```

[Federal Register Volume 79, Number 198 (Tuesday, October 14, 2014)]
[Rules and Regulations]
[Pages 61563-61571]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-24150]

========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
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Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / 
Rules and Regulations

[[Page 61563]]

DEPARTMENT OF ENERGY

10 CFR Parts 433, 435 and 436

[Docket No. EE-RM/STD-02-112]
RIN 1904-AC13

Green Building Certification Systems for Federal Buildings

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (DOE) issues a final rule that 
implements a provision in the Energy Conservation and Production Act, 
as amended by the Energy Independence and Security Act of 2007, which 
requires DOE to identify a green building certification system and 
level that DOE determines to be the most likely to encourage a 
comprehensive and environmentally-sound approach to certification of 
green buildings. DOE's green building certification system review must 
be based on the General Services Administration's review of third-party 
green building certification systems and levels and criteria outlined 
in the Energy Independence and Security Act of 2007. Under the 
regulations established today, if a Federal agency chooses to use a 
green building certification system for a new building or major 
renovation covered by today's rule, the green building certification 
system for Federal buildings must meet the certification standards 
established in today's rule.

DATES: This rule is effective November 13, 2014. The incorporation by 
reference of certain publications listed in this rule was approved by 
the Director of the Federal Register on November 13, 2014.

ADDRESSES: This rulemaking can be identified by docket number EE-RM/
STD-02-112 and or RIN number 1904-AC13.
    Docket: The docket is available for review at http://www.regulations.gov including Federal Register Notices, public meeting 
attendee lists, transcripts, comments and other supporting documents/
materials. All documents in the docket are listed in the http://www.regulations.gov index. However, not all documents listed in the 
index may be publicly available, such as information that is exempt 
from public disclosure.
    For further information on how to review materials in the docket, 
contact Ms. Brenda Edwards at (202) 586-2945 or email 
Brenda.Edwards@ee.doe.gov.

FOR FURTHER INFORMATION CONTACT: For technical issues, contact Sarah 
Jensen, U.S. Department of Energy, Office of Energy Efficiency and 
Renewable Energy, Federal Energy Management Program, EE-5F, 1000 
Independence Avenue SW., Washington, DC 20585-0121, (202) 287-6033, 
email: sarah.jensen@ee.doe.gov. For legal issues, contact Ami Grace-
Tardy, U.S. Department of Energy, Office of the General Counsel, 
Forrestal Building, GC-71, 1000 Independence Avenue SW., Washington, DC 
20585, (202) 586-5709, email: ami.grace-tardy@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
    A. Background
    B. Summary of the Final Rule
II. Discussion of Comments and Changes to the Proposed Rule
III. Regulatory Analyses
IV. Congressional Notification

I. Introduction

A. Background

    Section 305 of the Energy Conservation and Production Act (ECPA; 
Pub. L. 94-385) established energy conservation requirements for 
Federal buildings. (42 U.S.C. 6834) Section 433(a) of the Energy 
Independence and Security Act of 2007 (EISA 2007; Pub. L. 110-140) 
amended section 305 of ECPA to require, among other things, DOE to 
identify a green certification system and level for rating Federal 
buildings that DOE determines to be the most likely to encourage a 
comprehensive and environmentally sound approach to such certification 
and rating. (42 U.S.C. 6834(a)(3)(D)(i)(III)) Section 433 of EISA 2007 
also revised the definition of ``Federal building'' applicable to the 
regulations for Federal buildings. (42 U.S.C. 6832(6)).
    DOE's green building certification system review must be based on 
the General Services Administration's (GSA) review of third-party green 
building certification systems and other criteria outlined in EISA 
2007, including: The ability and availability of assessors and auditors 
to independently verify the criteria and metrics; the ability of the 
applicable certification organization to collect and reflect public 
comment; the ability of the standard to be developed and revised 
through a consensus-based process; and an evaluation of the robustness 
of the criteria for a high-performance green building; national 
recognition within the building industry (42 U.S.C. 
6834(a)(3)(D)(iii)).
    As required under EISA 2007, at least once every five years, GSA 
must conduct a study to evaluate third-party green building 
certification systems and levels taking into consideration these same 
criteria. (42 U.S.C. 6834(a)(3)(D)(iv)) After completion of each study, 
DOE must review and update its recommended certification systems and 
levels, taking into account GSA's evaluation. (42 U.S.C. 
6834(a)(3)(D)(i)(III)) By rule, DOE also may allow Federal agencies to 
develop their own internal certification processes. (42 U.S.C. 
6834(a)(3)(D)(v)).
    As required by Section 436(h) of EISA 2007, in 2008 GSA identified 
the U.S. Green Building Council's Leadership in Energy and 
Environmental Design (LEED) Silver as a green building certification 
system and level that meets the criteria expressly identified in the 
statute. In the 2011 sustainable design notice of proposed rulemaking 
(``sustainable design NOPR'') DOE requested comment on other green 
rating systems and associated levels/points that also would meet the 
statutory criteria. See 75 FR 29933, 29938-39 (May 28, 2010).
    On October 25, 2013, the GSA Administrator sent his latest green 
building certification system evaluation to DOE.\1\ The Administrator

[[Page 61564]]

recommended that Federal agencies utilize the 2009 LEED \2\ or the 
Green Building Initiative's Green Globes 2010 \3\ certification system. 
For new construction and major renovations, GSA recommended that 
Federal agencies obtain at least a LEED Silver rating, or, if using 
Green Globes, at least 2 Green Globes.
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    \1\ Letter from Daniel Tangherlini, GSA Administrator, to Ernest 
Moniz, Secretary of Energy, dated October 25, 2013. Letter and all 
supporting material may be found on GSA's Web site at http://www.gsa.gov/portal/content/131983.
    \2\ LEED information is available at http://www.usgbc.org/leed.
    \3\ Green Globes information is available at http://www.thegbi.org/green-globes/.
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    Today's rule updates the Federal energy efficiency standards by 
adding criteria that green building rating systems must meet. Federal 
agencies are not required to use a green building rating system, but if 
they choose to do so, the systems must meet these criteria. The Federal 
commercial and multi-family high-rise residential energy efficiency 
standards are contained in 10 CFR part 433. The Federal low-rise 
residential energy efficiency standards are contained in 10 CFR part 
435. Today's rule adds the green building certification criteria for 
both 10 CFR part 433 and 10 CFR part 435. Today's rule also reorganizes 
and renumbers existing text in these parts to accommodate the addition 
of the provisions regarding green building certification systems for 
Federal buildings.

B. Summary of the Final Rule

    In May 2010, DOE published a notice of proposed rulemaking (NOPR) 
that addressed the use of sustainable design principles for the siting, 
design, and construction of Federal buildings, and the use of water 
conservation technologies to achieve energy efficiency. This proposed 
rulemaking also provides criteria for identifying a certification 
system and level for green buildings that encourages a comprehensive 
and environmentally-sound approach to certification of green buildings. 
75 FR 29933. Today's rule finalizes only the provisions of the NOPR 
that pertained to green building certification systems. DOE is 
continuing to assess the sustainable design principles in the NOPR in 
light of an ongoing process to revise the 2008 Guiding Principles for 
High Performance and Sustainable Buildings: New Construction and Major 
Renovations (Guiding Principles), which served as a basis for those 
provisions of the NOPR.
    DOE recognizes the degree to which EISA 2007 requirements for 
Federal agencies to incorporate sustainable design principles into new 
construction and major renovations overlap with standing Executive 
Order requirements that agencies maintain specific sustainable building 
standards. Executive Orders 13423 and 13514 require that all new 
Federal construction and major renovations comply with the Guiding 
Principles. Although using a green building certification system is 
optional, DOE recognizes that many agencies use green building 
certification systems to assist them in supporting efforts to comply 
with the Guiding Principles.
    Under today's rule, if an agency chooses to use a green building 
certification system, agencies must choose a green building 
certification system that meets certain criteria as discussed below and 
agencies are encouraged to take into consideration GSA's set of 
recommendations. DOE made one change to the ``green building 
certification system'' criteria from the NOPR by requiring a 
verification system for post-occupancy assessment of the rated 
buildings to demonstrate continued energy and water savings at least 
every four years after initial occupancy.
    This rule applies to certain new Federal buildings, and major 
renovations to Federal buildings, for which design for construction 
began on or after October 14, 2015. The new Federal buildings, and 
major renovations to Federal buildings covered by today's rule are 
covered by EISA 2007 and include new Federal buildings, or major 
renovations to Federal buildings, that are also: (1) Public buildings, 
as defined in 40 U.S.C. 3301 for which a transmittal of a prospectus to 
Congress is required under 40 U.S.C. 3307; or (2) Federal buildings for 
which the construction cost or major renovation cost is at least 
$2,500,000 (2007 dollars, adjusted for inflation). The term ``Federal 
building'' means any building to be constructed by, or for the use of, 
any Federal agency. The term includes buildings built for the purpose 
of being leased by a Federal agency, and privatized military housing. 
(42 U.S.C. 6832)

II. Discussion of Comments and Changes to the Final Rule

    DOE received a wide variety of comments from 62 different entities 
in response to the sustainable design NOPR. All of the 62 comments 
supported the general premise of this rule to improve sustainability in 
Federal buildings. All public comments are available for review on the 
regulations.gov Web site under Docket Number DOE-EERE-OT-2010-0007. 
Comments that are directly pertinent to the green building 
certification system portion of the rule are discussed and addressed in 
greater detail below.

A. Scope

Leased Buildings
    EISA 2007 modified the ECPA definition of ``Federal building'' to 
apply to ``any building to be constructed by, or for the use of, any 
Federal agency. Such term shall include buildings built for the purpose 
of being leased by a Federal agency, and privatized military housing.'' 
(42 U.S.C. 6832(6)) In the NOPR, DOE requested comments on the proposed 
definition of ``new Federal building'' (based on the statutory 
``Federal building'' definition) and on limiting the inclusion of 
leased buildings in the definition of ``Federal building'' to new 
leased buildings in which a Federal agency has significant control over 
the design of the building (e.g., ``lease-constructs''). 75 FR 29934.
    Several commenters, including Indian Health Services (IHS) and the 
U.S. Green Building Council (USGBC), agreed with DOE's proposal to 
limit the coverage of leased buildings to those in which a Federal 
agency has ``significant control'' over building design. (IHS, No. 45 
at p. 1 \4\; Green Mechanical Council (GMC), No. 60 at p. 5) Several 
comments suggested that the rule should apply to all buildings that the 
government leases, including buildings that the Federal agency does not 
have ``significant control'' over building design. (Kaplow, No. 6 at p. 
1; U.S. Fuel Cell Council, No. 13 at p. 2; National Electrical 
Manufacturers Association (NEMA), No. 36 at p. 3; Solar Energy 
Industries Association (SEIA), No. 58 at pp. 2-3, Natural Resources 
Defense Council (NRDC), No. 64 at pp. 3-4; Earthjustice, No. 71 at p. 
9) DOE has not expressly added the ``significant control'' restriction 
to the rule for leased buildings because the ECPA definition of 
``Federal building'' includes the limitation of buildings that are 
built specifically for the Federal government. Construction design for 
a building built specifically for use of the Federal government, 
including under lease to a Federal agency, is, presumably, under the 
significant control of the Federal owner or Federal lessee. U.S. 
General Services Administration (GSA) recommended adding rule language 
stating that leased buildings include

[[Page 61565]]

projects ``in which the government initiates the solicitation of bids 
expressly for the construction of a building or facility to meet a 
Federal agency need.'' (GSA, No. 72 at p. 5) DOE agrees that GSA's 
proposed clarification reflects ECPA, but DOE does not believe that 
GSA's language need be included in today's rule as the rule specifies 
that it applies to buildings built for the purposes of being leased by 
a Federal agency.
---------------------------------------------------------------------------

    \4\ Notations of this form appear throughout this document and 
identify statements made in written comments or at public hearings 
that DOE has received and has included in the docket for this 
rulemaking. For example, ``IHS, No. 45 at p. 1'' refers to a 
comment: (1) From Indian Health Services; (2) in document number 45 
in the docket of this rulemaking; and (3) appearing on page 1 of the 
submission.
---------------------------------------------------------------------------

Covered Buildings
    NRDC and Earthjustice commented that DOE's interpretation of the 
scope of buildings covered under statutory requirements at 42 U.S.C. 
6834(a)(3)(D)(i) is incorrect. (NRDC, No. 64 at p. 3; Earthjustice, No. 
71 at pp. 7-9) These commenters believe that the limiting criteria in 
42 U.S.C. 6834(a)(3)(D)(i) \5\ apply only to ``major renovations'' and 
not to new buildings. DOE believes that this is an incorrect 
interpretation of the statute for several reasons. The first phrase 
set-off in commas (starting with ``with respect to which'') reasonably 
modifies the previous phrase referring to both new Federal buildings 
and those undergoing major renovations. The second phrase set-off in 
commas (starting with ``in the case of public buildings'') reasonably 
characterizes the first phrase. The third phrase (starting with ``or of 
at least $2,500,000'') and the ``or'' that begins the phrase indicate 
that the first and second phrases are one factor to apply to the subset 
of buildings at issue and the third phrase is another factor to apply 
to this subset of buildings. Moreover, if the commenters' 
interpretation that the limiting factors only apply to major 
renovations was correct, then other sections of ECPA would be without 
meaning. Specifically, Congress amended ECPA and set sustainable design 
requirements for new Federal buildings, if life-cycle cost-effective, 
under EPACT 2005. (See 42 U.S.C. 6834(a)(3)(A))(i)(II)). Then, in EISA 
2007, Congress amended ECPA again, to apply sustainable design 
requirements to a subset of new Federal buildings or major renovations, 
without regard to life-cycle-cost-effectiveness. (See 42 U.S.C. 
6834(a)(3)(D)(i)). If the EISA 2007 amendments applied to all new 
Federal buildings, as commenters suggest, then the EPACT 2005 
provisions would be meaningless. While Congress could have rescinded 
the earlier EPACT 2005 sustainable design provisions, it chose not to 
and, therefore, DOE's interpretation that 42 U.S.C. 6834(D)(i) only 
applies to a subset of Federal buildings is reasonable.
---------------------------------------------------------------------------

    \5\ Under ECPA, as amended, today's rule applies to the 
following EISA-covered buildings: ``New Federal buildings and 
Federal buildings undergoing major renovations, with respect to 
which the Administrator of General Services is required to transmit 
a prospectus to Congress under section 3307 of Title 40, in the case 
of public buildings (as defined in section 3301 of Title 40), or of 
at least $2,500,000 in costs adjusted annually for inflation for 
other buildings,'' (42 U.S.C. 6834(a)(3)(D)(i)).
---------------------------------------------------------------------------

    In the final rule, DOE removed the second EISA 2007 condition, 
``public buildings'' (as defined at 40 U.S.C. 3301) for which a 
prospectus is required from Congress, from the scope of coverage for 
low-rise residential buildings. The definition of ``public building'' 
at 40 U.S.C. 3301 exempts buildings and construction projects that are 
on or used in connection with housing and residential projects. (See 40 
U.S.C. 3301(a)(5)(C)(vi)) Therefore, EISA-covered low-rise residential 
buildings only include those buildings with construction costs of at 
least $2.5 million.
Compliance Date of Rule
    DOE received a number of comments on the compliance date proposed 
in the NOPR. This compliance date is consistent with the compliance 
date that DOE has used for baseline Federal building energy efficiency 
standards at 10 CFR parts 433 and 435 for several years. Under 10 CFR 
parts 433 and 435, ``design for construction'' means the stage when the 
energy efficiency and sustainability details (such as insulation 
levels, HVAC systems, water-using systems, etc.) are either explicitly 
determined or implicitly included in a project cost specification. 
Agencies that have already programmed or budgeted for building 
construction before the publication of today's rule likely have not 
included the costs of complying with the requirements of this rule. To 
apply the rule to these buildings would likely impose unanticipated 
costs that could compromise important functional aspects of the 
building or agency mission. Applying the rule to buildings for which 
design for construction begins one year after publication of the final 
rule helps ensure that agencies can anticipate and incorporate the cost 
of meeting this rule in the construction budget or make other necessary 
adjustments.
Overseas Facilities
    Comments received on the Fossil Fuel Reduction Notice of Proposed 
Rulemaking (``fossil fuel reduction NOPR'') (75 FR 63404) (October 15, 
2010) asked about application of the rule to overseas facilities where 
the agency does not have complete control over building design, and 
these comments are equally applicable to today's final rule. DOE 
recognizes that several agencies have buildings overseas and these 
buildings may be subject to a variety of legal authorities specific to 
that agency. For example, DOD commented that an agency may not have 
complete control over the design of a new or renovated building or may 
face technical challenges in meeting the proposed rule in overseas 
locations.\6\ Today's final rule does not expressly address the extent 
to which it may be applicable to buildings overseas as each individual 
agency is best positioned to understand the various and sometimes 
unique authorities that may be applicable to overseas buildings of that 
agency. However, today's rule applies to overseas facilities to the 
extent the requirements are consistent with applicable law.
---------------------------------------------------------------------------

    \6\ DOD-N, No. 25B at p. 8, Docket No. EERE-2010-BT-STD-0031.
---------------------------------------------------------------------------

Privatized Military Housing
    A public comment on a related DOE rulemaking that also proposed to 
amend 10 CFR Parts 433 and 435, ``Fossil Fuel-Generated Energy 
Consumption Reduction for New Federal Buildings and Major Renovations 
of Federal Buildings'' (75 FR 63404) (October 15, 2010), stated that 
DOE needed to clarify whether the rule applies to privatized military 
housing. EISA 2007 modified the ECPA definition of ``Federal building'' 
to apply to ``any building to be constructed by, or for the use of, any 
Federal agency. Such term shall include buildings built for the purpose 
of being leased by a Federal agency, and privatized military housing.'' 
(42 U.S.C. 6832(5)) In addition, Congress again mentioned privatized 
military housing in EISA 2007 when it specified that, ``with respect to 
privatized military housing, the Secretary of Defense, after 
consultation with the Secretary [of Energy] may, through rulemaking, 
develop alternative criteria to those established in subclauses (I) 
[fossil fuel reduction requirements] and (III) [sustainable design 
requirements] of clause (i).'' (42 U.S.C. 6834(a)(3)(D)(vi)) With 
respect to EISA-covered buildings, privatized military housing may not 
meet the definition of ``public building'' at 40 U.S.C. 3301(a)(5), but 
privatized military housing with construction costs of at least $2.5 
million would be EISA-covered buildings.
Application of $2.5 Million Threshold on a Per Building Basis
    Sunnovation encouraged DOE to clarify that multi-unit residential 
projects under a single contract should

[[Page 61566]]

be considered jointly when determining whether the $2.5 million 
threshold is met, as opposed to applying the $2.5 million threshold per 
building. (Sunnovation, No. 28 at p. 2) The cost threshold applies on a 
per building basis. EISA 2007 sets requirements for ``new Federal 
buildings and Federal buildings undergoing major renovations.'' (See 42 
U.S.C. 6834(a)(3)(D)(i)(I)) Nothing in the statute states that this 
threshold applies across multiple buildings that are part of one 
project.

B. Green Building Certification

Compliance With Other Requirements
    DOE requested comments as to whether the minimum allowable level 
for green building rating systems should comply with the Guiding 
Principles and all applicable executive orders. 75 FR 29939. The DOI 
stated that ``If federal buildings, however, are designed, built, and 
perform in accordance with legislative mandates, the Guiding 
Principles, and all applicable executive orders, they are inherently 
green buildings . . . Seeking an additional green building rating is 
redundant.'' (DOI, No. 44 at p. 7) GSA commented that it should not be 
necessary to mandate minimum rating levels. (GSA, No. 72 at p. 12) As 
today's rule explicitly states, DOE is not requiring Federal agencies 
to use a green building certification system. Federal agencies may wish 
to use a green building rating system as a tool to help them meet the 
Guiding Principles or their own internal sustainability goals, although 
agencies are not required to use such a system. DOE encourages Federal 
agencies to consider GSA's 2013 recommendations when choosing a green 
building certification system.\7\ DOE notes that under Executive Orders 
13423 and 13514, Federal agencies are already required to ensure that 
new construction and major renovations of agency buildings comply with 
the Guiding Principles. In today's rule, DOE requires that agencies 
should select a green building certification system that meets the 
prescribed criteria and a level of certification that promotes 
attainment of the Guiding Principles.
---------------------------------------------------------------------------

    \7\ Letter and all supporting material may be found on GSA's Web 
site at http://www.gsa.gov/portal/content/131983.
---------------------------------------------------------------------------

Independent Third-Party Verification
    GSA said that DOE needs to clarify the concept of third-party 
verification of green building rating systems. (GSA, No. 72 at p. 12) 
DOE notes that the rule, based on the statutory requirement at 42 
U.S.C. 6834(a)(3)(D)(iii), requires that the system under which the 
building is certified must allow assessors and auditors to 
independently verify the criteria and measurement metrics of the 
system. To independently verify the criteria and measurement metrics, 
assessors and auditors must be free from bias (financial or otherwise) 
when they evaluate a building for compliance with a green rating 
system. Federal agencies seeking certification from a green building 
rating system cannot assert that assessors and auditors employed by the 
agency are independent. DOE notes that Federal agencies that use a 
green building rating system do not have to use assessors and auditors, 
but must ensure that the green building rating system that it chooses 
allows for independent verification from assessors and auditors.
Choosing a Green Building Certification System
    As required by Section 436(h) of EISA 2007, in 2008 GSA identified 
LEED Silver as a green rating system and level that meets the criteria 
expressly identified in the statute. DOE requested comment on other 
green rating systems and associated levels/points that also would meet 
the statutory criteria. 75 FR 29939. Subsequently, on October 25, 2013, 
GSA recommended that Federal agencies achieve at least a Silver rating 
from LEED or 2 Green Globes from the Green Building Initiative for new 
construction and/or major renovations in order to meet the statutory 
criteria.\8\
---------------------------------------------------------------------------

    \8\ Letter from Daniel Tangherlini, GSA Administrator, to Ernest 
Moniz, Secretary of Energy, dated October 25, 2013.
---------------------------------------------------------------------------

    GBI asked that DOE recognize GBI's Green Globes as a certification 
system that meets all of the criteria called for in the NOPR, noting 
that Federal agencies should achieve Two Green Globes for compliance 
with the rule. (GBI, No, 25 at p. 7) There were many comments 
expressing support for the Green Globes rating system. (Duro-Last 
Roofing, No. 3 at p. 1; Arch Wood Protection, No. 7 at p. 1; Plastic 
Pipe and Fitting Association, No. 9 at p. 2; Iowa Department of Public 
Safety, No. 18 at p. 2; the FVA, No. 21 at p. 1; the NACGB, No. 24 at 
p. 3; the Sustainable Forest Initiative, No. 26 at pp. 1-2, the 
Hardwood Foundation, No. 27 at p. 4, The Sika Corporation, No. 42 at p. 
1; Greenguard Environmental Institute, No. 46 at p. 5; the Sustainable 
Forestry Initiative, No. 52 at p. 2; AF&PA/AWC, No. 59 at p. 6; the 
American Forest Foundation, No. 61 at p. 3; and the RFCI, No. 63 at p. 
7) Many of the supporters of Green Globes stressed that the system was 
ANSI-certified and considered ANSI certification to be important. DOE 
is aware that neither Green Globes nor LEED is an ANSI-certified 
system. Also, as GSA noted in its review of the main commercial green 
building rating systems, neither system fully aligned with Federal 
sustainable building requirements.
    Others recommended that the LEED system be approved for use in 
Federal buildings. (USGBC, No. 60 at p. 8; Stuart D. Kaplow, No. 6 at 
p. 2; GSA Region 8, No. 33 at p. 4; Iowa Department of Public Safety, 
No. 18 at p. 1; NEMA, No. 36 at p. 6; IHS, No. 45 at p. 3; Greenguard 
Environmental Institute, No. 46 at p. 5; SEIU, No. 67 at p. 2; GSA, No. 
72 at p. 14) Weyerhaeuser opposed the endorsement of LEED, mentioning 
LEED is not ANSI-certified. (Weyerhaeuser, No. 62 at p. 4) A 
substantial number of comments addressing forestry and wood 
certification considerations expressed opposition to how the USGBC LEED 
rating system addresses certified wood products and questioned whether 
LEED is developed via a consensus-based process. (AWC No. 22 at p. 4; 
SFI, No. 26 at p. 2; Hardwood Federation No. 51 at p. 2; AF&PA/AWC, No. 
59 at p. 8; the American Forest Foundation, No. 61 at p. 3; 
Weyerhaeuser, No. 62 at pp. 3-4) LEED is not developed by the Federal 
government and, therefore, DOE cannot comment on the content of their 
rating system. The National Park Service recommended allowing other 
rating systems to be used, not just the USGBC LEED system. (NPS, No. 20 
at p. 1)
    NEMA advocated that a separate energy specific rating system such 
as ENERGY STAR Buildings be mandated. (NEMA, No. 36 at p. 6) The 
Sustainable Forestry Initiative expressed support for Built Green 
Canada. (SFI, No. 52 at p. 2) ASHRAE suggested that ASHRAE's Building 
Energy Quotient (Building EQ) labeling program may meet DOE's green 
building certification needs. (ASHRAE, No. 30 at p. 6) AGA expressed 
support for Green Globes, LEED, and Building EQ, the International 
Green Construction Code, and ASHRAE Standard 189.1-2009. (AGA, No. 50 
at. p. 2)
    For residential buildings, a number of commenters expressed support 
for the NAHB and ICC's National Green Building Standard ICC-700-2008. 
(Plastic Pipe and Fittings Association, No. 9 at p. 2; ICC, No. 31 at 
p. 2; IHS, No. 45 at p. 3, Sustainable Forest Initiative, No. 52 at p. 
2; NAHB, No. 55 at p. 2, and the RFCI, No. 63 at p. 5)
    DOE received numerous comments opposing and numerous comments 
supporting DOE choosing one or several green building certification 
systems that

[[Page 61567]]

meet the requirements in the sustainable design NOPR. The Society of 
the Plastics Industry and several other commenters expressed support 
for allowing flexibility for agencies in choosing a green building 
rating system. (SPI, No. 38 at p. 1) Many public comments from 
supporters of Green Globes commended this approach because it allows 
agencies options for using systems tailored to their needs. (AWC, No. 
22 at p. 3; The Vinyl Institute, No. 23 at p. 1; NACGB, No. 24 at p. 2; 
Sustainable Forest Initiative, No. 26 at p. 2) . Several commenters, 
including the RFCI and the NACGB, recommended that DOE determine which 
green rating systems are acceptable for use for Federal buildings. 
(RFCI, No. 63 at p. 10; NACGB, No. 65 at p. 6)
    DOE is not approving by this rule any specific green building 
rating systems for use in new Federal buildings and major renovations. 
Instead, DOE is specifying in regulation criteria for determining 
acceptable green building rating systems to allow agencies flexibility 
in choosing a rating system, including the possibility of using new or 
improved rating systems that are not currently available or known. In 
this way, DOE is allowing Federal agencies to use the system most 
appropriate for their buildings. Any rating system complying with the 
criteria outlined in today's rule shall be permitted. DOE also 
encourages Federal agencies to consider GSA's 2013 green building 
certification system recommendations. In addition, after the GSA Office 
of High Performance Green Federal Buildings completes its next analysis 
of green rating systems as required by EISA 2007 Section 436(h), DOE 
will review GSA's results and may seek to amend the criteria 
established in today's rule.
    One commenter asked what is meant by the phrase ``consensus 
process'' in the rule. (Myers, No. 53 at p 2) For purposes of today's 
rule, DOE clarifies that a ``consensus-based'' process is a group 
decision-making process that seeks not only the agreement of most 
participants, but also the resolution or mitigation of minority 
objections.
    NEMA recommended that DOE consider the use of existing 
certification systems that address occupied buildings and make any 
additional criteria of importance known to the certification bodies. 
(NEMA, No. 36 at p. 6) NAVFAC stated DOE should provide additional 
alternatives for verifying post-occupancy the continued energy and 
environmental performance of new and renovated buildings. (NAVFAC, No. 
47 at p. 8) The final rule requires that the certification system 
include a verification system to demonstrate continued energy and water 
savings at least every four years after initial occupancy. Requiring 
the demonstration every four years will make the frequency consistent 
with other Federal building audit cycles such as the energy and water 
evaluations required under EISA Section 432.
Internal Certification Process
    ECPA gives DOE the option of including a section in the rulemaking 
that would permit Federal agencies to develop internal green building 
certification processes to rate their buildings. (42 U.S.C. 
6834(a)(3)(D)(v)) The NOPR proposed allowing agencies to request DOE 
approval of internal green building certification processes. GSA 
commented that agencies should not be allowed to self-certify buildings 
through an internal green building certification process. (GSA, No. 72 
at p. 12) DOI asked for clarification regarding whether the DOI 
Sustainable Building Assessment and Compliance Tool or the ENERGY STAR 
Portfolio Manager are considered internal green building rating 
systems. (DOI, No. 44 at p. 6) In the final rule, DOE has not included 
provisions on internal green building rating systems as contained in 
the proposed rule because DOE's decision to allow agencies to use any 
green building rating system that meets the criteria in today's rule 
makes this provision unnecessary. In addition, regardless of any 
regulatory text, under today's rule, Federal agencies that choose not 
to use green building rating system, such as LEED or Green Globes, can 
use any appropriate, internal system to ensure that any new Federal 
buildings or major renovations of Federal buildings meet the 
requirements in today's rule.
Effect on State and Local Governments
    NAHB expressed concern that ``today's mandates for federal 
buildings will morph into requirements for private development'' 
because many state and local governments shadow Federal rulemakings. 
(NAHB, no. 55 at p. 5) DOE notes NAHB's concern, but the Federal 
government has a statutory obligation to lead by example. (See 42 
U.S.C. 6831) State and local governments and private entities have no 
obligation to adopt any elements of today's rule.
Codifying EISA Life-Cycle Limit
    Additionally, today's final rule amends the life-cycle analysis 
provisions established in 10 CFR part 436 subpart A. Section 544 of the 
National Energy Conservation Policy Act (NECPA) directed DOE to 
establish practical and effective present value methods for estimating 
and comparing life-cycle costs for Federal buildings, based on capital 
and operating costs during a period of the expected life of the 
building's energy system or 25 years, whichever is shorter. DOE 
established life-cycle cost analyses methodologies and procedures in 10 
CFR part 436 subpart A. Section 441 of EISA 2007 amended section 544 of 
NECPA by replacing the 25 year limit with a 40 year limit. (See, 42 
U.S.C. 8254(a)(1)) Today's final rule amends the life-cycle costs 
analyses regulations to reflect the statutory change. Because the 
amendment to part 436 involves a nondiscretionary changes, the 
Department finds that public notice and comment are unnecessary 
pursuant to 5 U.S.C. 553(b)(B).

III. Regulatory Analyses

A. Review Under Executive Order 12866 and 13563

    Today's final rule is a ``significant regulatory action'' under 
Executive Order 12866, ``Regulatory Planning and Review.'' 58 FR 51735 
(October 4, 1993). Accordingly, today's action was subject to review by 
the Office of Information and Regulatory Affairs in the Office of 
Management and Budget (OMB). OMB has completed its review. DOE has also 
reviewed this regulation pursuant to Executive Order 13563, issued on 
January 18, 2011. 76 FR 3281 (January 21, 2011). EO 13563 is 
supplemental to and explicitly reaffirms the principles, structures, 
and definitions governing regulatory review established in Executive 
Order 12866.
    DOE expects that Federal building construction costs will increase 
as a result of this rule and the cost increase will vary from project 
to project. A 2004 study commissioned by GSA entitled GSA LEED Cost 
Study estimates that a Gold certification under the LEED rating system 
will increase the cost of a mid-rise Federal courthouse or office 
building by 1.4% to 8.1%.\9\
---------------------------------------------------------------------------

    \9\ See https://www.wbdg.org/ccb/GSAMAN/gsaleed.pdf.
---------------------------------------------------------------------------

    Given that green building certification for Federal buildings is 
voluntary, DOE can only make assumptions about the amount of Federal 
agency participation and costs that such a certification might entail. 
The cost impact for any building will vary depending upon the level of 
green building certification being pursued, the square footage of the 
building and the degree of service the agency expects from a 
certification body such as LEED or Green Globes in order to review the 
design of the building.

[[Page 61568]]

Existing Federal requirements mandate that construction of new Federal 
buildings be at a level of performance that meets the current ASHRAE or 
IECC specification, or 30% beyond the current ASHRAE or IECC 
specification, if life-cycle cost effective. Any added costs incurred 
associated with this rulemaking due to the agency voluntarily 
certifying that building as meeting a green building rating system will 
likely be as a result of the process of seeking and obtaining that 
certification.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, Proper Consideration of Small Entities in 
Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). The Department 
has made its procedures and policies available on the Office of General 
Counsel's Web site: http://www.gc.doe.gov.
    DOE has reviewed today's rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. Today's rulemaking applies only to the design and 
construction of new Federal buildings and major renovation to Federal 
buildings. As such, the only entities directly regulated by this 
rulemaking would be Federal agencies. DOE does not believe that there 
will be any impacts on small entities such as small businesses, small 
organizations, or small governmental jurisdictions.
    On the basis of the foregoing, DOE certified that the proposed rule 
would not have a significant economic impact on a substantial number of 
small entities. DOE received no comments on the impact of the proposed 
rule on small entities. As a result, DOE has adopted the prior 
certification without change.

C. Review Under the Paperwork Reduction Act of 1995

    This rulemaking will impose no new information or record keeping 
requirements. Accordingly, Office of Management and Budget (OMB) 
clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 
3501 et seq.)

D. Review Under the National Environmental Policy Act of 1969

    DOE prepared an Environmental Assessment (EA) entitled, 10 CFR 433, 
``Energy Efficiency Standards for the Design and Construction of New 
Federal Commercial and Multi-Family High-Rise Residential Buildings'' 
and 10 CFR 435, ``Energy Efficiency Standards for the Design and 
Construction of New Federal Residential Low-Rise Residential 
Buildings'' pursuant to the Council on Environmental Quality's (CEQ) 
Regulations for Implementing the Procedural Provisions of the National 
Environmental Policy Act (40 CFR parts 1500-1508), the National 
Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et 
seq.), and DOE's NEPA Implementing Procedures (10 CFR part 1021).
    The EA addresses the possible environmental effects attributable to 
the implementation of the final rule. Under today's rule, if an agency 
chooses to use a green building certification system to certify its 
buildings for any purpose, the chosen green building certification 
system must meet certain criteria established by the rule. The rule is 
not expected to cause any adverse health effects, and thus would have 
no environmental justice impacts affecting low-income or minority 
populations. The rule would not have an adverse effect on historic or 
archaeological sites, and would not be affected by a terrorist act. The 
rule will have no significant impact on sensitive environmental 
resources, including wetlands/floodplains, prime agricultural lands, 
endangered species, and sensitive ecosystems. Therefore, DOE has issued 
a Finding of No Significant Impact (FONSI), pursuant to NEPA, the 
regulations of the Council on Environmental Quality (40 CFR parts 1500-
1508), and DOE's regulations for compliance with NEPA (10 CFR part 
1021).

E. Review Under Executive Order 13132, ``Federalism''

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. The Executive Order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive Order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications. 
On March 14, 2000, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in the 
development of such regulations. (65 FR 13735) DOE examined this rule 
and determined that it does not preempt State law and does not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of Government. No further 
action is required by Executive Order 13132.

F. Review Under Executive Order 12988, ``Civil Justice Reform''

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct, rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct, while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, this rule meets the relevant standards of Executive 
Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory

[[Page 61569]]

actions on State, local, and tribal governments and the private sector. 
For a proposed regulatory action likely to result in a rule that may 
cause the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector of $100 million or more in any one 
year (adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a) and (b)) The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and tribal governments on a proposed ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect small governments. On March 18, 1997, 
DOE published a statement of policy on its process for 
intergovernmental consultation under UMRA (62 FR 12820) (also available 
at http://www.gc.doe.gov). This final rule contains neither an 
intergovernmental mandate nor a mandate that may result in the 
expenditure of $100 million or more in any year by State, local, and 
tribal governments, in the aggregate, or by the private sector so these 
requirements under the Unfunded Mandates Reform Act do not apply.

H. Review Under the Treasury and General Government Appropriations Act 
of 1999

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a 
Family Policymaking Assessment for any rule that may affect family 
well-being. This final rule would not have any impact on the autonomy 
or integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 12630, ``Governmental Actions and 
Interference With Constitutionally Protected Property Rights''

    The Department has determined, under Executive Order 12630, 
``Governmental Actions and Interference with Constitutionally Protected 
Property Rights,'' 53 FR 8859 (March 18, 1988), that this rule would 
not result in any takings which might require compensation under the 
Fifth Amendment to the United States Constitution.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), 
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). 
DOE has reviewed today's final rule under the OMB and DOE guidelines 
and has concluded that it is consistent with applicable policies in 
those guidelines.

K. Review Under Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use''

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgated or is expected to lead to 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; and (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
This final rule would not have a significant adverse effect on the 
supply, distribution, or use of energy and, therefore, is not a 
significant energy action. Accordingly, DOE has not prepared a 
Statement of Energy Effects.

IV. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects

10 CFR Parts 433 and 435

    Buildings and facilities, Energy conservation, Engineers, Federal 
buildings and facilities, Housing, Incorporation by reference, 
Sustainable design.

10 CFR Part 436

    Energy conservation, Federal buildings and facilities, Reporting 
and recordkeeping, Requirements, Solar energy.

    Issued in Washington, DC, on October 3, 2014.
David T. Danielson,
Assistant Secretary, Energy Efficiency and Renewable Energy.

    For the reasons set out in the preamble, the Department of Energy 
amends chapter II of title 10 of the Code of Federal Regulations as set 
forth below:

PART 433--ENERGY EFFICIENCY STANDARDS FOR THE DESIGN AND 
CONSTRUCTION OF NEW FEDERAL COMMERCIAL AND MULTI-FAMILY HIGH-RISE 
RESIDENTIAL BUILDINGS

0
1. The authority citation for part 433 continues to read as follows:

    Authority: 42 U.S.C. 6831-6832, 6834-6835; 42 U.S.C. 7101 et 
seq.

0
2. Revise the part heading for part 433 as set forth above.

0
3. In Sec.  433.1:
0
a. Redesignate the existing text as paragraph (a);
0
b. Add and reserve paragraph (b); and
0
c. Add paragraph (c) to read as follows:

Sec.  433.1  Purpose and scope.

* * * * *
    (c) This part also establishes green building certification 
requirements for new Federal buildings that are commercial and multi-
family high-rise residential buildings and major renovations to Federal 
buildings that are commercial and multi-family high-rise residential 
buildings, for which design for construction began on or after October 
14, 2015.

Sec.  433.3  [Amended]

0
4. In Sec.  433.3 in paragraphs (b)(1), (b)(2) and (b)(3) remove 
``433.4, 433.5'' and add in their place ``433.100, and 433.101.''

Sec. Sec.  433.4 through 433.7  [Removed and Reserved]

0
5. Remove and reserve Sec. Sec.  433.4 through 433.7.

0
6. Add subpart A to part 433 to read as follows:

[[Page 61570]]

Subpart A--Energy Efficiency Performance
Sec.
433.100 Energy efficiency performance standard.
433.101 Performance level determination.

Subpart A--Energy Efficiency Performance

Sec.  433.100  Energy efficiency performance standard.

    (a) (1) All Federal agencies shall design new Federal buildings 
that are commercial and multi-family high-rise residential buildings, 
for which design for construction began on or after January 3, 2007, 
but before August 10, 2012, to:
    (i) Meet ASHRAE 90.1-2004, (incorporated by reference, see Sec.  
433.3); and
    (ii) If life-cycle cost-effective, achieve energy consumption 
levels, calculated consistent with paragraph (b) of this section, that 
are at least 30 percent below the levels of the ASHRAE Baseline 
Building 2004.
    (2) All Federal agencies shall design new Federal buildings that 
are commercial and multi-family high-rise residential buildings, for 
which design for construction began on or after August 10, 2012, to:
    (i) Meet ASHRAE 90.1-2007, (incorporated by reference, see Sec.  
433.3); and
    (ii) If life-cycle cost-effective, achieve energy consumption 
levels, calculated consistent with paragraph (b) of this section, that 
are at least 30 percent below the levels of the ASHRAE Baseline 
Building 2007.
    (3) All Federal agencies shall design new Federal buildings that 
are commercial and multi-family high-rise residential buildings, for 
which design for construction began on or after July 9, 2014, to:
    (i) Meet ASHRAE 90.1-2010, (incorporated by reference, see Sec.  
433.3); and
    (ii) If life-cycle cost-effective, achieve energy consumption 
levels, calculated consistent with paragraph (b) of this section, that 
are at least 30 percent below the levels of the ASHRAE Baseline 
Building 2010.
    (b) Energy consumption for the purposes of calculating the 30 
percent savings shall include space heating, space cooling, 
ventilation, service water heating, lighting and all other energy 
consuming systems normally specified as part of the building design 
except for receptacle and process loads.
    (c) If a 30 percent reduction is not life-cycle cost-effective, the 
design of the proposed building shall be modified so as to achieve an 
energy consumption level at or better than the maximum level of energy 
efficiency that is life-cycle cost-effective, but at a minimum complies 
with paragraph (a) of this section.

Sec.  433.101  Performance level determination.

    (a)(1) For Federal buildings for which design for construction 
began on or after January 3, 2007, but before August 10, 2012, each 
Federal agency shall determine energy consumption levels for both the 
ASHRAE Baseline Building 2004 and proposed building by using the 
Performance Rating Method found in Appendix G of ASHRAE 90.1-2004 
(incorporated by reference, see Sec.  433.3), except the formula for 
calculating the Performance Rating in paragraph G1.2 shall read as 
follows:
    (i) Percentage improvement = 100 x ((Baseline building 
consumption--Receptacle and process loads)--(Proposed building 
consumption--Receptacle and process loads))/(Baseline building 
consumption--Receptacle and process loads) (which simplifies as 
follows):
    (ii) Percentage improvement = 100 x (Baseline building 
consumption--Proposed building consumption)/(Baseline building 
consumption--Receptacle and process loads).
    (2) For Federal buildings for which design for construction began 
on or after August 10, 2012, each Federal agency shall determine energy 
consumption levels for both the ASHRAE Baseline Building 2007 and 
proposed building by using the Performance Rating Method found in 
Appendix G of ASHRAE 90.1-2007 (incorporated by reference, see Sec.  
433.3), except the formula for calculating the Performance Rating in 
paragraph G1.2 shall read as follows:
    (i) Percentage improvement = 100 x ((Baseline building 
consumption--Receptacle and process loads)--(Proposed building 
consumption--Receptacle and process loads))/(Baseline building 
consumption--Receptacle and process loads) (which simplifies as 
follows):
    (ii) Percentage improvement = 100 x (Baseline building 
consumption--Proposed building consumption)/(Baseline building 
consumption--Receptacle and process loads).
    (3) For Federal buildings for which design for construction began 
on or after July 9, 2014, each Federal agency shall determine energy 
consumption levels for both the ASHRAE Baseline Building 2007 and 
proposed building by using the Performance Rating Method found in 
Appendix G of ASHRAE 90.1-2010 (incorporated by reference, see Sec.  
433.3), except the formula for calculating the Performance Rating in 
paragraph G1.2 shall read as follows:
    (i) Percentage improvement = 100 x ((Baseline building 
consumption--Receptacle and process loads)--(Proposed building 
consumption--Receptacle and process loads))/(Baseline building 
consumption--Receptacle and process loads) (which simplifies as 
follows):
    (ii) Percentage improvement = 100 x (Baseline building 
consumption--Proposed building consumption)/(Baseline building 
consumption--Receptacle and process loads).
    (b) Each Federal agency shall consider laboratory fume hoods and 
kitchen ventilation systems as part of the ASHRAE-covered HVAC loads 
subject to the 30 percent savings requirements, rather than as process 
loads.

0
7. Add and reserve subpart B to part 433 to read as follows:

Subpart B--Reduction in Fossil Fuel-Generated Energy Consumption 
[Reserved]

0
8. Add subpart C to part 433 to read as follows:

Subpart C--Green Building Certification for Federal Buildings

Sec.  433.300  Green building certification.

    (a) If a Federal agency chooses to use a green building 
certification system to certify a new Federal building or a Federal 
building undergoing a major renovation and such building is also either 
a public building (as defined in 40 U.S.C. 3301) for which transmittal 
of a prospectus to Congress is required under 40 U.S.C. 3307, or a 
Federal building for which estimated new building or major renovation 
design and construction costs are at least $2,500,000 (in 2007 dollars, 
adjusted for inflation), and design for construction began on or after 
October 14, 2015.
    (b) The system under which the building is certified must:
    (1) Allow assessors and auditors to independently verify the 
criteria and measurement metrics of the system;
    (2) Be developed by a certification organization that:
    (i) Provides an opportunity for public comment on the system; and
    (ii) Provides an opportunity for development and revision of the 
system through a consensus-based process;
    (3) Be nationally recognized within the building industry;
    (4) Be subject to periodic evaluation and assessment of the 
environmental and energy benefits that result under the rating system; 
and
    (5) Include a verification system for post-occupancy assessment of 
the rated

[[Page 61571]]

buildings to demonstrate continued energy and water savings at least 
every four years after initial occupancy.
    (c) Certification level. The building must be certified to a level 
that promotes the high performance sustainable building guidelines 
referenced in Executive Order 13423 ``Strengthening Federal 
Environmental, Energy, and Transportation Management'' and Executive 
Order 13514 ``Federal Leadership in Environmental, Energy and Economic 
Performance.''

PART 435--ENERGY EFFICIENCY STANDARDS FOR THE DESIGN AND 
CONSTRUCTION OF NEW FEDERAL LOW-RISE RESIDENTIAL BUILDINGS

0
9. The authority citation for part 435 continues to read as follows:

    Authority: 42 U.S.C. 6831-6832, 6834-6835; 42 U.S.C. 7101 et 
seq.

0
10. The heading for part 435 is revised to read as set forth above.

0
11. In Sec.  435.1:
0
a. Redesignate the existing text as paragraph (a);
0
b. Add and reserve paragraph (b); and
0
c. Add paragraph (c) to read as follows:

Sec.  435.1  Purpose and scope.

* * * * *
    (c) This part also establishes green building certification 
requirements for new Federal buildings that are low-rise residential 
buildings and major renovations to Federal buildings that are low-rise 
residential buildings, for which design for construction began on or 
after October 14, 2015.

Sec. Sec.  435.6 and 435.7  [Removed]

0
12. Remove Sec. Sec.  435.6 and 435.7.

Sec.  435.8  [Redesignated as Sec.  435.6]

0
13. Section 435.8 is redesignated as Sec.  435.6.

Subparts B and C of Part 435 [Redesignated]

0
14. Redesignate subparts B and C of part 435 as subparts D and E of 
part 435.

0
15. Redesignate Sec. Sec.  435.300 through 435.306 as Sec. Sec.  
435.500 through 435.506 respectively.

0
16. Add and reserve a new subpart B to read as follows:

Subpart B--Reduction in Fossil Fuel-Generated Energy Consumption 
[Reserved]

0
17. Add a new subpart C to read as follows:

Subpart C--Green Building Certification for Federal Buildings

Sec.  435.300  Green building certification.

    (a) If a Federal agency chooses to use a green building 
certification system to certify a new Federal building or a Federal 
building undergoing a major renovation and construction costs for such 
new building or major renovation are at least $2,500,000 (in 2007 
dollars, adjusted for inflation), and design for construction began on 
or after October 14, 2015:
    (b) The system under which the building is certified must:
    (1) Allow assessors and auditors to independently verify the 
criteria and measurement metrics of the system;
    (2) Be developed by a certification organization that
    (i) Provides an opportunity for public comment on the system; and
    (ii) Provides an opportunity for development and revision of the 
system through a consensus-based process;
    (3) Be nationally recognized within the building industry;
    (4) Be subject to periodic evaluation and assessment of the 
environmental and energy benefits that result under the rating system; 
and
    (5) Include a verification system for post occupancy assessment of 
the rated buildings to demonstrate continued energy and water savings 
at least every four years after initial occupancy.
    (c) Certification level. The building must be certified to a level 
that promotes the high performance sustainable building guidelines 
referenced in Executive Order 13423 ``Strengthening Federal 
Environmental, Energy, and Transportation Management'' and Executive 
Order 13514 ``Federal Leadership in Environmental, Energy and Economic 
Performance.''

PART 436--FEDERAL ENERGY MANAGEMENT AND PLANNING PROGRAMS

0
18. The authority citation for part 436 is revised to read as follows:

    Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 8254; 42 U.S.C. 
8258; 42 U.S.C. 8259b.

Subpart A--Methodology and Procedures for Life Cycle Cost Analyses

0
19. Revise Sec.  436.14(d) to read as follows:

Sec.  436.14  Methodological assumptions.

* * * * *
    (d) Each Federal agency shall assume that the appropriate study 
period is as follows:
    (1) For evaluating and ranking alternative retrofits for an 
existing Federal building, the study period is the expected life of the 
retrofit, or 40 years from the beginning of beneficial use, whichever 
is shorter.
    (2) For determining the life cycle costs or net savings of mutually 
exclusive alternatives for a given building energy system or building 
water system (e.g., alternative designs for a particular system or size 
of a new or retrofit building energy system or building water system), 
a uniform study period for all alternatives shall be assumed which is 
equal to--
    (i) The estimated life of the mutually exclusive alternative having 
the longest life, not to exceed 40 years from the beginning of 
beneficial use with appropriate replacement and salvage values for each 
of the other alternatives; or
    (ii) The lowest common multiple of the expected lives of the 
alternative, not to exceed 40 from the beginning of beneficial use with 
appropriate replacement and salvage values for each alternative.
    (3) For evaluating alternative designs for a new Federal building, 
the study period extends from the base year through the expected life 
of the building or 40 years from the beginning of beneficial use, 
whichever is shorter.
* * * * *
[FR Doc. 2014-24150 Filed 10-10-14; 8:45 am]
BILLING CODE 6450-01-P
```