentially affected parties are therefore advised to participate in the GSA’s regulatory efforts and submit comments as the agency reviews single-use plastics and considers a way forward.
Public comments on the GSA’s proposed rulemaking are expected by September 6, 2022.