Rule2023-04340
Federal Management Regulation; Real Estate Acquisition
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 7, 2023
Effective
April 6, 2023
Issuing agencies
General Services Administration
Abstract
GSA is finalizing an amendment to the Federal Management Regulation (FMR) part regarding real property acquisition to clarify the policies for entering into lease agreements for high-security space in accordance with the Secure Federal Leases from Espionage And Suspicious Entanglements Act, also referred to as the Secure Federal LEASEs Act.
Full Text
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<title>Federal Register, Volume 88 Issue 44 (Tuesday, March 7, 2023)</title>
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[Federal Register Volume 88, Number 44 (Tuesday, March 7, 2023)]
[Rules and Regulations]
[Pages 14058-14065]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-04340]
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GENERAL SERVICES ADMINISTRATION
41 CFR Part 102-73
[FMR Case 2021-102-1; Docket No. GSA-FMR-2021-0020; Sequence No. 1]
RIN 3090-AK42
Federal Management Regulation; Real Estate Acquisition
AGENCY: Office of Government-wide Policy (OGP), General Services
Administration (GSA).
ACTION: Final rule.
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SUMMARY: GSA is finalizing an amendment to the Federal Management
Regulation (FMR) part regarding real property acquisition to clarify
the policies for entering into lease agreements for high-security space
in accordance with the Secure Federal Leases from Espionage And
Suspicious Entanglements Act, also referred to as the Secure Federal
LEASEs Act.
DATES: Effective: April 6, 2023.
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#c4a7acb6adb7eaa7abaaa1a1aaa1bd84a3b7a5eaa3abb2"><span class="__cf_email__" data-cfemail="c6a5aeb4afb5e8a5a9a8a3a3a8a3bf86a1b5a7e8a1a9b0">[email 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#30776371625557635553705743511e575f46"><span class="__cf_email__" data-cfemail="e2a5b1a3b08785b18781a2859183cc858d94">[email protected]</span></a>.
Please cite FMR Case 2021-102-1.
SUPPLEMENTARY INFORMATION:
I. Background
GSA published a proposed rule at 86 FR 71604 on December 17, 2021,
to implement section [4] of the Secure Federal Leases from Espionage
And Suspicious Entanglements Act, also referred to as the Secure
Federal LEASEs Act, Public Law 116-276, 134 Stat. 3362 (2020) (the
``Act''), which requires the disclosure of ownership information to
Federal lessees leasing high-security space to enable the lessee to
mitigate potential national security risks. The Act was signed into law
on December 31, 2020 (available at <a href="https://www.congress.gov/116/plaws/publ276/PLAW-116publ276.pdf">https://www.congress.gov/116/plaws/publ276/PLAW-116publ276.pdf</a>). The Act imposes disclosure requirements
regarding the foreign ownership and control, particularly ``immediate
owner,'' ``highest level owner'' and ``beneficial ownership,'' of
prospective lessors of ``high-security leased space'' (i.e., property
leased to the Federal Government having a security level of III or
higher). GSA implemented section 3 and section 5 of the Act through the
interim rule General Services Administration Acquisition Regulation
(GSAR) Case 2021-G527 (86 FR 34966) (available at <a href="https://www.federalregister.gov/documents/2021/07/01/2021-14161/general-services-administration-acquisition-regulation-immediate-and-highest-level-owner-for">https://www.federalregister.gov/documents/2021/07/01/2021-14161/general-services-administration-acquisition-regulation-immediate-and-highest-level-owner-for</a>).
The requirements of the statute are applicable to Federal lessees,
defined by the Act as leases by the U.S. General Services
Administration (GSA), the Architect of the Capitol, ``or the head of
any Federal agency, other than the Department of Defense, that has
independent statutory leasing authority.'' The Act is not applicable to
the Department of Defense (DOD) or to the intelligence community.
Section 2876 of the FY 2018 National Defense Authorization Act (Pub. L.
115-91) already provides DOD similar authority to obtain ownership
information with respect to its high-security leased space.
The Act addresses national security risks identified in the U.S.
Government Accountability Office (GAO) report, ``GSA Should Inform
Tenant Agencies When Leasing High-Security Space from Foreign Owners,''
dated January 2017 (GAO-17-195) (available at <a href="https://www.gao.gov/assets/gao-17-195.pdf">https://www.gao.gov/assets/gao-17-195.pdf</a>). This report found certain high-security Federal
agencies were in buildings owned or controlled by foreign entities.
According to the report, most Federal tenants were unaware the spaces
GAO identified were subject to foreign ownership or control, exposing
these agencies to the heightened risk of surreptitious physical or
cyber espionage by foreign actors. The report also noted GAO could not
identify the owners of approximately one-third of the Federal
Government's high-security leases because such ownership information
was unavailable for those buildings.
This final rule addresses the following specific requirements in
Section 4 of the Act:
<bullet> Identification of beneficial ownership information.
<bullet> Development of a governmentwide plan for identifying all
immediate, highest-level, and beneficial owners of high-security leased
space.
<bullet> Submission of a corresponding report to Congress.
This final rule addresses the annual submission of ownership
disclosures to GSA from agencies operating under either independent
statutory leasing authority or a grant of delegated leasing authority
from GSA.
What is a ``Beneficial Owner''?
Unlike the direct control-based immediate owner and highest-level
owner, the Act defines the term ``beneficial owner'' to include any
person that, through a contract, arrangement, understanding,
relationship, or otherwise, exercises control over the covered entity
or has a substantial interest in or receives substantial economic
benefits from the assets of the covered entity, with some exceptions.
The Act is one of several recent examples of congressional concern
about foreign ownership and control and congressional action in the
world of government contracting to help address potential national
security concerns. See, e.g., FY 2021 National Defense Authorization
Act (NDAA) (Pub. L. 116-283), Sec. 819, Modifications to Mitigating
[[Page 14059]]
Risks Related to Foreign Ownership, Control, or Influence of DOD
Contractors and Subcontractors; Sec. 885, Disclosure of Beneficial
Owners in Database for Federal Agency Contract and Grant Officers;
Sec. 6403, Beneficial Ownership Information Reporting Requirements,
and, as of June 30, 2021, GSAR 2021-G527, Immediate and Highest-Level
Owner for High-Security Leased Space.
Because of the related rulemaking, there are several definitions of
``beneficial owner'' (or ``beneficial ownership''). In an attempt to
standardize the data provided to Congress, the definitions stated in
the regulatory text need to be used to have consistency in the
collection of information.
The United States Securities and Exchange Commission (SEC) Definition
Section 885 (Disclosure of beneficial owners in database for
Federal agency contract and grant officers) of the FY 2021 NDAA (Pub.
L. 116-283) \1\ states that beneficial ownership has the meaning given
under section 847 (Mitigating risks related to foreign ownership,
control, or influence of Department of Defense contractors or
subcontractors) of the FY 2020 NDAA (Pub. L. 116-92).\2\ Section 847
does not specifically define beneficial ownership but requires
``beneficial ownership'' to ``be determined in a manner that is not
less stringent than the manner set forth in section 240.13d-3 of title
17, Code of Federal Regulations.'' This Code of Federal Regulations
reference is the SEC definition.\3\ The SEC definition mainly concerns
the beneficial owner of a security (e.g., stock/bond/option for a
corporation), not the corporation or company-at-large.
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\1\ <a href="https://www.congress.gov/bill/116th-congress/house-bill/6395/text">https://www.congress.gov/bill/116th-congress/house-bill/6395/text</a>.
\2\ <a href="https://www.congress.gov/bill/116th-congress/senate-bill/1790/text">https://www.congress.gov/bill/116th-congress/senate-bill/1790/text</a>.
\3\ <a href="https://www.ecfr.gov/current/title-17/chapter-II/part-240/section-240.13d-3#p-240.13d-3">https://www.ecfr.gov/current/title-17/chapter-II/part-240/section-240.13d-3#p-240.13d-3</a>(a).
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Corporate Transparency Act Definition
The Corporate Transparency Act (CTA) definition can be found at
section 6403 of the FY 2021 NDAA. This section defines ``beneficial
ownership'' as, with respect to an entity, an individual who, directly
or indirectly, through any contract, arrangement, understanding,
relationship, or otherwise, (i) exercises substantial control over the
entity; or (ii) owns or controls not less than 25 percent of the
ownership interests of the entity.
Financial Crimes Enforcement Network Definition
The U.S. Department of the Treasury's Financial Crimes Enforcement
Network (FinCEN) issued a final rule implementing the beneficial
ownership information reporting requirements of the CTA, at 87 FR 59498
(September 30, 2022, to be codified at 31 CFR 1010). These regulations
go into effect on January 1, 2024.
Under the rule, a beneficial owner includes any individual who,
directly or indirectly, either (1) exercises substantial control over a
reporting company, or (2) owns or controls at least 25 percent of the
ownership interests of a reporting company. The rule defines the terms
``substantial control'' and ``ownership interest.'' In keeping with the
CTA, the rule exempts five types of individuals from the definition of
``beneficial owner.'' \4\
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\4\ <a href="https://www.fincen.gov/beneficial-ownership-information-reporting-rule-fact-sheet">https://www.fincen.gov/beneficial-ownership-information-reporting-rule-fact-sheet</a>.
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Secure Federal LEASEs Act Definition
A ``beneficial owner'' is ``with respect to a covered entity, each
natural person who, directly or indirectly, through any contract,
arrangement, understanding, relationship, or otherwise, (i) exercises
control over the covered entity; or (ii) has a substantial interest in
or receives substantial economic benefits from the assets of the
covered entity, subject to certain exceptions listed in the section
2(1)(B).''
GSA's Interpretation
GSA interprets that the SEC definition is too limiting for use in
the representation clause because it is concerned with the beneficial
owner of a security rather than a company or corporation. The Secure
Federal LEASEs Act, the CTA, and the subsequent FinCEN definitions are
similar. The definitions similarly characterize a beneficial owner as
someone who (i) controls a covered entity, or (ii) has a substantial
interest. The primary difference between the two is related to
``substantial interest.'' The Secure Federal LEASEs Act states that a
beneficial owner is someone who ``. . . has a substantial interest in
or receives substantial economic benefits from the assets of the
covered entity'' while the CTA and FinCEN definitions says a beneficial
owner ``owns or controls not less than 25 percent of the ownership
interests of the entity.'' GSA interprets that the FinCEN definition
meets the intent of the SFLA (Pub. L. 116-276) definition. As such, GSA
intends to base its definition on the FinCEN definition because it is
more specific (``not less than 25 percent'' as opposed to having to
define ``substantial interest'' or ``substantial economic benefits'')
and because it would allow GSA to leverage FinCEN's efforts to collect
beneficial owner information for all corporations. GSA does not believe
this definition to be ``not less stringent'' than the SEC definition.
Other agencies may choose whether to replicate GSA's approach on
how to collect the information by referring to GSA's rule for General
Services Administration Acquisition Regulation (GSAR) Case 2021-G527 at
86 FR 34966 and GSAR Case 2021-G522 at 86 FR 73219. However, to have a
consistent approach to the information GSA provides Congress, agencies
must follow the definitions outlined in this final rule.
Covered entities already provide certain information on immediate
and highest-level ownership, per Office of Management and Budget (OMB)
Control Numbers 9000-0097, 9000-0185, and 3090-0324. However, covered
entities will need to provide additional disclosure of creditors or
other entities who may be deemed beneficial owners if they either
exercise substantial control over the covered entity or own or control
not less than 25 percent of the ownership interests of the covered
entity. Therefore, property owners will need to take this provision
into account when considering financing options for leasing high-
security space to the Federal Government.
II. Discussion of the Final Rule
A. Summary of Significant Changes
As published in the proposed rule, GSA added subpart D to address
the authorities, definitions, applicability, and information collection
associated with the Secure Federal LEASEs Act. GSA also revised section
102-73.5 to expand the scope of the regulation in subpart D to apply to
Federal agencies exercising independent leasing authority in addition
to those operating under or subject to the authorities of the
Administrator of General Services.
B. Analysis of Public Comments
In the proposed rule published in the Federal Register at 86 FR
71604 on December 17, 2021, GSA provided the public a 60-day comment
period, which ended on February 15, 2022. GSA received one public
comment in response to the proposed rule:
``With heightened international tensions from some foreign actors
toward the US and increased threat of physical and cyber espionage, I
agree and recommend that Sections 3 and 4 of
[[Page 14060]]
the Secure Federal LEASEs Act be accepted under the noted Assumptions
from GSA that (1) this rule will impact mainly Federal agencies and (2)
the impact of this rule will not significantly change the way current
Federal lessors interact with the GSA. It is very concerning that there
are a large number of Federal agencies with high-security leases that
are unaware they are leasing from foreign entities. Awareness and
reporting of foreign lessors should indeed help close any security
loopholes while not providing any further financial burden on the
general public. Further, GSA should adopt the preferred [Corporate
Transparency Act] CTA definition for the beneficial owner. Lastly, it
is recommended that the GSA preferred method for reporting, Alternative
3, be adopted for the implementation of these rules.''
This comment was supportive of the rule. GSA did not change the
regulatory text of the definition from the published proposed rule, but
did add a sentence to clarify that it is based on the FinCEN definition
for beneficial owner. The FinCEN definition was issued pursuant to the
CTA and was published following GSA's proposed rule. GSA is using the
FinCEN definition because it is more specific than the definition in
the Secure Federal LEASEs Act and is congruent with the CTA definition.
GSA is also using Alternative 3 from the Analysis of Alternatives
discussed in section VII. Regulatory Impact Analysis to collect and
aggregate the disclosures from other Federal lessees and report it to
Congress as directed in section 4 of the Act.
III. Executive Orders 12866 and 13563
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.
OIRA has determined that this 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.
IV. Congressional Review Act
OIRA has determined that this rule is not a ``major rule'' as
defined by 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.
GSA 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 under the
CRA cannot take effect until 60 days after it is published in the
Federal Register.
V. 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. Therefore, a Final Regulatory
Flexibility Analysis has not been performed.
VI. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FMR do not impose recordkeeping or information collection
requirements, or the collection of information from offerors,
contractors, or members of the public that require the approval of OMB
under 44 U.S.C. 3501 et seq.
VII. Regulatory Impact Analysis
The cost and benefit impacts of amending FMR part 102-73 regarding
real property acquisition to reflect current laws and regulatory
policies to implement the section 4 requirements outlined in SFLA are
discussed in the analysis below, which was developed by GSA in
consultation with agency procurement officials and the GSA Office of
Leasing. No public comments were received on this analysis, so GSA is
finalizing this analysis without change as discussed below.
(A) Federal Leasing--Current Processes
Potential offerors are required to report certain ownership
information to the System for Acquisition Management, including
immediate or highest-level owners.
(B) Federal Government Leasing--General Security Framework
As outlined within the Interagency Security Committee (ISC)
Standard and the GSA Leasing Desk Guide, the facility security level
(FSL) \5\ is set by the U.S. Department of Homeland Security--Federal
Protective Service (FPS) and the client agency, in consultation with
GSA as part of the requirements development phase of a lease
acquisition. If the client agency and FPS have not already conferred,
the Federal lessee and GSA must coordinate with the necessary parties
to set the appropriate level of security before the solicitation is
drafted. This level of security will be memorialized by the Security
Organization as a preliminary FSL, which serves as a precursor to the
final FSL generally made with the tenants' post-award. The Risk
Management Process for Federal Facilities: An Interagency Security
Committee Standard \6\ outlines the policies required for federal
tenants in consultation with the responsible Security Organization to
determine, set, and modify levels of security. The ownership
information collected through this rule will not affect the FSL
designation.
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\5\ A categorization based on the analysis of several security-
related facility factors, which serves as the basis for the
implementation of countermeasures specified in ISC standards. (See
ISC Standard, March 2021, available at <a href="https://www.cisa.gov/sites/default/files/publications/The%20Risk%20Management%20Process%20-%202021%20Edition_1.pdf">https://www.cisa.gov/sites/default/files/publications/The%20Risk%20Management%20Process%20-%202021%20Edition_1.pdf</a>).
\6\ See ISC Standard, March 2021, available at https <a href="https://www.cisa.gov/sites/default/files/publications/The%20Risk%20Management%20Process%20-%202021%20Edition_1.pdf">https://www.cisa.gov/sites/default/files/publications/The%20Risk%20Management%20Process%20-%202021%20Edition_1.pdf</a>.
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(C) Federal Government Leasing--Determining Countermeasures
Federal lessees follow the ISC Standard for physical security
criteria (PSC) for Federal Facilities. The standard establishes
baseline physical security countermeasures for each FSL. The standard
defines the process for determining the appropriate security measures
through the ISC Risk Management Process; it also covers any uncommon
measures required to address the unique risks at a particular facility.
The GSA Public Buildings Service Leasing Desk Guide currently uses the
PSC to prescribe the process for determining appropriate
countermeasures for a facility. Therefore, GSA assumes other federal
agency lessees adhere to ISC standards, as well, within their leasing
guides and use the criteria provided by ISC to calculate the level of
security required for the tenants.
(D) Compliance Plan
GSA assumes the following steps would most likely be part of an
agency's plan to collect and report owner disclosures using GSA's
governmentwide plan and GSAR 552.270-33 and 552.270-34:
1. Governmentwide Plan and Regulatory Familiarization.
[[Page 14061]]
The agency reads and understands the governmentwide plan and
potentially uses GSAR 552.270-33 and 552.270-34 for collection actions.
2. Workforce Training.
The agency must educate its purchasing/procurement professionals
\7\ to heighten their familiarity with GSA's governmentwide plan's
disclosure requirements (as applicable).
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\7\ GSA estimates that the purchasing/procurement professional
requiring training as a result of this rule on average would be
equal to a mid-career professional. The equivalent labor category
used to capture cost estimates, therefore, is a GS-12, Step 5, or
Journeyman Level 1.
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3. Compliance with the Revised Representation Clause.
The agency must identify and disclose whether entities do or do not
have a foreign beneficial owner of leased space. If an affirmative
disclosure is made for leases involving high-security space, GSA must
be notified of the disclosure made in the representation in accordance
with the schedule set forth in the GSA governmentwide plan.
(E) Benefits
This Act requires the disclosure of the identification of all
individuals who own or benefit from partial ownership of a property
that will be leased by the Federal Government for high-security use.
The statute is in response to GAO report GAO-17-195, titled ``Federal
Real Property: GSA Should Inform Tenant Agencies When Leasing High-
Security Space from Foreign Owners'' (available at <a href="https://www.gao.gov/products/gao-17-195">https://www.gao.gov/products/gao-17-195</a>) which indicated Federal agencies were vulnerable
to espionage and other intrusions because foreign actors could gain
unauthorized access to spaces used for classified operations or to
store sensitive data. Agencies store law enforcement evidence and other
sensitive data and are often unaware of foreign ownership of their
office spaces. While many of the foreign owners identified in the 2017
GAO report were companies based in allied countries, such as Canada,
Norway, Japan, or South Korea, other properties were owned and managed
by entities based in more adversarial nations. The report noted
Chinese-owned properties, in particular, presented security challenges
because of the country's proclivity for cyberespionage and the close
ties between private sector companies and the Chinese government. The
GAO report highlighted the dangers posed by these properties,
indicating that ``leasing space in foreign-owned buildings could
present security risks such as espionage, unauthorized cyber and
physical access to the facilities, and sabotage.''
The United States faces an expanding array of foreign intelligence
threats by adversaries who are using increasingly sophisticated methods
to harm the Nation.\8\ Threats to the United States posed by foreign
intelligence entities are becoming more complex and harmful to U.S.
interests.\9\ Foreign intelligence actors are employing innovative
combinations of traditional spying, economic espionage, and supply
chain and cyber operations to gain access to critical infrastructure
and steal sensitive information and industrial secrets.\10\ The
exploitation of key supply chains by foreign adversaries represents a
complex and growing threat to strategically important U.S. economic
sectors and critical infrastructure.\11\
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\8\ National Counterintelligence Strategy of the United States
of America 2020-2022.
\9\ National Counterintelligence Strategy of the United States
of America 2020-2022.
\10\ National Counterintelligence Strategy of the United States
of America 2020-2022.
\11\ National Counterintelligence Strategy of the United States
of America 2020-2022.
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Additionally, by requiring ``Beneficial Owner'' information in the
representation clause, Federal lessees will benefit by better
understanding how an individual's ownership position can provide them
access that could prove problematic for certain agencies. Congress
underscored that ``money launderers and others involved in commercial
activity intentionally conduct transactions through corporate
structures in order to evade detection, and may layer such structures .
. . across various secretive jurisdictions such that each time an
investigator obtains ownership records for a domestic or foreign
entity, the newly identified entity is yet another corporate entity,
necessitating a repeat of the same process.'' \12\ The ability to
engage in activity and obtain financial services in the name of a legal
entity without disclosing the identities of the natural persons who own
or control the entity--the natural persons whose interests the legal
entity most directly serves--enables those natural persons to conceal
their interests. And, as FinCEN has noted previously, such concealment
``facilitates crime, threatens national security, and jeopardizes the
integrity of the financial system.'' \13\ The goal of the Act is to
close security loopholes by directing Federal agencies to notify GSA
whether foreign owners have a stake in high-security buildings leased
by Federal agencies, either through foreign-incorporated legal entities
or through ownership in United States-incorporated legal entities,
particularly when the leased space is used for classified operations or
to store sensitive data. While GSA and other Federal agencies have made
positive changes in response to GAO's 2017 report, this rule will help
support current best practices being followed more uniformly throughout
the Federal Government.
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\12\ Corporate Transparency Act, section 6402(4).
\13\ Notice of Proposed Rulemaking: Customer Due Diligence
Requirements for Financial Institutions, 79 FR 45151, 45153 (August
4, 2014).
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Finally, this rule enables Federal lessees to obtain information on
foreign ownership and provide it to Federal occupant agencies.
(F) Public Costs
1. To estimate the aggregate burden to agencies of complying with
the Act, the number of disclosures to obtain was calculated using
numbers pulled from GSA's records and databases.\14\ As of December
2022, GSA has approximately 7,711 active leases. Of the 7,711,
approximately 1,228 \15\ (or 16 percent) of the leases are for high-
security lease space (lease space in a facility with a security level
of III, IV, or V).
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\14\ If not otherwise stated, numbers related to leases are
provided by the GSA Office of Leasing through surveying its internal
databases.
\15\ The GSA Office of Leasing provided this number by surveying
its internal database.
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2. GSA also delegates leasing authority to several agencies, which
are required to follow GSA's policies. GSA estimates there are 6,000
leases represented by these agencies with the delegated leasing
authority from GSA.\16\ GSA does not have data available that
identifies which of these leases are for high-security space. GSA
assumes that these agencies with delegated leasing authority have a
similar profile to GSA's for high-security leased space to total
portfolio space, i.e., 16 percent. This would bring the total number of
high-security lease space for agencies with delegated leasing authority
to 960 (6,000 x 16 percent).
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\16\ This information is based on internal inventory data
sources provided by the GSA Office of Leasing.
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3. Agencies possessing independent leasing authority are generally
not required to follow GSA's policies, except for subpart D of 41 CFR
part 102-73, made final by this rule. GSA indicates that there are 41
agencies with independent statutory leasing authority.\17\ Further, GSA
estimates there are 25,995 leases represented by these agencies.\18\
GSA does not have
[[Page 14062]]
data available to identify which of these leases are for high-security
space. GSA assumes these agencies have a similar profile to GSA's for
high-security leased space to total portfolio space, i.e., 16 percent.
This would bring the total number of high-security leased space for
agencies with independent leasing authority to 4,159 (25,995 x 16
percent).
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\17\ The GSA Office of Government-wide Policy used the Federal
Real Property Profile Management System to determine the number of
agencies with a lease authority indicator of independent statutory
authority.
\18\ This information is based on publicly available data
sources provided by the GSA Office of Government-wide Policy Real
Property Policy Division. <a href="https://www.gsa.gov/policy-regulations/policy/real-property-policy/asset-management/federal-real-property-profile-frpp/federal-real-property-public-data-set">https://www.gsa.gov/policy-regulations/policy/real-property-policy/asset-management/federal-real-property-profile-frpp/federal-real-property-public-data-set</a>.
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4. Based on historical data maintained by GSA's Office of Leasing,
GSA estimates that 6 percent of its high-security leased space will be
solicited for a new contract each year (6 percent of 1,228 = 74
leases). These solicitations result from a mix of expiring high-
security leases or new requirements for high-security facilities. GSA
assumes these trends will continue for the time horizon outlined by
this regulatory impact analysis. Based on historic bid rates and high
current vacancy levels, GSA further estimates that 3 lessors will make
offers for each of these high-security lease procurements for a total
of 222 offers (74 high-security leases awarded x 3 lessors competing
for each solicitation = 222). GSA assumes the same profile for agencies
with delegated leasing authority. This would bring the total number of
high-security leased space solicited for a new contract each year for
agencies with delegated leasing authority to 58 (6 percent of 960 = 58
leases). GSA further estimates that 3 lessors will make offers for each
of these delegated leasing authority agency high-security lease
procurements for a total of 174 offers (58 high-security leases awarded
x 3 lessors competing for each solicitation = 174). GSA assumes the
same profile for agencies with independent leasing authority. This
would bring the total number of high-security leased space solicited
for a new contract each year for agencies with independent leasing
authority to 250 (6 percent of 4,159 = 250). GSA further estimates that
3 lessors will make offers for each of these independent leasing
authority agency high-security lease procurements for a total of 750
offers (250 high-security leases awarded x 3 lessors competing for each
solicitation = 750).
5. Since 2014, GSA has averaged approximately 31 renewal options
per year for high-security leases (equal to approximately 17 percent of
all renewals options during the same period) and averaged approximately
106 extensions for existing high-security leases (also equal to
approximately 17 percent of all extensions during the same period). GSA
assumes the same trend will continue in subsequent years. GSA assumes
the same profile for agencies with delegated leasing authority. This
would bring the total number of renewal options per year for high-
security leases for delegated leasing authority agencies to 16 (equal
to approximately 17 percent of all renewals options during the same
period) and the total number of extensions for existing high-security
leases for delegated leasing authority agencies to 64 (also equal to
approximately 17 percent of all extensions during the same period). GSA
assumes the same profile for agencies with independent leasing
authority. This would bring the total number of renewal options per
year for high-security leases for independent leasing authority
agencies to 83 (equal to approximately 17 percent of all renewals
options during the same period) and the total number of extensions for
existing high-security leases for independent leasing authority
agencies to 333 (also equal to approximately 17 percent of all renewals
options for delegated and independent leasing authority during the same
period).
6. GSA processed 340 novations per year for the last two years
(therefore, approximately 4 percent of leases resulted in a novation
(340/7,711)). GSA does not have data on how many of those were related
to FSL III, IV, or V facilities. GSA will assume 16 percent of those
novations were for FSL III, IV, or V leases, based on the percentage of
high-security leased space in GSA's portfolio as noted above.
Therefore, it is assumed 54 novations were processed for high-security
leases in the last year (16 percent of 340 novations = 54). GSA assumes
the same profile for agencies with delegated and independent leasing
authority. This would bring the total number of novations per year for
delegated leasing authority agencies to 240 (4 percent of 6,000 leases
= 240) and the total number of high-security lease novations per year
for delegated leasing authority agencies to 38 (16 percent of 240
novations = 38). GSA assumes the same profile for agencies with
independent leasing authority. This would bring the total number of
novations per year for independent leasing authority agencies to 1,040
(4 percent of 25,995 leases = 1,040 novations) and the total number of
high-security lease novations for independent leasing authority
agencies to 166 (16 percent of 1,040 novations = 166).
A breakdown is provided in the table below.
----------------------------------------------------------------------------------------------------------------
Independent
Delegated lease
Part above GSA authority authority
agencies agencies
----------------------------------------------------------------------------------------------------------------
1, 2, 3............................... Leased Space............ 7,711 6,000 25,995
High-Security (HS) 1,228 960 4,159
Leased Space.
4..................................... HS New Procurements..... 74 58 250
HS New Offers........... 222 174 750
5..................................... HS Renewals............. 31 16 83
HS Extensions........... 106 64 333
6..................................... Novations............... 340 240 1,040
HS Novations............ 54 38 166
-----------------------------------------------
Total GSA, Delegated Authority Total of HS Lease 6,347 .............. ..............
Agencies, and Independent Lease Baseline.
Authority Agencies HS Leases
Baseline.
-------------------------------------------------------------------------
Total GSA, Delegated Authority ........................ 382 .............. ..............
Agencies, and Independent Lease
Authority Agencies New HS Leases
Baseline.
----------------------------------------------------------------------------------------------------------------
[[Page 14063]]
(G) Public Total Costs
GSA notes that the amendment to FMR part 102.73--Real Estate
Acquisition regarding real property acquisition to reflect current laws
and regulatory policies carries no direct cost to the public. Section 4
of the Secure Federal Lease Act focuses solely on the government's
required activities for the planning, disclosures and notifications,
reporting, and implementation of the Act by GSA and Federal agencies to
Congress.
(H) Government Cost Analysis
During the first and subsequent years after publication of the
rule, leasing acquisition members (which include a combination of
Leasing Contracting Officers, Lease Administration Managers, Realty
Specialists, and General Counsel) will need to learn about GSA's
government-wide plan and disclosure requirements. GSA estimates this
cost by multiplying the time required to review the regulations and
guidance implementing the rule by the estimated compensation, on
average, of a GS-12 leasing acquisition member, unless otherwise
specified. GSA assumes that leasing acquisition members will, on
average, stay consistent in subsequent years. The same numbers and
assumptions apply to agencies with delegated and independent leasing
authority, as well.
For consistency, the number of leases to be reviewed match the
numbers in the ``Total GSA, Delegated Authority Agencies, and
Independent Lease Authority Agencies HS Leases Baseline'' row (6,347
combined) and ``Total GSA, Delegated Authority Agencies, and
Independent Lease Authority Agencies New HS Leases Baseline'' row (382
combined) found in the table in subsection VII.(F)(6), above.
Below is a list of compliance activities related to regulatory
familiarization that GSA anticipates will occur:
1. Government Compliance With Public Law 116-276. Subsection 4(a)
Development of a Governmentwide Plan
The Government must educate its leasing acquisition members through
a governmentwide plan to heighten their familiarity with the collection
and reporting of the beneficial owners of high-security leased space.
a. GSA calculates it will take 160 hours in the second year to
create the plan. GSA estimates this cost by multiplying the time
required to develop and approve the plan by the estimated compensation,
on average, of a GS-12 step 5 (based on the 2023 pay table for Rest of
US). Therefore, GSA calculated the total estimated cost for this part
of the rule to be $9,806 (= 160 hours x $61.29 x 1).
GSA estimates that it will take 5 hours in outyears to update the
plan on a yearly basis. Therefore, GSA calculated the total estimated
cost for this part of the rule to be $306 (= 5 hours x $61.29 x 1).
b. GSA calculates it will take 80 hours in the second year to
submit the plan to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Transportation and
Infrastructure of the House of Representatives. GSA estimates this cost
by multiplying the time required to submit the plan by the estimated
compensation, on average, of a GS-12. Therefore, GSA calculated the
total estimated cost for this part of the rule to be $4,903 (= 80 hours
x $61.29 x 1).
c. GSA estimates that it will take approximately 2,178 leasing
acquisition members 30 minutes (0.5 hour \19\) to complete training
related to the plan.\20\ Therefore, GSA calculated the total estimated
cost for this part of the rule to be $66,745 (= 0.5 hours x $61.29 x
2,178).\21\
---------------------------------------------------------------------------
\19\ The hours estimated are an assumption based on historical
familiarization hours and subject matter expert judgment. Subject
matter experts include representatives from GSA's Office of Leasing,
including Realty Specialists and Leasing Contracting Officers.
\20\ Combined number of GSA lease members and lease members from
agencies with delegated and independent leasing authority.
\21\ All totals in the Government Cost Analysis section are
rounded.
---------------------------------------------------------------------------
After the initial training, GSA estimates it will take 15 minutes
(0.25 hours \22\) to maintain training related to the plan. Therefore,
GSA calculated the total estimated cost for this part of the rule to be
$33,372 (= 0.25 hours x $61.29 x 2,178).
---------------------------------------------------------------------------
\22\ The hours estimated are an assumption based on historical
familiarization hours and subject matter expert judgment. Subject
matter experts include representatives from GSA's Office of Leasing,
including Realty Specialists and Leasing Contracting Officers.
---------------------------------------------------------------------------
d. GSA estimates the 41 agencies with independent leasing authority
may review GSAR sections 522.270-33 and 522.270-34 in a limited
capacity to mirror GSA's policies. Therefore, GSA estimates those
agencies may spend less time than GSA reviewing the GSAR provisions as
they may write, review, and become familiar with their own internal
policies. GSA estimated, on average, a GS-12 would spend 1 hour per
year becoming familiar with GSAR sections 522.270-33 and GSAR 552.270-
34; therefore, it would take independent leasing agencies 30 minutes
(0.5 hours \23\) to review the GSAR. This would only occur for those
agencies in the first year of collection and reporting. Therefore, GSA
calculated the total estimated cost for this part of the rule to be
$1,256 (= 0.5 hours x $61.29 x 41).
---------------------------------------------------------------------------
\23\ The hours estimated are an assumption based on historical
familiarization hours and subject matter expert judgment. Subject
matter experts include representatives from GSA's Office of Leasing,
including Realty Specialists and Leasing Contracting Officers.
---------------------------------------------------------------------------
e. GSA calculates it will take 60 hours in the first year of
collection and reporting for agencies with independent leasing
authority to create their own policies in response to GSA's plan. GSA
estimates this cost by multiplying the time required to develop the
policy by the estimated compensation, on average, of a GS-12.
Therefore, GSA calculated the total estimated cost for this part of the
rule to be $150,773 (= 60 hours x $61.29 x 41).
GSA calculates it will take 2.5 hours in outyears to review the
policy and, if necessary, revise the policy. Therefore, GSA calculated
the total estimated cost for this part of the rule to be $6,282 (= 2.5
hours x $61.29 x 41).
f. GSA estimates agencies with independent leasing authority would
spend 30 minutes (0.5 hours \24\) training their workforce on their new
policy. Therefore, GSA calculated the total estimated cost for this
part of the rule to be $44,619 (= 0.5 hours x $61.29 x 1,456).
---------------------------------------------------------------------------
\24\ The hours estimated are an assumption based on historical
familiarization hours and subject matter expert judgment. Subject
matter experts include representatives from GSA's Office of Leasing,
including Realty Specialists and Leasing Contracting Officers.
---------------------------------------------------------------------------
GSA estimates agencies with independent leasing authority would
spend 15 minutes (0.25 hours \25\) training their workforce on their
policy in subsequent years. Therefore, GSA calculated the total
estimated cost for this part of the rule to be $22,310 (= 0.25 hours x
$61.29 x 1,456).
---------------------------------------------------------------------------
\25\ The hours estimated are an assumption based on historical
familiarization hours and subject matter expert judgment. Subject
matter experts include representatives from GSA's Office of Leasing,
including Realty Specialists and Leasing Contracting Officers.
---------------------------------------------------------------------------
2. Government Compliance With Public Law 116-276. Subsection 4(b),
Disclosures and Notifications
a. GSA estimates that, of the baseline high-security lessors for
GSA and agencies with delegated leasing authority, each year 10 percent
\26\ (or 219 lessors) will respond affirmatively that the offeror
``does'' have an ``immediate owner,'' or ``is'' owned or
[[Page 14064]]
controlled by another entity (or ``highest owner''), or ``does''
involve a ``foreign entity,'' or any combination of the foregoing, and
it will take leasing acquisition members approximately 5 hours to
collect this information. Therefore, GSA calculated the total estimated
cost for this part of the rule to be $67,113 (= 5 hours x $61.29 x
219).
---------------------------------------------------------------------------
\26\ GSAR Case 2021-G527.
---------------------------------------------------------------------------
GSA estimates it will take approximately 5 hours to collect the
information submitted by GSA lease contracting officers and agencies
with delegated leasing authority. Therefore, GSA calculated the total
estimated cost for this part of the rule to be $67,113 (= 5 hours x
$61.29 x 219).
b. GSA estimates that, of the new high-security lessors for GSA and
agencies with delegated leasing authority, each year 10 percent \27\
(or 13 lessors) will respond affirmatively that the offeror ``does''
have an ``immediate owner,'' or ``is'' owned or controlled by another
entity (or ``highest owner''), or ``does'' involve a ``foreign
entity,'' or any combination of the foregoing, and it will take leasing
acquisition members approximately 1 hour to submit this information to
GSA. Therefore, GSA calculated the total estimated cost for this part
of the rule to be $797 (= 1 hours x $61.29 x 13).
---------------------------------------------------------------------------
\27\ GSAR Case 2021-G527.
---------------------------------------------------------------------------
c. GSA estimates it will take approximately 5 hours to collect the
information submitted by GSA and agencies with delegated leasing
authority. Therefore, GSA calculated the total estimated cost for this
part of the rule to be $797 (= 1 hours x $61.29 x 13).
d. GSA estimates that, of the baseline high-security lessors for
agencies with independent leasing authority, each year 10 percent (or
416 lessors) will respond affirmatively that the offeror ``does'' have
an ``immediate owner,'' or ``is'' owned or controlled by another entity
(or ``highest owner''), or ``does'' involve a ``foreign entity,'' or
any combination of the foregoing, and it will take leasing acquisition
members approximately 5 hours to collect this information. Therefore,
GSA calculated the total estimated cost for this part of the rule to be
$127,483 (= 5 hours x $61.29 x 416).
GSA estimates it will take approximately 5 hours to collect the
information submitted by agencies with independent leasing authority.
Therefore, GSA calculated the total estimated cost for this part of the
rule to be $127,483 (= 5 hours x $61.29 x 416).
e. GSA estimates that, of the new high-security lessors for
agencies with independent leasing authority, each year 10 percent (or
25 lessors) will respond affirmatively that the offeror ``does'' have
an ``immediate owner,'', or ``is'' owned or controlled by another
entity (or ``highest owner''), or ``does'' involve a ``foreign
entity,'' or any combination of the foregoing, and it will take leasing
acquisition members approximately 1 hour to collect this information.
Therefore, GSA calculated the total estimated cost for this part of the
rule to be $1,532 (= 1 hours x $61.29 x 25).
GSA estimates it will take approximately 1 hour to collect the
information submitted by agencies with independent leasing authority.
Therefore, GSA calculated the total estimated cost for this part of the
rule to be $1,532 (= 1 hours x $61.29 x 25).
3. Government Compliance With Public Law 116-276. Subsection 4(c),
Report and Implementation
a. GSA estimates it will take 8 hours beginning in year 3 to submit
an annual report to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Transportation and
Infrastructure of the House of Representatives. Therefore, GSA
calculated the total estimated cost for this part of the rule to be
$490 (= 8 hours x $61.29 x 1).
4. Government Compliance With Public Law 116-276. Subsection 4(c)(3),
Secure Federal Lease Act Consideration of Implementation Improvements
a. GSA estimates it will take a total of 40 hours in years 3 and 4
to review and consider commercial technology offerings to improve data
collection. Therefore, GSA calculated the total estimated cost for this
part of the rule to be $2,452 (= 40 hours x $61.29 x 1).
b. GSA estimates it will take a total of 8 hours in years 5-10 to
review and consider new commercial technology offerings to improve data
collection. Therefore, GSA calculated the total estimated cost for this
part of the rule to be $306 (= 8 hours x $61.29 x 1).
5. Government Total Costs
The total cost of the above Cost Estimate is $605,207 in the first
year after publication.\28\ The total cost of the above Cost Estimate
in subsequent years is $72,432 annually.\29\
---------------------------------------------------------------------------
\28\ Total costs calculated by GSA.
\29\ Total costs calculated by GSA.
---------------------------------------------------------------------------
The following is a summary of the estimated costs calculated for a
10-year time horizon at a 3- and 7-percent discount rate:
------------------------------------------------------------------------
Summary Total costs
------------------------------------------------------------------------
Present Value (3 percent)............................... $1,052,989
Annualized Costs (3 percent)............................ 123,442
Present Value (7 percent)............................... 912,461
Annualized Costs (7 percent)............................ 129,914
------------------------------------------------------------------------
6. Overall Total Costs
The overall total cost is equal to subsection VII.(H), Government
Total Costs, above, as there is no direct cost to the public based on
the amendment to FMR part 102.73 as noted in subsection VII.(G), above.
(I) Analysis of Alternatives
The preferred alternative is the process laid out in the Act
whereby GSA annually collects disclosures from Federal lessees and then
reports that information to Congress.
Alternative 1: GSA could take no regulatory action to implement
this statute. However, this alternative would not provide any
implementation and enforcement of the important national security
measures imposed by the law. Moreover, the general public would not
experience the benefits of improved national security resulting from
the rule as detailed above in subsection VII.(E). As a result, we
reject this alternative.
Alternative 2: Federal lessees could send information on their
activity directly to Congress, rather than in a centralized approach
through GSA. However, GSA rejects this approach given the likelihood of
inconsistent collection and reporting of data along with potential
additional costs and burden to government agencies.
Alternative 3: GSA could follow the implementation approach based
on section 4 of the Act directing GSA to aggregate disclosures from
each Federal lessee one year after the implementation of the plan
described in subsection (a) of the Act, and each year thereafter for 9
years, submit a report to the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on Transportation
and Infrastructure of the House of Representatives on the status of the
implementation of the plan, including the number of disclosures. This
is the preferred method, which will allow GSA to help close security
loopholes by designing a verification system that identifies a
property's owners if the space would be used for high-security
purposes. In addition, this rule will help support current best
practices being followed more uniformly throughout the Federal
Government. Finally, this rule enables Federal lessees to obtain
information on foreign ownership and provide it to relevant Federal
occupant agencies.
[[Page 14065]]
List of Subjects in 41 CFR Part 102-73
Administrative practice and procedure, Federal buildings and
facilities, Rates and fares.
Robin Carnahan,
Administrator of General Services.
Therefore, GSA amends 41 CFR part 102-73 as set forth below:
PART 102-73--REAL ESTATE ACQUISITION
0
1. The authority citation for part 102-73 is revised to read as
follows:
Authority: 40 U.S.C. 121(c); sec. 3(c), Reorganization Plan No.
18 of 1950 (40 U.S.C. 301 note); sec. 1-201(b), E.O. 12072, as
amended by E.O. 13946, 85 FR 52879, Aug 27, 2020; Pub. L. 116-276,
134 Stat. 3362.
0
2. Revise Sec. 102-73.5 to read as follows:
Sec. 102-73.5 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;
except for subpart D of this part, which applies to Federal agencies
exercising independent leasing authority in addition to those agencies
operating under or subject to the authorities of the Administrator of
General Services.
0
3. Add subpart D to read as follows:
Subpart D--Secure Federal Leases From Espionage and Suspicious
Entanglements Act
Sec.
102-73.310 What are the governing authorities for this subpart?
102-73.315 What definitions apply to this subpart?
102-73.320 Who must comply with these provisions?
Information Collection
102-73.325 What information must a covered entity provide to the
Federal lessee?
102-73.330 What information must a Federal lessee provide to GSA?
102-73.335 When must Federal lessees provide information to GSA?
102-73.340 How must Federal lessees provide information to GSA?
Subpart D--Secure Federal Leases From Espionage and Suspicious
Entanglements Act
Sec. 102-73.310 What are the governing authorities for this subpart?
The governing authorities are the Secure Federal Leases from
Espionage and Suspicious Entanglements Act, Public Law 116-276, 134
Stat. 3362 (2020) (the ``Secure Federal LEASEs Act''), and 40 U.S.C.
121(c).
Sec. 102-73.315 What definitions apply to this subpart?
Beneficial owner means:
(1) With respect to a covered entity, an individual who, directly
or indirectly, through any contract, arrangement, understanding,
relationship, or otherwise--
(i) Exercises substantial control over the covered entity; or
(ii) Owns or controls not less than 25 percent of the ownership
interests of the covered entity.
(2) This definition is based on the Department of the Treasury
Financial Crimes Enforcement Network's Beneficial Ownership Information
Reporting Requirements at 31 CFR part 1010.
Control means, with respect to a covered entity:
(1) Having the authority or ability to determine how a covered
entity is used; or
(2) Having some decision-making power for the use of a covered
entity.
Covered entity, as defined by the Secure Federal LEASEs Act, means:
(1) A person, corporation, company, business association,
partnership, society, trust, or any other nongovernmental entity,
organization, or group; or
(2) Any governmental entity or instrumentality of a government.
Federal lessee, as defined by the Secure Federal LEASEs Act, means:
(1) The Administrator of General Services, the Architect of the
Capitol, or the head of any Federal agency, other than the Department
of Defense, that has independent statutory leasing authority; and
(2) Does not include the head of an element of the intelligence
community.
Highest-level owner means the entity that owns or controls an
immediate owner of the offeror or lessor, or that owns or controls one
or more entities that control an immediate owner of the offeror or
lessor. No entity owns or exercises control of the highest-level owner.
Immediate owner means an entity, other than the offeror or lessor,
that has direct control of the offeror or lessor. Indicators of control
include, but are not limited to, one or more of the following:
ownership or interlocking management, identity of interests among
family members, shared facilities and equipment, and the common use of
employees.
Sec. 102-73.320 Who must comply with these provisions?
Each Federal lessee and covered entity must cooperate and comply
with these provisions.
Information Collection
Sec. 102-73.325 What information must a covered entity provide to a
Federal lessee?
Sections 3 and 4 of the Secure Federal LEASEs Act require that,
before the Government may enter into a lease agreement or novation with
an entity for high-security leased space (defined as Facility Security
Level III, IV, or V), offerors must disclose whether the immediate
owner, highest-level owner, or beneficial owner of the leased space,
including an entity involved in the financing thereof, is a foreign
person or entity, including the country associated with the ownership
entity.
Sec. 102-73.330 What information must a Federal lessee provide to
GSA?
Federal lessees must provide the following information when sharing
their Secure Federal LEASEs Act disclosures with GSA:
(a) Name of the agency conducting the procurement;
(b) Date of disclosure;
(c) Solicitation number or Contract number (for novations);
(d) Type of Action (prior to entering a lease or prior to a
novation agreement);
(e) Total number of affirmative disclosures made (note--in some
instances, there may be more than one owner-of-a-type. If more than one
affirmative disclosure is made, include all disclosures);
(f) As part of the total number of disclosures made, was one of the
disclosures an affirmative immediate owner disclosure? If so, how
many?;
(g) As part of the total number of disclosures made, was one of the
disclosures an affirmative highest-level owner disclosure? If so, how
many?; and
(h) As part of the total number of disclosures made, was one of the
disclosures an affirmative beneficial owner disclosure? If so, how
many?
Sec. 102-73.335 When must Federal lessees provide information to GSA?
Federal lessees must submit the required information on an annual
basis.
Sec. 102-73.340 How must Federal lessees provide information to GSA?
Federal lessees must submit the required information to GSA by
email at <a href="/cdn-cgi/l/email-protection#6635202a272601150748010910"><span class="__cf_email__" data-cfemail="297a6f6568694e5a48074e465f">[email protected]</span></a>.
[FR Doc. 2023-04340 Filed 3-6-23; 8:45 am]
BILLING CODE 6820-14-P
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