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Rule2022-02158

Federal Management Regulation; Art in Architecture

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Published

February 2, 2022

Effective

January 31, 2022

Issuing agencies

General Services Administration

Abstract

GSA is issuing a final rule amending the Federal Management Regulation (FMR) to update certain provisions of the Art in Architecture program. These revisions clarify the policies to collect, manage, fund, and commission visual art in Federal buildings. The rule updates policies consistent with the requirements of the Executive Order (E.O.) issued May 14, 2021, titled "Revocation of Certain Presidential Actions and Technical Amendment." The rule also supports the goals of the E.O. issued January 20, 2021, titled "Advancing Racial Equity and Support for Underserved Communities Through the Federal Government."

Full Text

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<title>Federal Register, Volume 87 Issue 22 (Wednesday, February 2, 2022)</title>
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[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Rules and Regulations]
[Pages 5711-5717]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02158]

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GENERAL SERVICES ADMINISTRATION

41 CFR Part 102-77

[FMR Case 2021-02; Docket No. GSA-FMR-2021-0024, Sequence No. 1]
RIN 3090-AK47

Federal Management Regulation; Art in Architecture

AGENCIES: Office of Government-wide Policy (OGP), General Services
Administration (GSA).

ACTION: Final rule with 60-day comment period.

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SUMMARY: GSA is issuing a final rule amending the Federal Management
Regulation (FMR) to update certain provisions of the Art in
Architecture program. These revisions clarify the policies to collect,
manage, fund, and commission visual art in Federal buildings. The rule
updates policies consistent with the requirements of the Executive
Order (E.O.) issued May 14, 2021, titled ``Revocation of Certain
Presidential Actions and Technical Amendment.'' The rule also supports
the goals of the E.O. issued January 20, 2021, titled ``Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government.''

DATES:
Effective date: January 31, 2022.
Comments due date: Please submit comments by the method listed in
the ADDRESSES section by April 4, 2022 for consideration in future
rulemaking.

ADDRESSES: Submit comments in response to FMR Case 2021-02 to:
<a href="http://Regulations.gov">Regulations.gov</a>: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Submit comments via the
Federal eRulemaking portal by searching for ``FMR Case 2021-02.''
Select the link ``Comment Now'' that corresponds with FMR Case 2021-02.
Follow the instructions provided at the ``Comment Now'' screen. Please
include your name, company name (if any), and ``FMR Case 2021-02'' on
your attached document. If your comment cannot be submitted using
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, call or email the points of contact in the
FOR FURTHER INFORMATION CONTACT section of this document for
alternative instructions.
Instructions: Please submit comments only and cite FMR Case 2021-02
in all correspondence related to this case. Comments received generally
will be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including
any personal or business confidential information, or both, provided.
To confirm receipt of your comment(s), please check <a href="http://www.regulations.gov">www.regulations.gov</a>
approximately two to three days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Chris Coneeney, Director, Real Property Policy Division, Office of
Government-wide Policy, at 202-208-2956 or <a href="/cdn-cgi/l/email-protection#6d0e051f041e430e020308080308142d0a1e0c430a021b"><span class="__cf_email__" data-cfemail="f89b908a918bd69b97969d9d969d81b89f8b99d69f978e">[email&#160;protected]</span></a>. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat Division at 202-501-4755 or <a href="/cdn-cgi/l/email-protection#aaedf9ebf8cfcdf9cfc9eacdd9cb84cdc5dc"><span class="__cf_email__" data-cfemail="05425644576062566066456276642b626a73">[email&#160;protected]</span></a>.
Please cite FMR Case 2021-02.

SUPPLEMENTARY INFORMATION:

I. History of the Program

Art in U.S. public buildings has a long history, beginning in the
1850s in the U.S. Custom House in New Orleans and continuing at the
U.S. Capitol and through the Beaux-Arts era when courthouses and custom
houses throughout the Nation were embellished with works of art. In the
1930s, the Great Depression saw the creation of relief programs of the
New Deal, including four art programs: The Public Works of Art, which
employed artists to create artworks; the Section of Fine Arts (the
Section), a Treasury Department effort that awarded commissions to
artists through competitions to secure the best quality artwork for
installation in public buildings, including Federal buildings,
courthouses and post offices;

[[Page 5712]]

the Treasury Relief Art Project, which employed artists to create
paintings and sculptures for existing Federal buildings; and the
largest of the programs in scope and numbers of artists employed, the
Works Progress Administration, which included the Federal Art Project
(FAP). From 1935 to 1943, thousands of artists created over 200,000
works of art, and under the FAP, these artworks were distributed to
State and municipal facilities. The New Deal art programs brought art
into everyday life in places like post offices, schools, hospitals, and
libraries, and showed the importance of art in a democracy. They also
built up the public art collection in the U.S. and set the stage for
Federal arts funding. The Section also instituted the influential
percent-for-art policy idea: 1% of the total building construction cost
would be set aside for the building's embellishment. In 1963, GSA
started the Fine Arts in New Federal Buildings program, a percent-for-
art policy that in 1972 became the Art in Architecture program. This
has become a model for many State and municipal community art programs.
These artworks enhance the civic meaning of Federal architecture and
showcase the vibrancy of American visual arts. Together, the art and
architecture of Federal buildings create a lasting cultural legacy. The
activities of the Art in Architecture program addressed in this
regulation apply only to federally owned facilities under the
jurisdiction, custody and control of GSA. New art commissions are
included in capital projects authorized by Congress for the
construction or major modernization of a building by GSA. Other
agencies, such as the U.S. Department of State, operate art programs
under separate authorities.
Art programs in Federal buildings not only create a better
environment for conducting Government business, they offer a space to
represent equitably the diversity of the Nation and to support the arts
in communities that have Federal buildings. In accordance with E.O.
13985, ``Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government,'' issued January 20, 2021,
all agencies are directed to ``promote [. . .] equitable
opportunities'' for access to programs and services. Previous
definitions of acceptable art styles limited participation in Art in
Architecture programs, and thus art projects in the past did not
necessarily reflect the diversity of the communities in which they were
located. Increasing equitable access for artists of different
backgrounds and art styles to participate in these programs is a
priority for achieving the goals of E.O. 13985.

II. Current Program and Discussion of Proposed Changes With This Final
Rule

GSA reserves one-half of one percent of the estimated construction
cost of each new Federal building and selects new prospectus-level
modernization or repair and alteration projects to commission project
artists. Artist candidates for Art in Architecture commissions are most
often identified from GSA's National Artist Registry (Registry), which
is a database of artists who have previously submitted digital images
of their past portfolio work. Artists may also be identified through
other sources, such as from posted solicitations for active
procurements. There is no fee to join the Registry, which currently has
approximately 1,700 artists and is open to all artists who are U.S.
citizens or lawful permanent residents. Instructions for joining the
Registry can be found at <a href="https://www.gsa.gov/cdnstatic/National_Artist_Registry_Instructions_MAR_2016.pdf">https://www.gsa.gov/cdnstatic/National_Artist_Registry_Instructions_MAR_2016.pdf</a> and requires the
submission of GSA Form 7437, a resume, images of completed artwork, and
a script identifying the images.
During building construction, a panel of seven, composed of a GSA
art peer from the GSA Commissioner of Public Buildings' National
Register of Peer Professionals (distinguished private-sector design and
art professionals appointed by the Commissioner of Public Buildings to
critique concept designs under development), an art professional from
the city or geographic region of the building project, a representative
of the building project's primary Federal occupant agency, a community
representative, the project's lead design architect, and two GSA
representatives, one representing the Public Buildings Service (PBS)
Regional Commissioner and the other the Art in Architecture program
office, is convened.
The panel meets to discuss opportunities for artists to participate
in the building project. Artists who receive Federal commissions work
with the project architects and others as members of a design team are
invited to participate to ensure that the artworks are meaningfully
integrated into the overall project. GSA's current procedures for this
program can be found at <a href="https://www.gsa.gov/cdnstatic/FINAL%20FOR%20ISSUANCE%20081720%20-%20GSA%20ART%20IN%20ARCHITECTURE%20POLICIES%20AND%20PROCEDURES%20-%20Copy.pdf">https://www.gsa.gov/cdnstatic/FINAL%20FOR%20ISSUANCE%20081720%20-%20GSA%20ART%20IN%20ARCHITECTURE%20POLICIES%20AND%20PROCEDURES%20-%20Copy.pdf</a>. These procedures will be updated upon issuance of the
final rule. The artist selection board is also referenced in the
General Services Acquisition Manual (GSAM) section 536.7003-2,
available at <a href="https://www.acquisition.gov/content/part-536-construction-and-architect-engineer-contracts#GSAM_536-7003-2">https://www.acquisition.gov/content/part-536-construction-and-architect-engineer-contracts#GSAM_536-7003-2</a>.
GSA maintains a public website showing the installed artwork
commissioned by the Art in Architecture program, which is available at
<a href="https://www.gsa.gov/fine-arts#/gallery/439">https://www.gsa.gov/fine-arts#/gallery/439</a>.
GSA's intent to modify PBS policies in the final rule will allow
the removal of the currently restrictive requirement to prioritize the
commissioning of monuments portraying historically significant
Americans, significant events in American history or illustrating the
ideals upon which the Nation was founded with preference for a
realistic style, while soliciting comments to increase civic engagement
and enhance the diversity and equity of the Art in Architecture
program.
GSA recognizes this program is perhaps not as well known among
various communities of artists and, with the publication of this rule,
will be partnering with other Federal agencies to highlight the program
across communities whose artists have not typically been represented in
the Registry. With the publication of this rule, GSA is encouraging
artists to apply to the Registry.
Once an artist is chosen to commission a work of art under the
procedures in GSAM section 536.70 (available at <a href="https://www.acquisition.gov/content/part-536-construction-and-architect-engineer-contracts#id201HD50D01N">https://www.acquisition.gov/content/part-536-construction-and-architect-engineer-contracts#id201HD50D01N</a>), the artist must register in the
System for Acquisition Management at <a href="https://www.SAM.gov">https://www.SAM.gov</a> in accordance
with Federal Acquisition Regulation (FAR) section 52.204-7 (available
at <a href="https://www.acquisition.gov/far/part-52#FAR_52_204_7">https://www.acquisition.gov/far/part-52#FAR_52_204_7</a>).

III. Discussion of the Final Rule

The elements GSA proposes to rescind are described in detail below
together with the policy explanation in each instance. Section 1 of
E.O. 14029, ``Revocation of Certain Presidential Actions and Technical
Amendment,'' \1\ revoked E.O. 13934, ``Building and Rebuilding
Monuments to American Heroes.'' \2\ Section 2 directed GSA to

[[Page 5713]]

consider rescinding any orders, rules, regulations, guidelines, or
policies, or portions thereof, implementing or enforcing E.O. 13934.
Id.
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\1\ 86 FR 27025 (May 19, 2021), <a href="https://www.federalregister.gov/documents/2021/05/19/2021-10691/revocation-of-certain-presidential-actions-and-technical-amendment">https://www.federalregister.gov/documents/2021/05/19/2021-10691/revocation-of-certain-presidential-actions-and-technical-amendment</a>.
\2\ 85 FR 41165 (July 8, 2020), <a href="https://www.federalregister.gov/documents/2020/07/08/2020-14872/building-and-rebuilding-monuments-to-american-heroes">https://www.federalregister.gov/documents/2020/07/08/2020-14872/building-and-rebuilding-monuments-to-american-heroes</a>.
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To implement E.O. 13934, GSA issued a final rule on September 25,
2020.\3\ GSA has now made a determination, consistent with E.O. 14029,
to revoke the regulatory amendments that implemented subsections 4(c),
(d) and (e) of E.O. 13934 and restore the policies that were previously
contained in part 102-77 of the FMR.\4\
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\3\ 85 FR 60383 (Sept. 25, 2020), <a href="https://www.federalregister.gov/documents/2020/09/25/2020-20453/federal-management-regulation-fmr-art-in-architecture">https://www.federalregister.gov/documents/2020/09/25/2020-20453/federal-management-regulation-fmr-art-in-architecture</a>.
\4\ 70 FR 67786 (Nov. 8, 2005), <a href="https://www.federalregister.gov/documents/2005/11/08/05-21644/federal-management-regulation-real-property-policies-update">https://www.federalregister.gov/documents/2005/11/08/05-21644/federal-management-regulation-real-property-policies-update</a>.
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Subsection 4(c) of E.O. 13934 directed GSA, to the extent
appropriate and consistent with applicable law, to prioritize projects
resulting in the installation of a publicly accessible statue of
historically significant Americans in communities where a statue
depicting a historically significant American was removed or destroyed
in 2020.
Subsection 4(d) of E.O. 13934 required GSA, in consultation with
the Interagency Task Force for Building and Rebuilding Monuments to
American Heroes, to revise its Art in Architecture program regulations
to prioritize the commission of works of art that portray historically
significant Americans or events of American historical significance or
illustrate the ideals upon which our Nation was founded. Priority
should be given to public-facing monuments to former Presidents of the
United States and to individuals and events relating to the discovery
of America, the founding of the United States, and the abolition of
slavery. Such works of art should be designed to be appreciated by the
general public and by those who use and interact with Federal
buildings.
Subsection 4(e) of E.O. 13934 further required, ``When a statue or
work of art commissioned pursuant to this section is meant to depict a
historically significant American, the statue or work of art shall be a
lifelike or realistic representation of that person, not an abstract or
modernist representation.''
GSA Art in Architecture policy documents outline the specific
process by which the Federal Government commissions a work of art for a
Federal building. These policy documents detail when an artwork is
commissioned, the makeup of the panel that will recommend and review
artist candidates, how artists can participate in the program, the
criteria for evaluating candidates, and the artist's development of an
art concept.
With this rule, Sec. Sec. 102-77.21, 102-77.22, and 102-77.23 are
removed in their entirety to comply with the direction in E.O. 14029 to
consider revoking regulations that implemented the provisions of E.O.
13934. The title of part 102-77 remains as ``Art in Architecture''
instead of ``Art-in-Architecture.'' GSA has not used the hyphens when
referring to this program for more than 15 years, including in
publications, online and in correspondence. The change reflects this
usage.
GSA is also updating the definitions to be more inclusive of
different visual arts styles and removing references to ``fine arts,''
which may be interpreted by some to exclude certain styles and mediums
of art and, therefore, many artists from consideration for commission.
The broader definition of ``visual arts'' better reflects current
practice in the arts community and supports the goals of E.O. 13985.

IV. Paperwork Reduction Act and Changes Proposed to the National Artist
Registry

The Paperwork Reduction Act (44 U.S.C. 3501-3521) applies to this
final rule.
The Office of Management and Budget (OMB) Control Number 9000-0159,
``Information Collection; Central Contractor Registration,'' supports
FAR Clause 52.204-7, which requires an artist to register in the System
for Award Management once they are selected and awarded a contract. GSA
does not believe any revisions are needed to this information
collection.
GSA requested, and OMB has approved, revisions to OMB Control
Number 3090-0274, ``Art in Architecture Program National Artist
Registry,'' which supports the GSA Form 7437 used for additions to the
Registry. GSA believes these revisions to the form and the information
collection are needed to support the goals of E.O. 13895.
The annual public reporting burden for this collection of
information through OMB Control Number 3090-0274, ``Art in Architecture
Program National Artist Registry'' (GSA Form 7437), is estimated based
on the time for reviewing and completing the collection of information.
GSA is planning to conduct an outreach program to promote the Art in
Architecture program and the Registry. This is expected to increase the
number of annual responses.
Assumptions for reporting burden:
<bullet> GSA estimates 850 responses in the first year of reporting
based on half of the current Registry population.
<bullet> 0.25 hours per response is estimated by the current time
to submit artist information to the Registry. The changes to the form
include additions and removals with the net result being no increase in
time to complete the form.
<bullet> GSA estimates 300 responses per year in the annual updates
as estimated by the current annual responses.
The reporting burden for the first year is estimated as follows:
1. Initial Disclosure based on increased outreach by GSA to the
artist community
Estimated responses: 850.
Estimated hours per response: 0.25.
Total Initial Response Burden Hours: 212.5.
2. Annual Updates (years two and three)
Estimated annual responses: 300.
Estimated hours per response: 0.25.
Total Update Response Burden Hours: 75.
Public comments are particularly invited on: Whether this
collection of information is necessary; 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; ways to enhance the quality, utility and clarity of the
information to be collected; and ways in which we can minimize the
burden of the collection of information on those who are to respond
through the use of appropriate technological collection techniques or
other forms of information technology.

V. Expected Impact of This Final Rule

This final rule revokes the regulatory amendments that implemented
subsections 4(c), (d) and (e) of E.O. 13934 and restores policies that
were previously contained in part 102-77 of the FMR. Accordingly, the
only impact from the revocation of E.O. 13934 as effectuated by this
final rule is the expansion of the styles of artwork under
consideration for commissions within the Art in Architecture program.
There are no other changes to the policies surrounding the
consideration of artists. The number of new construction and
prospectus-level renovation projects requiring an Art in Architecture
commission per year depends on the number of prospectus-level new
construction and major repairs and alterations projects approved by

[[Page 5714]]

Congress. The number of commissions and their value was not affected by
the implementation of the prior rule nor is it expected to be impacted
by this final rule. Historical averages denote an annual rate of 5 Art
in Architecture projects per year with an average cost of $482,335 per
project.

A. Costs to the Public for Art in Architecture Panels

The only substantive change in procedures due to this final rule is
the consideration of all styles of artwork for commissioning. GSA
analyzed the associated costs of the prior rule and this final rule and
determined there is no additional cost to the public for the operation
and composition of members for the Art in Architecture panels. For the
model for both the prior rule and this final rule, GSA assumes two
small businesses and two large businesses will continue to be members
of the panel. For the model, GSA used the lead designer and the art
peer remaining as the large businesses and the community representative
and the community art representatives as the small businesses. These
assumptions were validated by Art in Architecture staff's review of the
composition of previous panels.
GSA calculated the total estimated cost for the lead designer,
assuming an average hourly rate of $127.69 for a senior principal
architect, for this part of the rule to be $10,215 (= 16 hours x
$127.69 x 5) each year.
GSA calculated the total estimated cost for the art peer, assuming
an average hourly rate of $55.30, for this part of the rule to be
$1,106 (= 4 hours x $55.30 x 5) each year.
GSA calculated the total estimated cost for the community
representative, assuming an average hourly rate of $68.13, for this
part of the rule to be $1,363 (= 4 hours x $68.13 x 5) each year.
GSA calculated the total estimated cost for the community art
representative, assuming an average hourly rate of $55.30, for this
part of the rule to be $1,106 (= 4 hours x $55.30 x 5) each year.
The cost to the public for the Art in Architecture panels remains
the same from the prior rule and this final rule.

B. Public Costs for the Submission of Artist Applications Containing
Their Demographic Information to the National Artist Registry

To align with the Administration's policies and directives, artists
within the Registry will be able to submit their demographic
information through the Art in Architecture website. The provision of
this additional information is optional and will be used to report on
the demographic make-up of participants and their reflection to the
Nation as a whole. Artists will also be able to indicate their status
as a U.S. citizen and, in a change to the form, a lawful permanent
resident. The section on media has been updated to reflect current art
practice and specifications on materials have been eliminated. GSA
estimated the burden to the current artists to be $11,807 (= 0.25 hours
x $27.78 x 1,700) in the second year. GSA estimated the hourly rate of
$27.78 for the artists by using the Bureau of Labor Statistics December
2021 average hourly earnings for other services.\5\
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\5\ <a href="https://www.bls.gov/news.release/empsit.t19.htm">https://www.bls.gov/news.release/empsit.t19.htm</a>.
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To support the Administration's policies and directives, new
artists will submit their information, including key demographic data
points, through the Art in Architecture website. GSA estimated the
burden to the new artists to be $5,903 (= 0.25 hours x $27.78 x 850) in
the second year. GSA estimated the hourly rate of $27.78 for the
artists by using the Bureau of Labor Statistics December 2021 average
hourly earnings for other services.\6\ GSA estimates the number of
submissions will increase by 35% due to the Administration's efforts to
heighten awareness of the Registry and motivate artists to register.
This will help future assessments of the relationship between U.S.
demographic trends and the composition of artists within the Registry.
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\6\ Id.
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GSA calculated the estimated number of annual submissions under the
prior rule by applying the ratio of estimated annual submissions
against the Registry's current population to the number of artists
estimated by GSA to be able to be considered for a commission under the
prior rule. GSA estimated 31 artists on an annual basis would have
submitted information in year 2 of the analysis. Therefore, GSA
calculated this cost to be $215 (= 0.25 hours x $27.87 x 31). This
final rule results in an incremental cost of $5,688 in year 2 to the
public.
To support the Administration's policies and directives, new
artists will submit their information, including key demographic data
points, through the Art in Architecture website. GSA estimated the
burden to the new artists to be $2,084 (= 0.25 hours x $27.78 x 300) in
years 3-10. GSA estimated the hourly rate of $27.78 for the artists by
using the Bureau of Labor Statistics December 2021 average hourly
earnings for other services.\7\ GSA estimates the number of submissions
will increase due to the Administration's efforts to heighten awareness
of the Registry and motivate artists to register. This will help future
assessments of the relationship between U.S. demographic trends and the
composition of artists within the Registry.
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\7\ Id.
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------------------------------------------------------------------------
Summary Total costs
------------------------------------------------------------------------
Present Value (3 percent)............................... $28,857
Annualized Costs (3 percent)............................ 2,833
Present Value (7 percent)............................... 25,028
Annualized Costs (7 percent)............................ 2,374
------------------------------------------------------------------------

C. Government Costs

Below is a list of activities related to regulatory familiarization
that GSA anticipates will occur.
1. Award of Art in Architecture Commissions
As noted above, GSA gathered details of its Art in Architecture
projects over the past five years. It was determined an average of 5
projects per year occur with an average cost of $482,335 per project.
Therefore, GSA calculated the total estimated cost for this part of the
rule to be $2,411,675 (= 5 x $482,335) each year. However, the
difference in estimated cost between the prior rule and this final rule
is negligible since these commissions were scheduled to be awarded
under the prior rule, but to fewer potential artists. This final rule
does not change the amount of funding allocated for each project, the
number of commissions or the cost of projects and commissions.
2. Workforce Training
GSA calculates it will take one hour in the first year to review
and train the workforce on the requirements of this final rule. GSA
estimates this cost by multiplying the time required to train the
workforce (Art in Architecture staff estimated their workforce to be 18

[[Page 5715]]

individuals) by the estimated compensation, on average, of a GS-13.
Therefore, GSA calculated the total estimated cost for this part of the
rule to be $1,227 (= 1 hour x $68.18 x 18).
GSA calculates it will take eight hours in the first year to create
material to train the workforce on the requirements of this final rule.
GSA estimates this cost by multiplying the time required to develop the
material by the estimated compensation, on average, of a GS-14.
Therefore, GSA calculated the total estimated cost for this part of the
rule to be $644 (= 8 hours x $80.56 x 1).
3. Procedures
For each commissioned work of art, a panel composed of art
professionals, civic and community representatives, the project's lead
design architect, GSA staff, and Federal occupant agency
representatives will meet to discuss opportunities for artists to
participate in the building project.
GSA calculated the total estimated cost for the Art in Architecture
staff to meet the requirements of this final rule for this part of the
rule to be $128,896 (= 5 x $80.56 x 320 hours) each year. GSA estimates
this cost by multiplying the number of projects by the number of hours
per project by the estimated compensation, on average, of a GS-14.
GSA calculated the total estimated cost for regional staff to meet
the requirements of this final rule for this part of the rule to be
$34,090 (= 5 x $68.18 x 100 hours) each year. GSA estimates this cost
by multiplying the number of projects by the number of hours per
project by the estimated compensation, on average, of a GS-13.
GSA calculated the total estimated cost for the United States
District Court judges to meet the requirements of this final rule for
this part of the rule to be $4,582 (= 2 x $143.20 x 16 hours) each
year. GSA estimates this cost by multiplying the number of projects by
the number of hours per project by the estimated compensation, on
average, of a U.S. District Court judge.
GSA calculated the total estimated cost for the Federal agency
representative to meet the requirements of this final rule for this
part of the rule to be $2,578 (= 2 x $80.56 x 16 hours) each year. GSA
estimates this cost by multiplying the number of projects by the number
of hours per project by the estimated compensation, on average, of a
GS-14.
GSA calculated the total estimated cost for the Federal occupant
agency representative to meet the requirements of this final rule for
this part of the rule to be $1,516 (= 1 x $94.76 x 16 hours) each year.
GSA estimates this cost by multiplying the number of projects by the
number of hours per project by the estimated compensation, on average,
of a GS-15.
GSA calculated the total estimated cost for GSA staff to review
demographic information submitted to the Registry on an annual basis to
be $1,150,542 (=2,550 \8\ x $68.18 x .5 hours) for years 2-10 for the
analysis. GSA estimated the data to be reviewed by a GS-13 based on
historical GSA staff responsibilities.
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\8\ It is assumed the artist pool will increase by 300 artists
each year, with the Registry starting with an estimated 2,550
artists in year two.
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GSA calculated the total estimated cost for GSA staff to compile a
report of the submitted and reviewed demographic information from the
Registry on an annual basis to be $80.56 (= 1 x $80.56 x 1 hour) each
year. GSA estimated the report to be compiled by a GS-14, as the staff
member issuing the report would be a senior staff member based on
historical GSA staff responsibilities.
GSA calculated the total estimated cost for GSA staff to review
available technologies to help automate data collection and production
of artist demographics to be $4,131 (= 1 x $57.33 x 8 hours). GSA
estimated the review will be completed by a GS-12 based on historical
GSA staff responsibilities.
The estimated incremental effect of the change contemplated by this
final rule is that the number of artists being considered would
increase in year one from approximately 200 artists whose art would
realistically depict a historically significant American to 2,550
artists, with incremental increases averaging 300 artists per year in
the subsequent years. This effect results in an incremental cost for
the government to receive and process additional submissions to the
Registry. GSA compared the estimated incremental effects and costs of
this final rule against the estimated costs of the prior rule over a
10-year analysis and determined this final rule would increase costs to
the Federal Government by $995,225.\9\
---------------------------------------------------------------------------

\9\ Total costs calculated by GSA
---------------------------------------------------------------------------

D. Government Total Costs

It is assumed the government incurs a cost savings only in the
first year after publication totaling $14,044.\10\ This estimated cost
savings is generated by a reduction of time spent on policies and
procedures by Art in Architecture staff and Regional Fine Arts Officers
in the first year due to the implementation of this final rule. Due to
the expanded data collection within the Registry and review of
collected data in years 2-10, the government does not estimate to incur
a cost savings in any year after the first year. Each year after the
first year of publication, the annual cost to the government is assumed
to be $112,141.\11\ The following is a summary of the estimated costs
calculated for a 10-year time horizon at a 3 and 7 percent discount
rate, respectively:
---------------------------------------------------------------------------

\10\ Id.
\11\ Id.

------------------------------------------------------------------------
Summary Total costs
------------------------------------------------------------------------
Present Value (3 percent)............................... $818,859
Annualized Costs (3 percent)............................ 80,394
Present Value (7 percent)............................... 641,787
Annualized Costs (7 percent)............................ 60,887
------------------------------------------------------------------------

E. Benefits

Art is a vital tool for civic engagement and participation,
building social capital and encouraging civil discourse. It can be a
critical investment in placemaking that engenders community pride and
enables community development. Due to the prior rule's more restrictive
requirements in terms of content and style of art to depict a person or
event of historical significance realistically, only 201 artists met
these requirements. With this final rule, the pool of artists will
expand to all 1,700 members of the Registry regardless of style or
medium used. The removal of the content and style requirements
increases the opportunity for all artists to participate in the program
and be considered for commissions. With GSA's additional outreach,
which will begin with publication of this rule, GSA believes the number
of artists within the Registry will grow each year, thereby furthering
GSA's ability to select a style of art representative of the community
in which it will be commissioned.
Therefore, this final rule will align the Registry and the Art in
Architecture program with the goals of E.O. 13985. It will increase
GSA's ability to connect with local communities and reflect the values,
culture and composition of an area in the commissioned art. It will
also allow for a potential expansion of professional opportunities for
a more diverse set of artists, if their work is chosen.

F. Overall Total Additional Costs of This Final Rule

The overall total additional undiscounted cost of this final rule
is estimated to be $1,027,672 over a ten-year period including the
estimated cost savings in the first year.

[[Page 5716]]

Analysis of Alternatives
The preferred alternative is the process laid out in the analysis
above. However, GSA has analyzed three alternatives to the preferred
process.
Alternative 1: GSA could decide to take no regulatory action. No
action from the government would lead to fewer artists and artistic
styles considered for a commission and would be inconsistent with the
President's direction to agencies in E.O. 13985. The public and
Government would not incur the additional costs associated with this
final rule; however, the benefits of an increased Registry outweigh the
incremental costs. As a result, GSA rejected this alternative.
Alternative 2: GSA could take limited regulatory action based on
the policy direction of E.O. 13985. However, this alternative would
limit GSA's ability to select any medium of art and would limit the
expected impact to communities and public buildings, which would not
fully be consistent with the President's direction to agencies in
E.O.13985. The public and Government would incur a lower cost
associated with this final rule; however, the benefits of an increased
Registry outweigh the incremental costs. As a result, GSA rejected this
alternative.
Alternative 3: GSA could create its own standards in addition to
the policy direction of E.O. 13985 to commission works of art. However,
this alternative would possibly produce a burden to the Government and
the community due to regulatory requirements. It is assumed the costs
associated with this alternative would result in a greater incremental
cost to the public and Government than what is deemed necessary by GSA
to issue this final rule. As a result, GSA rejected this alternative.

VI. Administrative Procedure Act

This rulemaking is exempt from the advance notice-and-comment and
delayed-effective-date requirements of the Administrative Procedure Act
pursuant to 5 U.S.C. 553(a)(2), because this rulemaking relates to
agency management or personnel or to public property, loans, grants,
benefits, or contracts. This rulemaking relates to GSA's agency
management because it only involves the internal processes of the Art
in Architecture program, which applies only to GSA or Federal agencies
acting under a delegation of authority from GSA. This rulemaking also
relates to public property because it applies to federally owned
facilities under the jurisdiction, custody and control of GSA and the
work of art itself is government-owned.

VII. Request for Public Comment

In addition to the changes discussed with this final rule, GSA
requests comment on the following questions to better understand how
the Art in Architecture program can promote the goals articulated in
E.O. 13985, as well as promoting civic engagement and participation and
democratic values, and advancing social ties and economic development
at the community level.
GSA is asking for public input on what steps the GSA Art in
Architecture program can take that the agency is not already taking to:
<bullet> Consider the interests and perspectives of and proactively
engage underserved communities during the commissioning process for a
work of art?
<bullet> Increase the number and diversity of artists who are
considered and shortlisted when commissioning a work of art?
<bullet> Understand the local community so that its interests and
diversity can be taken into account in the commissioning process for a
work of art?
<bullet> Quantify the benefits from increased diversity and equity
of the artists considered for the Art in Architecture program?
<bullet> Enable the commissioned work of art to be accessed by all
members of the community?
<bullet> Conduct outreach efforts to identify artists who are
veterans, who are small or disadvantaged business owners, or who have a
disability to encourage them to join the Registry?
<bullet> Strengthen public participation engagement of the local
community in the commissioning process for a work of art?
<bullet> Define ``community'' for the purpose of reflecting the
people and cultural aspects of a place in the commissioned art?
<bullet> Ensure that the commission reflects the community in which
it will be located?
<bullet> Modify the information collected in the Registry beyond
what is discussed in this rule to enable GSA to measure how the program
aligns with the priorities of equity and inclusion of underserved
communities?
<bullet> Actively promote the Registry to remove barriers for the
widest possible spectrum of eligible artists (i.e., U.S. citizens and
lawful permanent residents) to learn about and join the Registry and be
considered for commissions?
<bullet> Create more learning and professional opportunities for
emerging artists through commissions or other steps?
<bullet> Take advantage of the expertise and capacities of other
Federal agencies, including the National Endowment for the Arts, and
State and local arts agencies in implementing the Art in Architecture
program?
<bullet> Ensure the Art in Architecture program advances democratic
values and strengthens the experience of democracy and inclusion in
America?
To understand the exact scope of the impact of this final rule and
the effect of this impact, GSA welcomes input on the following
assumptions and questions regarding the anticipated impact on affected
parties.
[ssquf] Assumption 1: GSA estimates that this final rule will not
impact the commissioning of works of art. If this assumption is not
correct, are there artists to which this rule will cause significant
impact or disruption?
[ssquf] Assumption 2: The impact of this rule will not
significantly change the way GSA interacts with the Registry. If this
assumption is not correct, to what extent will this final rule,
specifically the revised elements of part 102-77 of the FMR, change how
GSA interacts with the Registry?

VIII. Executive Orders 12866 and 13563

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. This final rule is
a significant regulatory action and, therefore, was subject to review
under subsection 6(b) of E.O. 12866, ``Regulatory Planning and
Review,'' dated September 30, 1993.

IX. Congressional Review Act

This final rule is not a major rule under 5 U.S.C. 804(2). Subtitle
E of the Small Business Regulatory Enforcement Fairness Act of 1996
(codified at 5 U.S.C. 801-808), also known as the Congressional Review
Act or CRA, generally provides that before a 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. A major rule under the CRA
cannot take effect until 60 days after it is published in the Federal
Register. The OMB Office of Information and Regulatory Affairs has
determined that this final rule is not a

[[Page 5717]]

``major rule'' as defined by 5 U.S.C. 804(2).

X. Regulatory Flexibility Act

This final rule will not 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 it applies to
agency management or personnel.

List of Subjects in 41 CFR Part 102-77

Federal buildings and facilities, Government property management,
Rates and fares.

Robin Carnahan,
Administrator of General Services.

0
For the reasons set forth in the Preamble, GSA hereby revises 41 CFR
part 102-77 to read as follows:

PART 102-77--ART IN ARCHITECTURE

Subpart A--General Provisions

Sec.

Scope

102-77.5 What is the scope of this part?

Definition

102-77.10 What definition applies to this part?

Policy

102-77.15 What basic Art in Architecture policy governs Federal
agencies?

Subpart B--Art in Architecture

102-77.20 Who funds the Art in Architecture efforts?
102-77.25 With whom should Federal agencies collaborate when
commissioning visual art for Federal buildings?
102-77.30 Do Federal agencies have responsibilities to provide
national, regional, and local visibility for Art in Architecture?

Authority: 40 U.S.C. 121 and 3306.

Subpart A--General Provisions

Scope

Sec. 102-77.5 What is the scope of this part?

The real property policies contained in this part apply to Federal
agencies, including GSA's Public Buildings Service, operating under, or
subject to, the authorities of the Administrator of General Services.

Definition

Sec. 102-77.10 What definition applies to this part?

Visual art means works, including, but not limited to, painting,
sculpture, architectural or environmental art, time-based media, and
works on paper.

Policy

Sec. 102-77.15 What basic Art in Architecture policy governs Federal
agencies?

Federal agencies must incorporate visual art as an integral part of
the total building concept when designing new Federal buildings and
when making substantial repairs and alterations to existing Federal
buildings, as appropriate. The commissioned art must reflect the
national, regional, or local cultural heritages, or any combination of
the foregoing, within the United States, and emphasize the work of
living American artists, including those in underserved communities.

Subpart B--Art in Architecture

Sec. 102-77.20 Who funds the Art in Architecture efforts?

To the extent not prohibited by law, Federal agencies must fund the
Art in Architecture efforts by allocating a portion of the estimated
cost of constructing or purchasing new Federal buildings or of
completing major repairs and alterations of existing buildings. Funding
for qualifying projects, including new construction, building
acquisitions, and prospectus-level repairs and alterations, must be in
a range determined by the Administrator of General Services.

Sec. 102-77.25 With whom should Federal agencies collaborate when
commissioning visual art for Federal buildings?

To the maximum extent practicable, Federal agencies should seek the
support and involvement of local citizens in commissioning a work of
visual art. Federal agencies should collaborate with the chosen artist
to commission works of visual art that reflect the cultural,
intellectual, and historic interests and values of the community in
which the art is to be located. In addition, Federal agencies should
work collaboratively with the architect of the building and art
professionals in commissioning visual art for Federal buildings.
Federal agencies should commission a work of visual art that is diverse
in style and media and no official style or media are mandated.

Sec. 102-77.30 Do Federal agencies have responsibilities to provide
national, regional, and local visibility for Art in Architecture?

Yes. Federal agencies should provide Art in Architecture that
receives appropriate national, regional, and local visibility to
encourage participation by a large, diverse, and equitable group of
artists representing a wide variety of types of visual art.

[FR Doc. 2022-02158 Filed 1-31-22; 8:45 am]
BILLING CODE 6820-14-P

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