Proposed Rule2023-23477
Federal Management Regulation; Designation of Authority and Sustainable Siting
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
October 24, 2023
Issuing agencies
General Services Administration
Abstract
GSA, in furtherance of its authority to furnish space to Federal agencies, proposes to amend the Federal Management Regulation (FMR) to elaborate on the factors that are advantageous to the Government when planning for location decisions. In addition, the proposed revisions are necessary to bring the current regulation into compliance with updated terminology in statute and Office of Management and Budget (OMB) bulletins. The objective of these changes is to direct agencies to better integrate strategic, holistic analysis into planning for agency location decisions and to provide consistency in application of these regulations across Federal agencies and regions.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 204 (Tuesday, October 24, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 204 (Tuesday, October 24, 2023)]
[Proposed Rules]
[Pages 72974-72985]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23477]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
41 CFR Part 102-83
[FMR Case 2023-102-1; Docket No. GSA-FMR-2023-0012; Sequence No. 1]
RIN 3090-AK69
Federal Management Regulation; Designation of Authority and
Sustainable Siting
AGENCY: Office of Government-wide Policy (OGP), General Services
Administration (GSA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: GSA, in furtherance of its authority to furnish space to
Federal agencies, proposes to amend the Federal Management Regulation
(FMR) to elaborate on the factors that are advantageous to the
Government when planning for location decisions. In addition, the
proposed revisions are necessary to bring the current regulation into
compliance with updated terminology in statute and Office of Management
and Budget (OMB) bulletins. The objective of these changes is to direct
agencies to better integrate strategic, holistic analysis into planning
for agency location decisions and to provide consistency in application
of these regulations across Federal agencies and regions.
DATES: Interested parties should submit comments in writing on or
before December 26, 2023 to be considered in the formulation of the
final rule.
ADDRESSES: Submit comments in response to FMR Case 2023-102-1 to
<a href="http://Regulations.gov">Regulations.gov</a> at <a href="http://www.regulations.gov">http://www.regulations.gov</a> via the Federal
eRulemaking portal by searching for ``FMR Case 2023-102-1.'' Select the
link ``Comment Now'' that corresponds with ``FMR Case 2023-102-1.''
Follow the instructions provided at the ``Comment Now'' screen. Please
include your name, company name (if any), and ``FMR Case 2023-102-1''
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 2023-
102-1 in all correspondence related to this case. Comments received
generally will be posted without change to <a href="http://www.regulations.gov">http://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, Office of Government-wide Policy, at 202-208-2956.
For information pertaining to status or publication schedules, contact
the Regulatory Secretariat Division (MVCB), 1800 F Street NW,
Washington, DC 20405, 202-501-4755. Please cite FMR Case 2023-102-1.
SUPPLEMENTARY INFORMATION:
I. Background
The Administrator of General Services (Administrator) is authorized
to acquire
[[Page 72975]]
real estate and interests in real estate to accommodate the space needs
of Federal agencies. In particular, these authorities are codified at
40 U.S.C. 301 note (specifically, the 1950 Reorganization Plan No. 18),
113(d), 581(c)(1), 585, 3304, and 28 U.S.C. 462(f). In addition, 40
U.S.C. 584 requires the Administrator to assign space to executive
agencies in accordance with policies and directives the President
prescribes under 40 U.S.C. 121(a), after consultation with the affected
agency, and based on a determination by the Administrator that the
assignment or reassignment is advantageous to the Government in terms
of economy, efficiency, or national security.
There are several other statutory authorities that underlie Federal
site location policy. The Rural Development Act of 1972, as amended (7
U.S.C. 2204b-1) (RDA), requires executive agencies to give first
priority to locating in rural areas. The Federal Urban Land Use Act of
1949, as amended (40 U.S.C. 901-905), requires GSA and other Federal
agencies to consult with the unit of general local government
exercising zoning and land use jurisdiction so that Federal urban land
acquisitions and uses are developed in accordance with local zoning,
land use practices and planning and development objectives to the
greatest extent practicable. The National Historic Preservation Act of
1966, as amended (54 U.S.C. 300101 et seq.) (NHPA), encourages the
preservation and utilization of all usable elements of the Nation's
historic built environment. The Competition in Contracting Act of 1984,
as amended (41 U.S.C. 3301 et seq.)(CICA), requires executive agencies
to consider whether the location decision or delineated area will
provide for adequate competition when acquiring leased space. Finally,
40 U.S.C. 121(c) authorizes the Administrator of General Services to
issue regulations that the Administrator considers necessary to carry
out the Administrator's functions under, as relevant here, subtitle I
of chapter 40 of the United States Code. Thus, this rule implements the
requirements of the statutes described above and establishes factors to
be considered in the pre-procurement or acquisition process for Federal
agency location decisions.
This rule updates the existing part 102-83 by incorporating new
terminology, but continues to implement the underlying principles for
location decisions that have been in existence for almost 50 years.
These principles were first incorporated in 41 CFR part 101-17,
Assignment and Utilization of Space (45 FR 37200-37206, June 2, 1980),
and continue to be the foundation for the factors elaborated on today.
The procedures for location decisions were eventually given a separate
part in the FMR in 2002, when 41 CFR part 102-83, Location of Space,
was issued. This part was last revised and published in the Federal
Register on November 8, 2005 (70 FR 67857-67860).
The rule continues to be guided by the longstanding Executive Order
(E.O.) 12072, ``Federal Space Management,'' which prescribes policies
and directives for the planning, acquisition, utilization, and
management of Federal space facilities in accordance with 40 U.S.C.
121(a) (43 FR 36869, August 18, 1978). E.O. 12072 requires that
``serious consideration'' be given ``to the impact a site selection
will have on improving the social, economic, environmental, and
cultural conditions of the communities in the urban area.''
In addition, in accordance with the NHPA and consistent with E.O.
12072, E.O. 13006, ``Locating Federal Facilities on Historic Properties
in Our Nation's Central Cities'' (80 FR 15871, May 24, 1996), requires
Federal agencies to give first consideration to historic properties
within historic districts. If no such property is suitable, then
Federal agencies must consider other developed or undeveloped sites
within historic districts. If no suitable site exists within historic
districts, Federal agencies must then consider historic properties
outside of historic districts.
Other E.O.s and more recent administration policies further inform
this rule by providing new terminology to help understand and address
what it means to consider the impact of social, economic,
environmental, and cultural conditions. For example, E.O
11988,''Floodplain Management'' (42 FR 26951, May 24, 1977), as amended
by E.O 13690, ``Establishing a Flood Risk Management Standard and a
Process for Further Soliciting and Considering Stakeholder Input'' (80
FR 6425, Jan. 30, 2015), and E.O. 11990, ``Wetlands Protection'' (42 FR
26961, May 24, 1977), direct agencies to avoid locating in a floodplain
and disturbing wetlands. E.O. 14057, ``Catalyzing Clean Energy
Industries and Jobs Through Federal Sustainability'' (86 FR 70935,
December 8, 2021), its accompanying Implementing Instructions, dated
August 31, 2022, and the associated OMB, White House Council on
Environmental Quality and National Climate Policy Office memorandum (M-
22-06, 12/8/2021) direct Federal agencies to promote sustainable
locations for Federal facilities and strengthen the vitality and
livability of the communities in which Federal facilities are located.
These directives charge agencies with advancing sustainable land use
that promotes the conservation of natural resources, reduced greenhouse
gas (GHG) emissions and increased resilience to the impacts of climate
change; efficient use of local infrastructure; expanded public
transportation use and access; equitable development that promotes
environmental justice and economic opportunity for disadvantaged
communities; and coordination and alignment with the development plans
of Tribal, State, and local or regional governments that advance these
and related goals. Note that while E.O. 12072 and E.O. 13006 only
address urban areas, E.O. 14057 applies many of the same goals to both
urban and rural areas.
E.O. 14008, ``Tackling the Climate Crisis at Home and Abroad'' (86
FR 7619, January 27, 2021), directs Federal agencies to employ a
Government-wide approach across a wide range of activities and goals
related to tackling the climate change crisis. Most relevant to this
part, it directs agencies to reduce climate pollution and increase
resilience to the impacts of climate change, and seek environmental
justice and spur economic opportunity for disadvantaged communities
that have been historically marginalized and overburdened by pollution
and underinvestment in housing, transportation, water and wastewater
infrastructure, and health care.
E.O. 14091, ``Further Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government'' (88 FR 10825,
February 16, 2023), directs Federal agencies to advance equity for all
communities, especially those populations that historically have
suffered from underinvestment and inequality, discrimination and
persistent poverty, and to give equitable treatment to all individuals
in a consistent and systematic manner. The order further promotes
efficiency by directing Federal agencies, when planning for federally
owned and leased facilities, to consider locations near existing
employment centers and public transit so that a broad range of the
region's workforce and population may access the jobs and services at
those facilities. This enables the agencies for which GSA provides
space to more readily carry out their missions. Where the Federal
development may spur displacement of current community populations, the
E.O. instructs Federal agencies to engage further with those
[[Page 72976]]
communities and the relevant regional and local officials to address
displacement risks.
E.O. 14096, ``Revitalizing Our Nation's Commitment to Environmental
Justice for All'' (88 FR 25251, April 21, 2023), builds on the E.O.s
described above to reinforce agency use of data analysis in identifying
communities suffering environmental injustice, including related to
climate change and cumulative impacts, and targeting mitigation or harm
avoidance through Federal actions. GSA and other Federal agencies can
use various data sets and tools, such as the Climate and Economic
Justice Screening Tool \1\ (CEJST), to identify if proposed locations
for federally owned and leased facilities are in geographically defined
disadvantaged communities. The tool has an interactive map and uses
datasets that are indicators of burdens in eight categories: climate
change, energy, health, housing, legacy pollution, transportation,
water and wastewater, and workforce development. The tool uses this
information to identify communities that are experiencing these
burdens. These are the communities that are disadvantaged because they
are overburdened and underserved. The order also re-emphasizes
consultation and engagement with members of affected communities that
allow meaningful participation for those communities in agency
decision-making, including individuals with limited English proficiency
and individuals with disabilities. This is in keeping with the
requirements of the Federal Urban Land Use Act.
---------------------------------------------------------------------------
\1\ The CEJST tool is available at <a href="https://screeningtool.geoplatform.gov/en/">https://screeningtool.geoplatform.gov/en/</a>.
---------------------------------------------------------------------------
As mentioned above, the principles that underlie this rule have
been in existence for decades and it is well established that GSA has
broad discretion regarding the substance of this regulation because it
involves managerial and economic choices that are dependent on GSA's
special expertise in this area. Moreover, when a project subject to 40
U.S.C. 3307 is contemplated, as part of the appropriation process, GSA
provides the Committee on Environment and Public Works of the Senate
and the Committee on Transportation and Infrastructure of the House of
Representatives notice of the potential location of the project and a
comprehensive plan that demonstrates that the project will enhance the
architectural, historical, social, cultural, and economic environment
of the locality. Thus, by adopting resolutions approving the
appropriation of the funds for the proposed project, there is a
presumption of congressional approval of the delineated area and the
process completed by which either GSA or the agencies operating under
GSA's authority, or both, establish the location decision. The
congressional approval of the location decision is further evidenced by
a provision that Congress routinely includes in GSA's annual
appropriations act (See, for example, section 525 of title V of
division E of section 2 of the Consolidated Appropriations Act, 2023,
Pub. L. 117-328, 136 Stat. 4459, 4687). That provision requires the
Administrator to ensure that the delineated area of a prospectus-level
lease procurement is identical to the delineated area included in the
approved prospectus and, if the Administrator determines that the
delineated area of the procurement should not be identical to the
delineated area included in the prospectus, the Administrator must
provide an explanatory statement to GSA's authorizing and
appropriations committees.
For non-prospectus projects, GSA exercises its discretion in
accordance with the principles that underlie this rule.
It is important to note that these proposed rule changes work in
concert with, and not in lieu of, agency mission and physical security
needs, CICA, cost considerations, consolidation and reductions in
square footage, prioritizing federally owned space, and other
procurement policies. In accordance with the statutes and policies
described above, the optimal Federal location decision is the one that
meets Federal agency mission needs, at an appropriate cost to
taxpayers, while achieving the necessary level of security and
leveraging Federal development in support of other Federal and local
goals.
This proposed rule will revise in its entirety 41 CFR part 102-83,
Location of Space. Federal agencies operating under or subject to the
real property authorities of the Administrator of General Services must
comply with the provisions of the FMR that cover real property (41 CFR
parts 102-71 through 102-86).
II. Major Changes
The following updates and clarification changes are proposed for
part 102-83:
<bullet> Social, Economic, Environmental, and Cultural Factors in
Location Decisions
The rule now more explicitly explains the factors associated with
social, economic, environmental, and cultural conditions to be
considered in location decisions.
<bullet> Central Cities to Principal Cities
The term ``central cities'' has, for many years, been retired in
favor of the term ``principal cities,'' as published in the OMB ``2010
Standards for Delineating Metropolitan and Micropolitan Statistical
Areas'' (the 2010 Standards). This term reflects new consideration for
how single or multiple urban centers function as commuting destinations
and population centers within a single core-based statistical area
(CBSA). This proposed rule updates the terminology throughout the part
accordingly.
<bullet> Metropolitan Areas to Core-Based Statistical Areas
The shift from metropolitan areas (MA) to CBSAs reflects the change
that first appeared in the OMB ``2000 Standards for Delineating
Metropolitan and Micropolitan Statistical Areas'' (the 2000 Standards)
to recognize both MAs and micropolitan statistical areas as having an
urbanized core and surrounding areas with a high degree of integration
to that core. The 2000 Standards were replaced and superseded by the
2010 Standards, and the most recent delineations for CBSA boundaries
appeared in OMB Bulletin No. 18-04 on September 14, 2018. This proposed
rule updates the term throughout the part accordingly.
<bullet> Urban/Rural Definitions
The definitions for ``urban area'' and ``rural area'' in the
existing regulations are difficult to interpret because they draw on
two different sources, and these definitions are not necessarily
mutually exclusive from one another. The current part 102-83 has a
definition for urban that relies on the boundaries of MAs defined by
OMB.
The current definition for rural area comes not from the RDA, but
rather from the Consolidated Farmers Home Administration Act of 1961
(CHSA), as amended by the Farm Security and Rural Investment Act of
2002, which identifies a rural area for general purposes of CSHA as any
area except a city or town with a population greater than 50,000 people
or adjacent urbanized areas. The original definition of rural area
applicable to the RDA was stricken from the statute and, subsequently,
GSA adopted the CHSA definition. The circularity of these current
definitions, however, makes the boundaries of urban and rural difficult
to interpret. Among the difficulties are the fact that the boundaries
established by the definitions do not relate to
[[Page 72977]]
jurisdictional boundaries and are measured at the fine grain of census
blocks, meaning that adjacent parcels within the same jurisdiction may
be designated one as rural and the other as urban. With urban and rural
areas immediately across the street from each other, making the case
that an agency can only meet its need in the parcel designated as urban
rather than the adjacent parcel designated rural, or vice versa,
needlessly opens the Federal space action to protest.
Given that subsequent revisions of the RDA have actually eliminated
the original definition of rural area, GSA has chosen a definition that
better meets the needs of the Federal location decision process, and
this proposed rule simplifies the definition to the boundaries of
CBSAs, which follow county lines. Those areas contained within the
boundaries are considered urban, and those outside the boundaries are
considered rural. As with the current definitions, agency mission need
remains the primary determinant of whether a Federal agency will seek
space in an urban or rural area.
<bullet> Considering Real Estate Cost and Efficiency Factors
Federal location policy has long advocated that Federal agencies
balance cost, mission and real estate efficiencies, as well as local
development goals, when making location decisions. This derives from
statute and related policies. This revised part enumerates these
factors to encourage agencies to reach balanced, holistic decisions,
and to clarify agency latitude to consider cost and other business
factors.
<bullet> Local Consultation Requirements
The various governing authorities and directives for this part
require that Federal agencies consult with local officials when making
real estate decisions and that they seek opportunities for Federal
action to support local development objectives. These authorities and
policies include the Federal Urban Land Use Act of 1949 (40 U.S.C. 901-
905); the RDA; and E.O. 12072. For the Federal Government to consider
locating Federal facilities in a specific area or jurisdiction in
keeping with the goals of this part, the existing or planned
development composition for that area needs to be appropriate both to
meeting Federal agency mission and space needs and local development
goals.
Determining whether a specific area is appropriate for Federal
facilities calls for consultation with local officials and community
leaders, including American Indians, Native Alaskans, and Native
Hawaiian Organizations in applicable geographies, to better understand
local conditions and development goals, including those related to
sustainability, climate change mitigation and resilience, and
environmental justice. Further, where Federal agencies determine
through data analysis, including through use of CEJST or other
applicable Federal tools, and local consultation that displacement
risks or other environmental justice concerns exist for current
populations in the vicinity of a planned facility, Federal agencies are
directed to engage with the affected communities and relevant regional
and local officials to address mitigating those risks.
To encourage both effective long-term consultation and efficient
processes that are not overly burdensome to Federal agencies, this
revised part outlines the latitude that agencies have to develop
efficient internal policy and procedure.
III. Executive Orders 12866, 13563, and 14094
Executive Order (E.O.) 12866 (Regulatory Planning and Review)
directs 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 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. E.O. 14094 (Modernizing Regulatory Review) amends Section
3(f) of Executive Order 12866 and supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in E.O. 12866 and E.O. 13563. The Office
of Management and Budget's, Office of Information and Regulatory
Affairs (OIRA) has determined that this rule is a significant
regulatory action and, therefore, it is subject to review under section
6(b) of E.O. 12866.
IV. Regulatory Flexibility Act
GSA does not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
V. Regulatory Impact Analysis
During the first and subsequent years after publication of the
rule, new construction members and leasing acquisition members (which
include a combination of Planning Managers, Site Acquisition Staff,
Program Managers, Lease Contracting Officers, and Lease Project
Managers) will need to learn about GSA's government-wide plan and
compliance requirements.
GSA estimates this cost by multiplying the time required to review
the regulations and guidance implementing the rule by the estimated
hourly compensation. GSA calculates the estimated hourly compensation
using the U.S. Office of Personnel Management's 2023 General Schedule
(GS) Rest of United States Locality Pay Table and the full fringe
benefit cost factor of 36.25%.<SUP>2 3 4</SUP>
---------------------------------------------------------------------------
\2\ General Schedule (<a href="http://opm.gov">opm.gov</a>).
\3\ OMB Memo M-08-13, dated March 11, 2008.
\4\ Computing Hourly Rates of Pay Using the 2,087-Hour Divisor
(<a href="http://opm.gov">opm.gov</a>).
---------------------------------------------------------------------------
GSA assumes the new construction members and leasing acquisition
members will, on average, stay consistent in the subsequent years. GSA
also delegates leasing authority to several agencies, which are
required to follow GSA's policies. As of July 2023, GSA has 9 active
agencies using delegated leasing authority. Numbers and assumptions
apply to delegated leasing agencies as well.
1. Government Costs
a. New Construction
The Government must educate its new construction members via a
government-wide plan to heighten their familiarity with the rule. Below
is a list of training and communication activities related to
regulatory familiarization and compliance that GSA anticipates will
occur.
GSA estimates it will take 5 GSA employees on average, with a GS-14
step 5 with an average hourly rate of $86.12/hour, 20 hours each in
year 1 to develop new content for planning managers and site
acquisition staff training. Therefore, GSA estimates the total
estimated cost for this part of the rule to be $8,612 (= 5 x $86.12 GS-
14 step 5 rate x 20 hours).
GSA estimates it will take 5 GSA employees on average, with a GS-14
step 5 with an average hourly rate of $86.12/hour, 1 hour each in years
3, 5, 7, and 9 to update new content for planning managers and site
acquisition staff training. Therefore, GSA estimates the total annual
estimated cost for this part of the rule to be $431 (= 5 x $86.12 GS-14
step 5 rate x 1 hour).
GSA estimates it will take 5 GSA employees on average, with a GS-14
step 5 with an average hourly rate of $86.12/hour, 1.5 hours each in
years 1,
[[Page 72978]]
3, 5, 7, and 9 to deliver new training content to planning managers and
site acquisition staff. Therefore, GSA estimates the total annual
estimated cost for this part of the rule to be $646 (= 5 x $86.12 GS-14
step 5 rate x 1.5 hours).
GSA estimates it will take 103 GSA planning managers and site
acquisition staff on average, with a GS-13 step 5 with an average
hourly rate of $72.88/hour, 1.5 hours each in years 1, 3, 5, 7, and 9
to receive new training content. Therefore, GSA estimates the total
annual estimated cost for this part of the rule to be $11,259 (= 103 x
$72.88 GS-13 step 5 rate x 1.5 hours).
GSA estimates it will take 5 GSA employees on average, with a GS-14
step 5 with an average hourly rate of $86.12/hour, 4 hours each in year
1 to develop new content for training for client agencies. Therefore,
GSA estimates the total estimated cost for this part of the rule to be
$1,722 (= 5 x $86.12 GS-14 step 5 rate x 4 hours).
GSA estimates it will take 5 GSA employees on average, with a GS-14
step 5 with an average hourly rate of $86.12/hour, 1 hour each in years
3, 5, 7, and 9 to develop new content for training for client agencies.
Therefore, GSA estimates the total annual estimated cost for this part
of the rule to be $431 (= 5 x $86.12 GS-14 step 5 rate x 1 hour).
GSA estimates it will take 5 GSA Central Office program managers on
average, with a GS-14 step 5 with an average hourly rate of $86.12/
hour, 1.5 hours each in years 1, 3, 5, 7, and 9 to provide training to
client agencies. Therefore, GSA estimates the total annual estimated
cost for this part of the rule to be $646 (= 5 x $86.12 GS-14 step 5
rate x 1.5 hours).
GSA estimates it will take 400 client agency employees on average,
with a GS-13 step 5 with an average hourly rate of $72.88/hour, 1.5
hours each in years 1, 3, 5, 7, and 9 to receive training. Therefore,
GSA estimates the total annual estimated cost for this part of the rule
to be $43,726 (= 400 x $72.88 GS-13 step 5 rate x 1.5 hours).
GSA estimates it will take 11 GSA regional office employees on
average, with a GS-13 step 5 with an average hourly rate of $72.88/
hour, 1 hour each in years 1, 3, 5, 7, and 9 to provide additional
communications from GSA regional offices to client agency regional
offices on the new training content. Therefore, GSA estimates the total
annual estimated cost for this part of the rule to be $802 (= 11 x
$72.88 GS-13 step 5 rate x 1 hour).
GSA estimates it will take 400 client agency regional office
employees on average, with a GS-13 step 5 with an average hourly rate
of $72.88/hour, 0.5 hours each in years 1, 3, 5, 7, and 9 to review the
GSA regional office communications on the new training content.
Therefore, GSA estimates the total annual estimated cost for this part
of the rule to be $14,575 (= 400 x $72.88 GS-13 step 5 rate x 0.5
hours).
GSA estimates it will take 2 GSA project managers on average, with
a GS-13 step 5 with an average hourly rate of $72.88/hour, 2 hours each
in years 1, 3, 5, 7, and 9 to share GSA site selection analysis
information with community organizations. Therefore, GSA estimates the
total annual estimated cost for this part of the rule to be $292 (= 2 x
$72.88 GS-13 step 5 rate x 2 hours).
b. Leased Buildings
The Government must educate its leasing acquisition members via a
government-wide plan to heighten their familiarity with the rule. Below
is a list of training and communication activities related to
regulatory familiarization and compliance that GSA anticipates will
occur.
GSA estimates it will take 3 GSA employees on average, with a GS-14
step 5 with an average hourly rate of $86.12/hour, 5 hours each in year
1 to develop new contract language relating to location and
preferences. Therefore, GSA estimates the total estimated cost for this
part of the rule to be $1,292 (= 3 x $86.12 GS-14 step 5 rate x 5
hours).
GSA estimates it will take 3 GSA employees on average, with a GS-14
step 5 with an average hourly rate of $86.12/hour, 1 hour each in years
2 and 3 to develop new contract language relating to location and
preferences. Therefore, GSA estimates the total annual estimated cost
for this part of the rule to be $258 (= 3 x $86.12 GS-14 step 5 rate x
1 hour).
GSA estimates it will take 1 GSA employee on average, with an SES
Level 3 with an average hourly rate of $127.31/hour, 2 hours in year 1
to develop new contract language relating to location and preferences.
Therefore, GSA estimates the total estimated cost for this part of the
rule to be $255 (= 1 x $127.31 SES Level 3 rate x 2 hours).
GSA estimates it will take 1 GSA employee on average, with an SES
Level 3 with an average hourly rate of $127.31/hour, 1 hour in years 2
and 3 to develop new contract language relating to location and
preferences. Therefore, GSA estimates the total annual estimated cost
for this part of the rule to be $127 (= 1 x $127.31 SES Level 3 rate x
1 hour).
GSA estimates it will take 3 GSA employees on average, with a GS-14
step 5 with an average hourly rate of $86.12/hour, 5 hours each in year
1 to update existing locational policy guidance. Therefore, GSA
estimates the total estimated cost for this part of the rule to be
$1,292 (= 3 x $86.12 GS-14 step 5 rate x 5 hours).
GSA estimates it will take 3 GSA employees on average, with a GS-14
step 5 with an average hourly rate of $86.12/hour, 1 hour each in years
2 and 3 to update existing locational policy guidance. Therefore, GSA
estimates the total annual estimated cost for this part of the rule to
be $258 (= 3 x $86.12 GS-14 step 5 rate x 1 hour).
GSA estimates it will take 1 GSA employee on average, with an SES
Level 3 with an average hourly rate of $127.31/hour, 2 hours in year 1
to update existing locational policy guidance. Therefore, GSA estimates
the total estimated cost for this part of the rule to be $255 (= 1 x
$127.31 SES Level 3 rate x 2 hours).
GSA estimates it will take 1 GSA employee on average, with an SES
Level 3 with an average hourly rate of $127.31/hour, 1 hour in years 2
and 3 to update existing locational policy guidance. Therefore, GSA
estimates the total annual estimated cost for this part of the rule to
be $127 (= 1 x $127.31 SES Level 3 rate x 1 hour).
GSA estimates it will take 1 GSA employee on average, with a GS-13
step 5 with an average hourly rate of $72.88/hour, 1 hour in year 1 to
update training for Lease Contracting Officers and Lease Project
Managers. Therefore, GSA estimates the total estimated cost for this
part of the rule to be $73 (= 1 x $72.88 GS-13 step 5 rate x 1 hour).
GSA estimates it will take 1 GSA employee on average, with a GS-13
step 5 with an average hourly rate of $72.88/hour, 1 hour in year 1 to
deliver training to Lease Contracting Officers and Lease Project
Managers. Therefore, GSA estimates the total estimated cost for this
part of the rule to be $73 (= 1 x $72.88 GS-15 step 5 rate x 1 hour).
GSA estimates it will take 650 GSA Lease Contracting Officers and
Lease Project Managers on average, with a GS-12 step 5 with an average
hourly rate of $61.29/hour, 1 hour each in year 1 to receive training.
Therefore, GSA estimates the total estimated cost for this part of the
rule to be $39,836 (= 650 x $61.29 GS-12 step 5 rate x 1 hour).
GSA estimates it will take 650 GSA Lease Contracting Officers and
Lease Project Managers on average, with a GS-12 step 5 with an average
hourly rate of $61.29/hour, 0.5 hours each in years 3, 5, 7, and 9 to
receive training. Therefore, GSA estimates the total annual estimated
cost for this part of the rule
[[Page 72979]]
to be $19,918 (= 650 x $61.29 GS-12 step 5 rate x 0.5 hours).
GSA estimates it will take 500 Lease Contracting Officers and Lease
Project Managers from delegated leasing agencies \5\ on average, with a
GS-12 step 5 with an average hourly rate of $61.29/hour, 1 hour each in
year 1 to receive GSA training. Therefore, GSA estimates the total
estimated cost for this part of the rule to be $30,643 (= 500 x $61.29
GS-12 step 5 rate x 1 hour).
---------------------------------------------------------------------------
\5\ The GSA Office of Leasing provided this number as an
averaged total across delegated leasing agencies by surveying their
internal database.
---------------------------------------------------------------------------
GSA estimates it will take 500 Lease Contracting Officers and Lease
Project Managers from delegated leasing agencies on average, with a GS-
12 step 5 with an average hourly rate of $61.29/hour, 0.5 hours each in
years 3, 5, 7, and 9 to receive GSA training. Therefore, GSA estimates
the total annual estimated cost for this part of the rule to be $15,322
(= 500 x $61.29 GS-12 step 5 rate x 0.5 hours).
GSA estimates it will take 9 employees from delegated leasing
agencies on average, with a GS-13 step 5 with an average hourly rate of
$72.88/hour, 1 hour each in year 1 to update delegated leasing agency
training for Lease Contracting Officers and Lease Project Managers.
Therefore, GSA estimates the total estimated cost for this part of the
rule to be $656 (= 9 x $72.88 GS-13 step 5 rate x 1 hour).
GSA estimates it will take 9 employees from delegated leasing
agencies on average, with a GS-13 step 5 with an average hourly rate of
$72.88/hour, 1 hour each in year 1 to deliver training to Lease
Contracting Officers and Lease Project Managers. Therefore, GSA
estimates the total estimated cost for this part of the rule to be $656
(= 9 x $72.88 GS-13 step 5 rate x 1 hour).
GSA estimates it will take 500 Lease Contracting Officers and Lease
Project Managers from delegated leasing agencies on average, with a GS-
12 step 5 with an average hourly rate of $61.29/hour, 1 hour each in
year 1 to receive delegated leasing agency training. Therefore, GSA
estimates the total estimated cost for this part of the rule to be
$30,643 (= 500 x $61.29 GS-12 step 5 rate x 1 hour).
GSA estimates it will take 500 Lease Contracting Officers and Lease
Project Managers from delegated leasing agencies on average, with a GS-
12 step 5 with an average hourly rate of $61.29/hour, 0.5 hours each in
years 3, 5, 7, and 9 to receive delegated leasing agency training.
Therefore, GSA estimates the total estimated cost for this part of the
rule to be $15,322 (= 500 x $61.29 GS-12 step 5 rate x 0.5 hours).
Total Government Costs
GSA estimates the total estimated Government costs to be $682,967
for years 1 through 10. A breakdown of total estimated Government costs
by year is provided in the table below.\6\
---------------------------------------------------------------------------
\6\ Costs are rounded to the nearest thousand.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1 2 3 4 5 6 7 8 9 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Part a New Construction................... $82,000 ......... $73,000 ......... $73,000 ......... $73,000 ......... $73,000 .........
Part b Leased Buildings................... 106,000 1,000 51,000 ......... 51,000 ......... 51,000 ......... 51,000 .........
-------------------------------------------------------------------------------------------------------------
Total Government Costs................ 188,000 1,000 124,000 ......... 124,000 ......... 124,000 ......... 124,000 .........
--------------------------------------------------------------------------------------------------------------------------------------------------------
2. Public Costs
Public costs associated with this rule include small entities of
community organizations in areas GSA is considering for new
construction. GSA assumes for each site selection transaction, the
agency will engage with 1 small entity which on average will have two
employees. Those employees would receive, review and share GSA site
selection analysis information. GSA estimates the average hourly rate
of $86.12 for the small entity employees as the private sector pay
equivalent of a GS-14 step 5. GSA estimates it will engage with 1 small
entity on average with 2 small entity employees on average, with a GS-
14 step 5 with an average hourly rate of $86.12/hour, 4 hours each in
years 1, 3, 5, 7, and 9 to receive, review and share GSA site selection
analysis information. Therefore, GSA estimates the total annual
estimated cost for this part of the rule to be $689 (= 2 x $86.12 GS-14
step 5 rate x 4 hours).
Total Public Costs
GSA estimates the total estimated public costs to be $3,445 for
years 1 through 10. A breakdown of total estimated public costs by year
is provided in the table below.\7\
---------------------------------------------------------------------------
\7\ Costs are rounded to the nearest thousand.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1 2 3 4 5 6 7 8 9 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Public Costs........................ $1,000 ......... $1,000 ......... $1,000 ......... $1,000 ......... $1,000 .........
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Overall Total Additional Costs
The overall total additional undiscounted cost of this rule is
estimated to be $686,412 over a 10-year period. GSA did not identify
any cost savings based on the impact of the rule. A breakdown of
overall total additional costs by year is provided in the table
below.\8\
---------------------------------------------------------------------------
\8\ Costs are rounded to the nearest thousand.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1 2 3 4 5 6 7 8 9 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Government Costs.................... $188,000 $1,000 $124,000 ......... $124,000 ......... $124,000 ......... $124,000 .........
Total Public Costs........................ 1,000 ......... 1,000 ......... 1,000 ......... 1,000 ......... 1,000 .........
-------------------------------------------------------------------------------------------------------------
[[Page 72980]]
Overall Total Additional Costs........ 189,000 1,000 125,000 ......... 125,000 ......... 125,000 ......... 125,000 .........
--------------------------------------------------------------------------------------------------------------------------------------------------------
The following is a summary of the estimated costs calculated for a
10-year time horizon at a 3- and 7-percent discount rate:
------------------------------------------------------------------------
Total
Summary costs
------------------------------------------------------------------------
Present Value (3 percent).................................... $601,071
Annualized Costs (3 percent)................................. 70,464
Present Value (7 percent).................................... 512,057
Annualized Costs (7 percent)................................. 72,905
------------------------------------------------------------------------
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 the
Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.
VII. Small Business Regulatory Enforcement Fairness Act
This proposed rule is also exempt from congressional review
prescribed under 5 U.S.C. 801 since it relates solely to agency
management and personnel.
VIII. Severability
GSA is proposing to add a new provision on severability at 41 CFR
102-83.150, which states that all provisions included in part 102-83
are separate and severable from one another.
Regulations concerning location policy do a number of things--from
identifying and elaborating upon the factors that are advantageous to
the Government when planning for location decisions, to outlining the
consultation requirements with local officials and the communities
potentially impacted by Federal location decisions, to explaining the
role of agencies when planning for such decisions.
Accordingly, if any particular term or provision in part 102-83, or
the application thereof to any agency or circumstance, is determined by
a court of competent jurisdiction to be invalid or unenforceable, the
remaining terms or provisions, or the application of such term or
provision to agencies or circumstances other than those to which it is
invalid or unenforceable, will not be affected thereby, and each term
and provision of this rule will be valid and be enforced to the fullest
extent permitted by law. For example, if any location factor is
determined to be invalid, the other factors would remain in full force
and effect.
Further, any cross-references that appear throughout part 102-83
are duplicative and are intended only to make the regulations more
user-friendly. Invalidation of a particular provision that is cross-
referenced elsewhere will not materially alter the provision that
contains the cross-reference.
In summary, removal of any particular provision from part 102-83
would not render the entire regulatory scheme unworkable. Thus, GSA
considers each of the provisions in part 102-83 to be separate and
severable from one another. In the event of a stay or invalidation of
any particular provision, it is GSA's intention that the remaining
provisions will continue in effect.
List of Subjects in 41 CFR Part 102-83
Federal buildings and facilities, government property management,
rates and fares.
Krystal J. Brumfield,
Associate Administrator, Office of Government-wide Policy.
Therefore, GSA proposes to revise 41 CFR part 102-83 to read as
follows:
PART 102-83--LOCATION OF SPACE
Subpart A--General Provisions
Sec.
102-83.05 What does this part cover?
102-83.10 What are the governing authorities for this part?
102-83.15 Which Federal agencies must comply with these provisions?
102-83.20 How does an agency request a deviation from the provisions
of this part?
102-83.25 Intentionally Omitted
Subpart B--Location of Space
102-83.30 What basic location of space policy governs a Federal
agency?
102-83.35 Is there a general hierarchy of consideration that
agencies must follow in their utilization of space?
102-83.40 What is a delineated area?
102-83.45 What is a Core-Based Statistical Area?
102-83.50 How is a Core-Based Statistical Area defined?
102-83.55 What is a rural area?
102-83.60 What is an urban area?
102-83.65 What is a principal city?
102-83.70 What are centralized community business areas and
centralized business districts?
102-83.75 What is environmental justice?
102-83.80 What is equitable development?
102-83.85 In addition to Federal agency mission, security, and
program requirements, what other factors and principles must
agencies consider when establishing a potential delineated area?
102-83.90 What hierarchy of geographic consideration must agencies
apply to location decisions for new Federal facilities or leased
locations?
102-83.95 How must agencies consult with local officials to comply
with the consultation elements of this part?
102-83.100 What flexibility do Federal agencies have to implement
this part in high cost areas?
102-83.105 Are Federal agencies required to give preference to
historic properties when acquiring leased space?
102-83.110 Does GSA provide assistance to Federal agencies by
consulting with local officials to establish recommended delineated
areas?
102-83.115 Are Federal agencies required to consider whether the CBA
or other areas recommended by local officials will provide for
adequate competition when acquiring leased space?
102-83.120 What information and data must agencies provide to the
Administrator of General Services, or other acquiring agency head,
to comply with the provisions of this part?
102-83.125 Who must approve the final delineated area?
102-83.130 When is written justification for a delineated area in
urban areas required?
102-83.135 How will GSA negotiate changes to the final delineated
area with requesting agencies?
102-83.140 Where may Federal agencies appeal GSA decisions and
recommendations concerning the delineated area?
102-83.145 Do these regulations apply in GSA's National Capital
Region?
Subpart C--Severability
102-83.150 What portions of this part are severable?
Authority: 40 U.S.C. 113(d), 121(c), 581(c)(1), 584, 585, and
901-905; section 1 of Reorganization Plan No. 18 of 1950, 15 FR
3177, 64 Stat. 1270 (40 U.S.C. 301 note); 28 U.S.C. 462(f); 7 U.S.C.
2204b; 41 U.S.C. 3301 et seq.; 54 U.S.C. 300101 et seq.; E.O.s 12072
and 13006.
Subpart A--General Provisions
Sec. 102-83.05 What does this part cover?
This part covers GSA's considerations when making location
decisions for Federal agencies in both federally owned and leased space
and the considerations of those Federal agencies operating under or
subject to the real property authorities of the
[[Page 72981]]
Administrator of General Services (Administrator), including those
using delegated real property authority, when making their own location
decisions. It directs practices that foster the policies and programs
of the Federal Government and improve the management, efficiency and
effectiveness of Government activities.
Sec. 102-83.10 What are the governing authorities for this part?
The authorities for this regulation are--
(a) Rural Development Act of 1972, as amended (7 U.S.C. 2204b-1),
requires executive agencies to give first priority to locating in rural
areas;
(b) Federal Urban Land Use Act of 1949, as amended (40 U.S.C. 901-
905), requires GSA and other Federal agencies to consult with the unit
of general local government exercising zoning and land use
jurisdiction. To the greatest extent possible, GSA must coordinate
Federal projects with local planning agencies to be in accordance with
zoning, land use practices and planning and development objectives;
(c) Competition in Contracting Act of 1984, as amended, (41 U.S.C.
3301 et seq.) (CICA), requires executive agencies to consider whether
the delineated area will provide for adequate competition when
acquiring leased space; and
(d) 40 U.S.C. 113(d) authorizes the Administrator to provide space
to the Senate, the House of Representatives, and the Architect of the
Capitol upon their request.
(e) 40 U.S.C. 121(c) authorizes the Administrator to issue
regulations that the Administrator considers necessary to carry out the
Administrator's functions under subtitle I of title 40 of the United
States Code.
(f) National Historic Preservation Act of 1966, as amended, 54
U.S.C. 300101 et seq., encourages, among other things, the public and
private preservation and utilization of all usable elements of the
Nation's historic built environment.
(g) 40 U.S.C. 584 authorizes the Administrator to assign and
reassign space for an executive agency in any Federal Government-owned
or leased building.
(h) 40 U.S.C. 581(c)(1) authorizes the Administrator to acquire, by
purchase, condemnation or otherwise, real estate and interests in real
estate.
(i) 40 U.S.C. 585 authorizes the Administrator to enter into a
lease agreement for the accommodation of a Federal agency in a building
or improvement that is in existence or being erected by the lessor to
accommodate the Federal agency, and to assign and reassign the leased
space to a Federal agency.
(j) Section 1 of Reorganization Plan No. 18 of 1950, 15 FR 3177, 64
Stat. 1270 (40 U.S.C. 301 note), which, with certain exceptions,
transferred all function with respect to acquiring space in buildings
by lease, and all functions with respect to assigning and reassigning
space in buildings for use by agencies (including both space acquired
by lease and space in Government-owned buildings) to the Administrator.
(k) 28 U.S.C. 462(f) authorizes the Administrator to provide space
to the judicial branch upon request from the Director of the
Administrative Office of the United States Court.
(l) E.O. 12072 encourages Federal agencies to locate and use real
estate in ways that serve to strengthen the Nation's cities and make
them attractive places to live and work, conserve existing urban
resources and encourage the development and redevelopment of cities.
Toward this end, the E.O. requires executive agencies to give first
consideration to centralized community business areas and other areas
recommended by local officials as possible locations for Federal
facilities when locating in urban areas (43 FR 36869, August 18, 1978).
(m) E.O. 13006 requires that, when operationally appropriate and
economically prudent, and subject to the RDA and E.O. 12072, when
locating Federal facilities, Federal agencies must give first
consideration to historic properties within historic districts. If no
such property is suitable, then Federal agencies must consider other
developed or undeveloped sites within historic districts. Federal
agencies must then consider historic properties outside of historic
districts, if no suitable site within a district exists (80 FR 15871,
May 24, 1996).
Sec. 102-83.15 Which Federal agencies must comply with these
provisions?
All Federal agencies operating under or subject to the real
property authorities of the Administrator, including those using
delegated real property authority, must comply with these provisions.
Refer to 41 CFR 102-71.20 for the definition of Federal agency. Federal
agencies using independent authority must still comply with statutory
requirements and E.O.s (consistent with such authority), but this part
does not apply to these agencies. Agencies with independent authority
may use these provisions at agency discretion.
Sec. 102-83.20 How does an agency request a deviation from the
provisions of this part?
Refer to Sec. Sec. 102-2.60 through 102-2.110 of this chapter for
information on how to obtain a deviation from this part.
Sec. 102-83.25 Intentionally Omitted.
Subpart B--Location of Space
Sec. 102-83.30 What basic location of space policy governs a Federal
agency?
(a) All Federal agencies when planning for location decisions under
the authorities of the Administrator, including those using delegated
real property authority, are required to apply the applicable laws,
regulations and E.O.s outlined in this part to their activities. This
applies to agencies using the space and to agencies acquiring a
leasehold interest or a new site to accommodate a space requirement.
(b) Federal agencies intending to use space under this part are
responsible for identifying the geographic area within which to locate
their activities (i.e., the delineated area) to support their mission
and program requirements. Agencies must define delineated areas that
support the applicable laws, regulations and E.O.s outlined in this
part. In addition to these responsibilities, agencies conducting a
space acquisition have certain additional specific responsibilities as
outlined in this part.
Sec. 102-83.35 Is there a general hierarchy of consideration that
agencies must follow in their utilization of space?
Yes. In accordance with part 79 of the FMR (41 CFR 102-79),
Assignment and Utilization of Space, Federal agencies must follow the
hierarchy of consideration, giving first priority to Government-owned
and Government-leased buildings. When no existing Government-owned or
Government-leased space meets the space need, Federal agencies must
follow the hierarchy of geographic consideration in Sec. 102-83.95
when obtaining new space as identified in this subpart.
Sec. 102-83.40 What is a delineated area?
The delineated area is the specific geographic boundary within
which space will be obtained to satisfy a Federal agency space
requirement.
Sec. 102-83.45 What is a Core-Based Statistical Area?
A Core-Based Statistical Area (CBSA) is a geographic area
established by OMB. Current CBSAs are listed in OMB Bulletin No. 20-01,
``Revised Delineations of Metropolitan Statistical Areas, Micropolitan
Statistical Areas, and Combined Statistical Areas, and Guidance on Uses
of the Delineations of
[[Page 72982]]
These Areas,'' dated March 6, 2020, or succeeding OMB Bulletin. In this
part, the CBSA designation is used to distinguish between urban and
rural areas, which have different directives associated with them.
Sec. 102-83.50 How is a CBSA defined?
A CBSA is defined by OMB using U.S. Census data as an area that has
at its core an urban center and includes the adjacent areas that are
socioeconomically tied to the urban center by commuting patterns
pursuant to the 2010 Standards for Delineating Metropolitan and
Micropolitan Statistical Areas (75 FR 37246, June 28, 2010), or
succeeding OMB publication.
Sec. 102-83.55 What is a rural area?
A rural area is any area that is not contained within the
geographic boundaries of a CBSA.
Sec. 102-83.60 What is an urban area?
An urban area is any area contained within the geographic
boundaries of a CBSA.
Sec. 102-83.65 What is a principal city?
(a) A principal city is an incorporated place or census designated
place within a CBSA that meets certain employment and population-based
criteria. Major metropolitan areas typically have several principal
cities.
(b) The principal city designation is established by OMB pursuant
to the 2010 Standards for Delineating Metropolitan and Micropolitan
Statistical Areas (75 FR 37246, June 28, 2010), or succeeding
standards. OMB regularly publishes an updated list of Principal Cities
(OMB Bulletin No. 20-01, and succeeding). In this part, the principal
city designation is used to help the Federal agency focus local
consultation.
Sec. 102-83.70 What are centralized community business areas and
centralized business districts?
A centralized community business area (CBA) or centralized business
district, also commonly referred to as a central business district, is
an area of concentration of commercial real estate and activity within
a principal city, including other specific areas of similar character
that may be recommended by local officials. The CBA may be part of a
traditional downtown area or part of another area that local government
officials have identified as supportive of their long-term economic
development objectives. CBAs are designated by local governments and
not by Federal agencies, so Federal agencies must consult with local
officials to understand the current boundaries of these areas. As
described in E.O. 12072, these areas may include other specific areas
that are recommended by local officials.
Sec. 102-83.75 What is environmental justice?
Environmental justice is the just treatment and meaningful
involvement of all people, regardless of income, race, color, national
origin, Tribal affiliation, or disability, in agency decision-making
and other Federal activities that affect human health and the
environment so that people are fully protected from disproportionate
and adverse human health and environmental effects (including risks)
and hazards; and have equitable access to a healthy, sustainable, and
resilient environment. Advancing environmental justice further requires
Federal agencies to provide opportunities for meaningful engagement of
the public, including communities with environmental justice concerns
who are potentially affected by Federal activities. When planning for
location decisions, which is the Federal activity for purposes of this
rule, Federal agencies must be especially mindful of how proposed
locations would impact communities with environmental justice concerns.
As appropriate and consistent with applicable law, Federal agencies
should seek to minimize negative and maximize positive impacts in these
areas, using available data and meaningful engagement with local
stakeholders to identify such communities, and identify, analyze, and
address adverse human health and environmental effects (including
risks) and hazards of the Federal activity.
Sec. 102-83.80 What is equitable development?
Equitable development is a positive development approach that
employs processes, policies, and programs that aim to meet the needs of
all communities and community members, with a particular focus on
underserved communities and populations. When seeking Federal
locations, agencies should, to the extent consistent with applicable
law, consider the needs of communities, including those communities
that are underserved, through policies and actions that reduce
disparities while fostering communities that are healthy and vibrant.
Sec. 102-83.85 In addition to Federal agency mission, security, and
program requirements, what other factors and principles must agencies
consider when establishing a potential delineated area?
(a) In addition to agency mission, security, and program
requirements, Federal agencies also must give serious consideration to
the impact a location decision will have on improving the social,
economic, environmental, and cultural conditions of communities,
including those that have been historically harmed by environmental
injustice and inequality, as well as avoiding harm to such communities,
while at the same time promoting efficient and cost-effective
Government real estate management. These factors and principles derive
from the relevant authorities in this part and include the following:
(1) Cost to the Government, including both upfront real estate
acquisition as well as long-term operating costs;
(2) Opportunities to reduce the Federal real estate footprint and
optimize agency space usage;
(3) Ability to manage the local Federal real estate portfolio
strategically to optimize effective operations over the long term; and
(4) Consideration of the competition requirements under CICA, if
applicable to the site location decision.
(b) In addition to agency mission, security and program
requirements, Federal agencies also must consider a series of factors
meant to promote Federal investment that supports larger Federal
program goals and local development objectives. These factors include
the following:
(1) Compatibility with State and local economic development
objectives, such as local and regional comprehensive plans,
neighborhood scale plans and local plans covering sustainability and
resilience goals. When planning for location decisions, agencies should
align, where possible, with local and regional planning goals. Agencies
should meaningfully engage with local officials and community members
potentially impacted by a location decision and consider their
recommendations in light of Federal mission needs and equitability and
sustainability goals, including where affected populations have
experienced historic and ongoing harms due to environmental injustice
and inequality;
(2) Promoting of environmentally sustainable development, reduced
greenhouse gas emissions, increased resilience to the impacts of
climate change, and stewardship of regional natural resources.
Maximizing the use of existing resources by leveraging investment in
existing infrastructure; prioritize development of brownfields
(properties, the expansion, redevelopment, or reuse of which may be
complicated by the presence or potential presence of a hazardous
substance, pollutant, or contaminant),
[[Page 72983]]
greyfields (previously developed land that is underutilized) and infill
development; avoid development in floodplains or impacts to wetlands to
the extent practicable, and promote the preservation of historic
resources and other existing buildings. Fostering protection of the
natural environment by preserving existing ecosystems, avoiding
development of green space and promoting climate change adaptation
planning;
(3) Advancing environmental justice and equitable development;
(4) Advancing Federal and local historic preservation objectives;
and
(5) Seeking location-efficient sites that provide a variety of
transportation options for employees and the public, while maximizing
use of existing infrastructure and minimizing employee and visitor
travel by car. Prioritize central business districts, existing
employment centers and rural town centers; prioritize locations that
promote transportation choice, especially walking, biking and public
transit options; and locate in areas that are accessible by public
transit, where it exists, to a broad range of the workforce and
population, such as those seeking services or needing to visit Federal
space locations.
(c) The factors listed in paragraphs (a) and (b) of this section
must be considered when applying the hierarchy of geographic
consideration in Sec. 102-83.90. The optimal Federal location decision
is the choice that meets Federal agency mission, security and program
requirements and is cost effective, while leveraging Federal
development in support of these other Federal programs policies and
goals, as well as local development objectives.
Sec. 102-83.90 What hierarchy of geographic consideration must
agencies apply to location decisions?
(a) Agencies must develop policies and procedures for applying the
goals of this part in their business practices. These policies and
procedures must include methods for applying the hierarchy outlined in
paragraph (b) of this section.
(b) When making new location decisions, agencies must give
preference to geographic areas in the following order:
(1) Agencies must give first priority to locating in a rural area
in accordance with the Rural Development Act of 1972 (RDA). As with
other elements of this part, acquiring agencies must develop their own
policies and procedures for implementing the goals of the RDA. Agencies
must consider the objectives outlined in Sec. 102-83.85 and use these
principles and factors to differentiate among potential locations.
Agencies are encouraged to seek a location that best meets these
factors or meet multiple factors. If an agency's mission cannot be
accomplished in a rural area, the agency may locate in an urban area.
(2) When an agency's mission requires location in an urban area,
the agency must give priority to the CBA within a principal city of a
CBSA or other areas as recommended by local officials. Agencies must
consider the objectives outlined in Sec. 102-83.85 and use these
principles and factors to differentiate among potential locations.
Agencies are encouraged to seek a location that best meets these
factors or meets multiple factors.
(3) If an agency mission cannot be met within a principal city, or
where areas, such as existing employment centers, outside the principal
city offer better opportunities to advance the objectives outlined in
Sec. 102-83.85, in accordance with their established policies and
procedures, agencies may proceed to seek space in those areas.
(4) Once an agency has set a delineated area in a rural or urban
area, agencies must comply with the requirements for consideration of
historic properties and districts set forth in Sec. 102-78.60.
Sec. 102-83.95 How must agencies consult with local officials and
communities to comply with the consultation elements of this part?
Agencies have wide latitude to develop their own internal policies
for engaging in consultation in ways that are both effective and
efficient based upon the intent of this part, the relevant development
context and the agency's core business practices. Agencies must develop
internal policies and procedures that guide consultation using
different methods for actions of varying scale or scope. Location
decisions to support fee simple acquisition and Federal construction in
most cases will require direct consultation with local officials during
the location evaluation process to meet the intent of this part.
Conversely, for acquisition of existing space through a lease contract,
agencies may develop internal procedures that apply the hierarchy
outlined in this part such that no transaction-specific consultation
with local officials would be required if the delineated area is within
a recognized CBA or other area recommended by local officials. To
expedite effective and efficient implementation of this part, where
appropriate, agencies are encouraged to pursue consultation actively
with local officials and communities, as appropriate, to discuss
development goals well ahead of specific space actions.
(a) Under multiple guiding authorities, acquiring agencies must
consult with local officials to apply the principles outlined in this
part properly. Consultation and consideration of local input must occur
in urban areas, and agencies are encouraged to perform similar
consultation in rural areas, as appropriate.
(b) Where a Federal location decision will include, be adjacent to
or in a reasonable radius of, or occur in a state containing Tribal
lands of federally-recognized American Indians or Native Alaskans, or
where the location decision affects a property or place of traditional
religious and cultural importance to Native Hawaiian Organizations,
Federal agencies must consult their agency Tribal consultation policies
to determine the appropriate level of engagement with the Tribal
governments and organizations, including official offers to consult,
listening sessions, or notifications.
(c) Where communities are likely to face displacement risks
associated with a Federal location decision, based on agency analysis
of existing data and consultation with local officials, or where
communities have been harmed historically by inequity, such as
persistent poverty or underinvestment, or environmental injustice,
agency engagement should occur not only with relevant regional and
local officials but also with members of the affected communities.
(d) Meaningful engagement with local stakeholders outside of
government or those who have been historically left out of community
and economic development planning requires agencies to identify and
include community members in Federal location planning activities early
enough in the process for them to have insight into and for their input
to be reflected in the decision making process. This includes
opportunities for significant participation through modes that reduce
known barriers to participation, such as plain language use,
translation, transportation, digital and non-digital access, culture,
time of day, and availability of childcare and other supportive
services.
Sec. 102-83.100 What flexibility do Federal agencies have to
implement this part in high cost areas?
Agencies have flexibility in considering the differing costs among
principal cities within a single CBSA and in setting delineated areas
to
[[Page 72984]]
incorporate lower-cost markets. There may be some instances where the
head of the responsible acquiring agency or the head of the agency's
designee determines that cost and security issues take precedence over
the hierarchy of consideration in this part. Federal agencies may
deviate from the hierarchy only where doing so would represent
significant cost savings or security advantages to the Government. In
such cases, agencies must consult with and consider the recommendations
of local officials, review and affirm this determination, and document
the file accordingly. In every instance, agencies must seek to meet the
intent of the governing authorities described in Sec. 102-83.10, and
they must incorporate their applicable process into their internal
policies and procedures.
Sec. 102-83.105 Are Federal agencies required to give preference to
historic properties when acquiring leased space?
Yes. Federal agencies must give a price preference to historic
properties when acquiring leased space. See Sec. 102-73.30 of this
chapter for additional guidance.
Sec. 102-83.110 Does GSA provide assistance to Federal agencies by
consulting with local officials to establish recommended delineated
areas?
Yes. GSA may, at its discretion, assist agencies by consulting with
local officials to establish recommended delineated areas for use in
Federal location decisions. These GSA-recommended delineated areas may
be proactively developed independent of a specific space requirement.
These recommended delineated areas will take into consideration the
factors discussed in this part. The final delineated area used in the
space acquisition may differ from these recommended areas, depending on
the agency mission requirements, CICA and other factors relevant to a
specific space action.
Sec. 102-83.115 Are Federal agencies required to consider whether the
CBA or other areas recommended by local officials will provide for
adequate competition when acquiring leased space?
Yes. In accordance with CICA, Federal agencies must consider
whether restricting the delineated area for obtaining leased space to
CBAs or other areas recommended by local officials will provide for
adequate competition when acquiring space. If a Federal agency
determines that the delineated area must be expanded beyond the
preferred areas to provide adequate competition, the agency may expand
the delineated area in consultation with local officials. Federal
agencies must continue to include the preferred area in such expanded
areas.
Sec. 102-83.120 What information and data must agencies provide to
the Administrator of General Services, or other acquiring agency head,
to comply with the provisions of this part?
Efficient and effective space management of federally owned and
leased facilities through the activities described in this part
requires that Federal agencies cooperate with acquiring agencies and
furnish any related data and information requested by the acquiring
agencies, to the extent not prohibited by law. This includes
information or data that allows for:
(a) Selecting, acquiring, managing, and disposing of Federal space
in a manner that will foster the policies and programs of the Federal
Government and improve the management and administration of Government
activities;
(b) Issuing regulations, standards and criteria for the selection,
acquisition and management of federally owned and leased space;
(c) Surveying space requirements, space utilization and daily
occupancy data of executive agencies;
(d) Meeting essential space requirements in a manner that is
economically feasible and prudent; and
(e) Making maximum use of existing federally controlled facilities
that, in the acquiring agency head's judgment, are adequate or
economically adaptable to meeting the space needs of executive
agencies.
Sec. 102-83.125 Who must approve the final delineated area?
The Federal agency conducting the space acquisition must approve
the final delineated area for the site acquisition or action. The
acquiring agency must confirm that the final delineated area complies
with all applicable laws, regulations and E.O.s.
Sec. 102-83.130 When is written justification for a delineated area
in urban areas required?
If the delineated area identified is outside the CBA in a principal
city, or differs from a GSA-recommended delineated area that has been
developed in accordance with the guiding authorities in this part, an
agency must demonstrate, in writing, that preference has been given to
the CBA of a principal city or GSA's recommended delineated area, and
that the agency considered the environmental and socioeconomic factors
in this subpart. The agency justification also must address, at a
minimum, the efficient performance of the mission(s) and program(s) of
the agency, the nature and function of the facility or facilities
involved and the convenience of the public being served.
Sec. 102-83.135 How will GSA negotiate changes to the final
delineated area with requesting agencies?
For space acquisitions conducted by GSA, if, based on its review of
a requesting agency's identified delineated area, GSA concludes that
the requesting agency's identified delineated area should be modified,
GSA will discuss its recommended changes with the requesting agency.
If, after discussions, the requesting agency does not agree with GSA's
delineated area recommendation, the requesting agency may appeal GSA's
determination in accordance with Sec. 102-83.140. If a requesting
agency elects to ask for a review of GSA's delineated area
recommendation, GSA will continue to work on the requirements
development and other activities related to the requesting agency's
space request. GSA will not issue a solicitation to satisfy an agency's
space request until a final delineated area is determined through the
appeal process.
Sec. 102-83.140 Where may Federal agencies appeal GSA decisions and
recommendations concerning the delineated area?
Agencies may appeal decisions and recommendations, in writing, to
the GSA Regional Commissioner of Public Buildings in the region where
the space acquisition is to take place or to the GSA Regional
Commissioner's designee. The written request for review must include
all relevant facts and other considerations, and must justify the
alternative delineated area identified by the requesting agency with
regard to the location requirements set forth in all applicable
statutes, E.O.s and regulations. Once submitted to the Regional
Commissioner or the Regional Commissioner's designee, the requesting
agency's appeal will proceed according to the process established
internally by GSA.
Sec. 102-83.145 Do these regulations apply in GSA's National Capital
Region?
The presence of the Federal Government in the National Capital
Region is such that the distribution of Federal facilities has been,
and will continue to be, a major influence in the character and extent
of development in the National Capital Region. In view of the special
nature of the National Capital Region and the preponderance of Federal
space contained therein, these regulations will be applied in the
National Capital Region in conjunction with regional plans and will
guide the development of strategic plans for the
[[Page 72985]]
housing of Federal agencies within the National Capital Region.
Subpart C--Severability
Sec. 102-83.150 What portions of this part are severable?
All provisions of this part are separate and severable from one
another. If any provision is stayed or determined to be invalid, it is
GSA's intention that the remaining provisions will continue in effect.
[FR Doc. 2023-23477 Filed 10-23-23; 8:45 am]
BILLING CODE 6820-14-P
</pre></body>
</html>Indexed from Federal Register on October 24, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.