[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Rules and Regulations]
[Pages 5711-5717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02158]


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GENERAL SERVICES ADMINISTRATION

41 CFR Part 102-77

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


Federal Management Regulation; Art in Architecture

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

ACTION: Final rule with 60-day comment period.

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

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

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

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Chris Coneeney, Director, Real Property Policy Division, Office of 
Government-wide Policy, at 202-208-2956 or [email protected]. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat Division at 202-501-4755 or [email protected]. 
Please cite FMR Case 2021-02.

SUPPLEMENTARY INFORMATION:

I. History of the Program

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

[[Page 5712]]

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

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

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

III. Discussion of the Final Rule

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

[[Page 5713]]

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

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

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

V. Expected Impact of This Final Rule

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

[[Page 5714]]

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

A. Costs to the Public for Art in Architecture Panels

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

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

    To align with the Administration's policies and directives, artists 
within the Registry will be able to submit their demographic 
information through the Art in Architecture website. The provision of 
this additional information is optional and will be used to report on 
the demographic make-up of participants and their reflection to the 
Nation as a whole. Artists will also be able to indicate their status 
as a U.S. citizen and, in a change to the form, a lawful permanent 
resident. The section on media has been updated to reflect current art 
practice and specifications on materials have been eliminated. GSA 
estimated the burden to the current artists to be $11,807 (= 0.25 hours 
x $27.78 x 1,700) in the second year. GSA estimated the hourly rate of 
$27.78 for the artists by using the Bureau of Labor Statistics December 
2021 average hourly earnings for other services.\5\
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    \5\ https://www.bls.gov/news.release/empsit.t19.htm.
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    To support the Administration's policies and directives, new 
artists will submit their information, including key demographic data 
points, through the Art in Architecture website. GSA estimated the 
burden to the new artists to be $5,903 (= 0.25 hours x $27.78 x 850) in 
the second year. GSA estimated the hourly rate of $27.78 for the 
artists by using the Bureau of Labor Statistics December 2021 average 
hourly earnings for other services.\6\ GSA estimates the number of 
submissions will increase by 35% due to the Administration's efforts to 
heighten awareness of the Registry and motivate artists to register. 
This will help future assessments of the relationship between U.S. 
demographic trends and the composition of artists within the Registry.
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    \6\ Id.
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    GSA calculated the estimated number of annual submissions under the 
prior rule by applying the ratio of estimated annual submissions 
against the Registry's current population to the number of artists 
estimated by GSA to be able to be considered for a commission under the 
prior rule. GSA estimated 31 artists on an annual basis would have 
submitted information in year 2 of the analysis. Therefore, GSA 
calculated this cost to be $215 (= 0.25 hours x $27.87 x 31). This 
final rule results in an incremental cost of $5,688 in year 2 to the 
public.
    To support the Administration's policies and directives, new 
artists will submit their information, including key demographic data 
points, through the Art in Architecture website. GSA estimated the 
burden to the new artists to be $2,084 (= 0.25 hours x $27.78 x 300) in 
years 3-10. GSA estimated the hourly rate of $27.78 for the artists by 
using the Bureau of Labor Statistics December 2021 average hourly 
earnings for other services.\7\ GSA estimates the number of submissions 
will increase due to the Administration's efforts to heighten awareness 
of the Registry and motivate artists to register. This will help future 
assessments of the relationship between U.S. demographic trends and the 
composition of artists within the Registry.
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    \7\ Id.
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    GSA calculated the estimated number of annual submissions under the 
prior rule by applying the ratio of estimated annual submissions 
against the Registry's current population to the number of artists 
estimated by GSA to be able to be considered for a commission under the 
prior rule. GSA estimated 31 artists on an annual basis would have 
submitted information in years 3-10 of the analysis. Therefore, GSA 
calculated this cost to be $215 (= 0.25 hours x $27.87 x 31). This 
final rule results in an incremental cost of $1,869 per year in years 
3-10 to the public.
    The following is a summary of the estimated costs to the public 
calculated within a 10-year time horizon at a 3 and 7 percent discount 
rate, respectively:

------------------------------------------------------------------------
                         Summary                            Total costs
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Present Value (3 percent)...............................         $28,857
Annualized Costs (3 percent)............................           2,833
Present Value (7 percent)...............................          25,028
Annualized Costs (7 percent)............................           2,374
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C. Government Costs

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

[[Page 5715]]

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

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

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

E. Benefits

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

F. Overall Total Additional Costs of This Final Rule

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

[[Page 5716]]

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

VI. Administrative Procedure Act

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

VII. Request for Public Comment

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

VIII. Executive Orders 12866 and 13563

    E.O.s 12866 and 13563 direct agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). E.O. 13563 emphasizes the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. This final rule is 
a significant regulatory action and, therefore, was subject to review 
under subsection 6(b) of E.O. 12866, ``Regulatory Planning and 
Review,'' dated September 30, 1993.

IX. Congressional Review Act

    This final rule is not a major rule under 5 U.S.C. 804(2). Subtitle 
E of the Small Business Regulatory Enforcement Fairness Act of 1996 
(codified at 5 U.S.C. 801-808), also known as the Congressional Review 
Act or CRA, generally provides that before a rule may take effect, the 
agency promulgating the rule must submit a rule report, which includes 
a copy of the rule, to each House of the Congress and to the 
Comptroller General of the United States. A major rule under the CRA 
cannot take effect until 60 days after it is published in the Federal 
Register. The OMB Office of Information and Regulatory Affairs has 
determined that this final rule is not a

[[Page 5717]]

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

X. Regulatory Flexibility Act

    This final rule will not have a significant economic impact on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it applies to 
agency management or personnel.

List of Subjects in 41 CFR Part 102-77

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

Robin Carnahan,
Administrator of General Services.

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

PART 102-77--ART IN ARCHITECTURE

Subpart A--General Provisions

Sec.

Scope

102-77.5 What is the scope of this part?

Definition

102-77.10 What definition applies to this part?

Policy

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

Subpart B--Art in Architecture

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

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

Subpart A--General Provisions

Scope


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

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

Definition


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

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

Policy


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

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

Subpart B--Art in Architecture


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

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


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

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


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

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

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