Federal Register / Vol. 75, No. 103 / Friday, May 28, 2010 / Proposed Rules 29933 

DEPARTMENT OF ENERGY 

10 CFR Parts 433 and 435 

[Docket No. EE–RM/STD–02–112] 

RIN 1904–AC13 

Energy Efficiency and Sustainable 

Design Standards for New Federal 

Buildings 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Department of 

Energy (DOE) is publishing this notice 

of proposed rulemaking (NOPR) to 

implement provisions of the Energy 

Conservation and Production Act, as 

amended by the Energy Policy Act of 

2005 and the Energy Independence and 

Security Act of 2007, that require DOE 

to establish revised performance 

standards for the construction of new 

Federal buildings and major renovations 

of Federal buildings. This NOPR 

specifically addresses the use of 

sustainable design principles for siting, 

design, and construction, 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. 

DATES: Public comments on this 

proposed rule will be accepted until 

July 27, 2010. The Department will hold 

a public meeting on Wednesday, July 

28, 2010, from 9 a.m. to 4 p.m., in 

Washington, DC. DOE must receive 

requests to speak at the public meeting 

before 4 p.m., Wednesday, July 14, 

2010. DOE must receive a signed 

original and an electronic copy of 

statements to be given at the public 

meeting before 4 p.m., Wednesday, July 

21, 2010. 

DOE will accept comments, data, and 

information regarding the NOPR before 

and after the public meeting, but no 

later than July 27, 2010. 

ADDRESSES: The public meeting will be 

held at the U.S. Department of Energy, 

Forrestal Building, Room 8E–089. You 

may submit comments using any of the 

following methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

2. E-mail: Cyrus.Nasseri@ee.doe.gov. 

Include EE–RM/STD–02–112 and/or 

RIN 1904–AC13 in the subject line of 

the message. 

3. Postal Mail: Cyrus Nasseri, U.S. 

Department of Energy, Federal Energy 

Management Program, Mailstop EE–2L, 

Energy Efficiency and Sustainable 

Design Standards for New Federal 

Commercial and Multi-Family HighRise Residential Buildings and Energy 

Efficiency and Sustainable Design 

Standards for New Federal Low-Rise 

Residential Buildings, EE–RM/STD–02– 

112 and/or RIN 1904–AC13, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121. 

Telephone: (202) 586–9138. Please 

submit one signed paper original. 

4. Hand Delivery/Courier: Cyrus 

Nasseri, U.S. Department of Energy, 

Federal Energy Management Program, 

Room 5E–080, 1000 Independence 

Avenue, SW., Washington, DC 20585– 

0121. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Information 

Number (RIN) for this rulemaking. 

Docket: For access to the docket to 

read background documents or 

comments received by DOE, go to the 

U.S. Department of Energy, Forrestal 

Building, Room 5E–080 (Resource Room 

of the Federal Energy Management 

Program), 1000 Independence Avenue, 

SW., Washington, DC, (202) 586–9127, 

between 9 a.m. and 4 p.m., Monday 

through Friday, except Federal holidays. 

Please call Cyrus Nasseri at the above 

telephone number for additional 

information regarding visiting the 

Resource Room. 

If you submit information that you 

believe to be exempt by law from public 

disclosure, you should submit one 

complete copy, as well as one copy from 

which the information claimed to be 

exempt by law from public disclosure 

has been deleted. DOE is responsible for 

the final determination with regard to 

disclosure or nondisclosure of the 

information and for treating it 

accordingly under the DOE Freedom of 

Information regulations at Title 10 of the 

Code of Federal Register (10 CFR) 

1004.11. 

FOR FURTHER INFORMATION CONTACT: 

Cyrus Nasseri, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Federal Energy 

Management Program, EE–2L, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121, (202) 586– 

9138, e-mail: Cyrus.Nasseri@ee.doe.gov, 

or Chris Calamita, U.S. Department of 

Energy, Office of the General Counsel, 

Forrestal Building, GC–72, 1000 

Independence Avenue, SW, 

Washington, DC 20585, (202) 586–1777, 

e-mail: 

Christopher.Calamita@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

II. Discussion of Today’s Action 

III. Reference Resources 

IV. Regulatory Analysis 

V. Approval of the Office of the Secretary 

I. Introduction 

Section 305 of the Energy 

Conservation and Production Act 

(ECPA) established energy conservation 

requirements for Federal buildings. (42 

U.S.C. 6834) Section 109 of the Energy 

Policy Act of 2005 amended section 305 

of ECPA by adding section 305(a)(3)(A), 

which requires DOE, through regulation, 

to update the energy efficiency 

requirements for new Federal buildings. 

(42 U.S.C. 6834(a)(3)(A)) DOE is also 

required to establish a requirement that, 

if life-cycle cost-effective, sustainable 

design principles must be applied to the 

siting, design, and construction of all 

new and replacement buildings. (42 

U.S.C. 6834(a)(3)(A)(i)(II)) Section 433 

of the Energy Independence and 

Security Act of 2007 (EISA; Pub. L. 110– 

140) further amended section 305 of 

ECPA to apply sustainable design 

principles to certain new Federal 

buildings and major renovations of 

Federal buildings without specifying 

consideration of life-cycle costeffectiveness. (42 U.S.C. 

6834(a)(3)(D)(i)(III)) In addition, DOE is 

directed to establish regulations that 

require water conservation technologies 

and solar hot water heaters be applied 

to the extent life-cycle cost-effective. (42 

U.S.C. 6834 (a)(3)(A)(ii) and 

(a)(3)(D)(vii)) Today’s proposed rule 

addresses sustainable design principles, 

water conservation technologies, and 

solar water heating. Additionally, as 

amended by EISA, ECPA directs DOE to 

identify a certification system and level 

for rating green 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)) Finally, section 433 

of EISA revised the definition of 

‘‘Federal building’’ applicable to the 

regulations for Federal buildings. (42 

U.S.C. 6832(6)) This definitional change 

is addressed in today’s notice. 

DOE has already addressed energy 

efficiency in new Federal buildings in a 

final rule published on December 21, 

2007 (72 FR 72565). Specifically, new 

Federal buildings must be designed to 

achieve energy consumption levels that 

are at least 30 percent below the 

updated minimum standards referenced 

in section 305(a)(2), if life-cycle costeffective. (42 U.S.C. 6834(a)(3)(A)(i)(I); 

see also 10 CFR 433.4 and 435.4) DOE 

placed the revised Federal commercial 

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29934 Federal Register / Vol. 75, No. 103 / Friday, May 28, 2010 / Proposed Rules 

1The Military Housing Privatization Initiative 

(MHPI) is a public/private program whereby private 

sector developers may own, operate, and maintain 

military family housing. The MHPI was enacted on 

February 10, 1996, as part of the National Defense 

Authorization Act for fiscal year 1996. 

2Under 40 U.S.C. 3301(5) ‘‘public building’’ is a 

building, whether for single or multitenant 

occupancy, and its grounds, approaches, and 

appurtenances, which is generally suitable for use 

as office or storage space or both by one or more 

Federal agencies or mixed-ownership Government 

corporations. 

‘‘Public building’’ includes Federal office 

buildings, post offices, customhouses, courthouses, 

appraisers stores, border inspection facilities, 

warehouses, record centers, relocation facilities, 

telecommuting centers, similar Federal facilities, 

and any other buildings or construction projects the 

inclusion of which the President considers to be 

justified in the public interest. 

The definition does not include a building or 

construction project that is on the public domain 

(including that reserved for national forests and 

other purposes); that is on property of the 

Government in foreign countries; that is on Indian 

and native Eskimo property held in trust by the 

Government; that is on land used in connection 

with Federal programs for agricultural, recreational, 

and conservation purposes, including research in 

connection with the programs; that is on or used in 

connection with river, harbor, flood control, 

reclamation or power projects, for chemical 

manufacturing or development projects, or for 

nuclear production, research, or development 

projects; that is on or used in connection with 

housing and residential projects; that is on military 

installations (including any fort, camp, post, naval 

training station, airfield, proving ground, military 

supply depot, military school, or any similar facility 

of the Department of Defense); that is on 

installations of the Department of Veterans Affairs 

used for hospital or domiciliary purposes; or the 

exclusion of which the President considers to be 

justified in the public interest. 

and multi-family high-rise residential 

building standards in a new 10 CFR Part 

433, entitled ‘‘Energy Efficiency 

Standards for the Design and 

Construction of New Federal 

Commercial and Multi-Family HighRise Residential Buildings.’’ The 

updated standards for Federal low-rise 

residential buildings are contained in 10 

CFR Part 435, Subpart A. 

Section 433 of EISA added section 

305(a)(3)(D) to require fossil fuel energy 

savings for certain building types. DOE 

will address the fossil fuel requirements 

of section 433 of EISA in a separate 

rulemaking. The fossil fuel requirement 

rulemaking may amend the same 

regulatory sections as those proposed to 

be amended in today’s notice of 

proposed rulemaking. The proposed 

regulatory text in today’s document 

would amend the current regulatory 

text, without consideration of 

amendments that may result from the 

fossil fuel requirement rulemaking. If 

and when these rulemakings are 

finalized, DOE will coordinate the final 

regulatory text between the two 

rulemakings. 

DOE notes that it is required to review 

and revise energy efficiency 

requirements for Federal building as the 

voluntary industry codes are updated. 

(42 U.S.C. 6834(a)(3)(b)) DOE intends to 

address this review of the current 

versions of ASHRAE Standard 90.1 and 

the International Code Council 

International Energy Conservation Code 

(IECC) as the minimum energy 

efficiency performance standards in 10 

CFR Parts 433 and 435 in a separate 

rulemaking. 

II. Discussion of Today’s Action 

A. Scope of Proposed Rulemaking 

1. Definition of ‘‘Federal Building’’ 

Section 305 of ECPA requires, in part, 

that DOE establish, by rule, standards 

for new Federal buildings that require, 

if life-cycle cost-effective, new Federal 

buildings be designed to achieve energy 

consumption levels that are at least 30 

percent below the levels established in 

the applicable industry code, and that 

sustainable design principles are 

applied to the siting, design, and 

construction of all new and replacement 

buildings. (42 U.S.C. 6834(a)(3)(A)(i)) 

Further, water conservation 

technologies must be applied to the 

extent that the technologies are lifecycle cost-effective. (42 U.S.C. 

6834(a)(3)(A)(ii)) and 6834(a)(3)(D)(vii) 

As stated previously in this notice, 

DOE has established regulations that 

address the energy consumption 

requirements for new Federal buildings. 

(72 FR 72565) In the final rule for the 

energy consumption requirements of 

new Federal buildings, DOE relied on 

the statutory definition of ‘‘Federal 

building,’’ i.e., ‘‘any building to be 

constructed by, or for the use of, any 

Federal agency which is not legally 

subject to State or local building codes 

or similar requirements.’’ (72 FR 72565) 

Section 433 of EISA amended the 

definition of ‘‘Federal building’’ 

applicable to section 305 of EPCA, 

including the energy consumption, 

sustainability, and water conservation 

requirements. The statute now defines 

‘‘Federal building’’ to mean any building 

to be constructed by, or for the use of, 

any Federal agency. DOE is proposing 

that the term include buildings built for 

the purpose of being leased by a Federal 

agency, and privatized military housing 

awarded subsequent to promulgation of 

this rule.1 (42 U.S.C. 6832(6)) DOE is 

proposing to revise the definition of 

‘‘new Federal building’’ consistent with 

the amendment in EISA. Additionally, 

DOE is considering 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., ‘‘leaseconstructs’’). DOE welcomes comments 

on these considerations. 

2. Consideration of Life-Cycle Costs 

In general, DOE is proposing that the 

sustainable design requirements be 

applied to all new and replacement 

Federal buildings to the extent those 

requirements are life-cycle cost 

effective. For a subset of new Federal 

buildings and Federal buildings 

undergoing major renovation, DOE is 

proposing that the sustainable design 

principles be applied to the ‘‘extent 

practicable.’’ As explained further in 

this section, ‘‘extent practicable’’ 

considerations would include specified 

cost considerations separate from a lifecycle cost threshold. 

Section 305(a)(3)(i)(II) requires DOE to 

establish regulations that require 

sustainable design principles to be 

applied to the siting, design, and 

construction of all new and replacement 

Federal buildings, to the extent lifecycle cost-effective. (42 U.S.C. 

6834(a)(3)(i)(II)) 

Section 305(a)(3) of ECPA as amended 

directs DOE to establish regulations that 

require sustainable design principles be 

applied to a subset of new Federal 

buildings and Federal buildings 

undergoing major renovation, without 

specifying consideration of life-cycle 

cost. (42 U.S.C. 6834(a)(3)(D)(i)(III)) A 

building is in the subset of new Federal 

buildings and Federal buildings 

undergoing major renovations if the 

building is: 

• A public building as defined in 40 

U.S.C. 3301,2 for which the 

Administrator of General Services is 

required to transmit a prospectus to 

Congress under 40 U.S.C. 3307, or 

• A building and major renovation for 

which the construction project cost is at 

least $2,500,000 (in 2007 dollars, 

adjusted for inflation using U.S. 

Department of Labor Producer Price 

Indexes). 

If a new or replacement Federal 

building does not fit into one of these 

two categories, sustainable design 

principles would apply only to the 

extent that they are life-cycle costeffective. 

DOE is proposing that sustainable 

design principles be applied to the new 

Federal buildings and major renovations 

identified by the statute. The 

sustainable design principles set forth in 

the requirements of this proposed rule 

would be required to be incorporated 

into the new Federal building or major 

renovation design ‘‘to the extent 

practicable,’’ except in the case of indoor 

environmental quality requirements, 

which would be mandatory. DOE 

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Federal Register / Vol. 75, No. 103 / Friday, May 28, 2010 / Proposed Rules 29935 

believes that indoor air quality 

requirements are vitally important to the 

health and life safety of Federal 

employees and visitors to Federal 

buildings and has therefore emphasized 

their importance by making the 

requirements mandatory. For major 

renovations, the sustainable design 

requirements would only apply to the 

portion of the building being renovated. 

Today’s proposed rule would require 

Federal agencies to apply sustainable 

design principles to the extent 

practicable when designing the new 

Federal buildings and major renovations 

identified by the statute. Under the 

proposed rule, actions would be 

required to be implemented ‘‘to the 

extent practicable;’’ i.e., actions would 

need to be implemented unless an 

agency determines that: Full 

implementation would prevent the 

building or facility from fulfilling a key 

design or function objective; the 

necessary products or materials cannot 

be commercially procured in a timely 

fashion; the net increases in total project 

life cycle costs are very large, or if initial 

funding required to integrate features to 

comply with this rule exceeds 3 percent 

of total first costs. DOE requests 

comments on whether or not the 3 

percent of total first cost limitation 

should be added directly to the 

definition of ‘‘to the extent practicable’’ 

in today’s rulemaking. In this 

rulemaking, individual sustainable 

design measures are discussed 

individually. It is the intent of the 3 

percent of total project cost that the 

entire package of sustainable design 

measure be less than 3 percent of the 

total first cost for the project. In 

addition, DOE requests comments on 

whether ‘‘very large’’ net increases in 

total project life cycle costs should be 

numerically defined, and if so, what 

that threshold or range should be. 

DOE believes that life cycle costing is 

an important consideration in the 

definition of ‘‘to the extent practicable,’’ 

but that failure of proof of life-cycle 

cost-effectiveness in of itself is not 

sufficient to disregard the application of 

sustainable design principles. The lifecycle cost analysis may not capture all 

of the benefits from sustainable design. 

Environmental impacts often extend far 

beyond the ‘‘life’’ of a building or 

measures installed in a building. If a 

required action cannot be fully 

implemented for one of these reasons, 

agencies should endeavor to implement 

the required action to the maximum 

extent feasible. 

DOE is proposing that new Federal 

buildings that are not in these two 

categories identified above would need 

to comply with the sustainable design 

requirements only if they are life-cycle 

cost-effective. 

The requirements in this proposed 

rule would not apply to major 

renovations that have construction 

project costs less than $2,500,000 (in 

2007 dollars, adjusted for inflation using 

U.S. Department of Labor Producer 

Price Indexes). 

3. Definition of ‘‘Major Renovation’’ 

Major renovations are defined in the 

proposed rule as changes to a building 

that provide significant opportunities 

for substantial improvement in the 

sustainable design elements covered in 

this rule, including energy efficiency. 

DOE has also included in the definition 

of major renovation the statement that 

any renovation that exceeds 25 percent 

of the replacement value of the building 

would be considered a major 

renovation. The replacement value is 

used rather than the current value 

because the current value of old 

buildings in poor condition may be very 

low. The proposed rule would only 

apply to portions of the building or 

building system that are being 

renovated. For example, if the 

renovation includes the replacement of 

the watering system for landscaping 

around an office building, then the 

requirements for outdoor water use in 

the rules would apply. DOE notes that 

this definition has been used for a 

number of years by the Department of 

Defense, the Federal government’s 

single largest manager of Federal 

buildings. DOE welcomes comments on 

the definition of ‘‘major renovation,’’ 

particularly as to whether the definition 

would result in an unreasonable burden 

on planned renovations that are not 

extensive enough to accomplish 

sustainable design objectives. 

B. Solar Hot Water Heaters 

Section 523 of EISA modifies Section 

305(a)(3)(A) of ECPA to require 30 

percent of hot water demand in new 

Federal buildings or Federal buildings 

undergoing major renovations to be met 

by solar water heaters if life-cycle costeffective. (42 U.S.C. 6834(a)(3)(A)(iii)) 

DOE interprets Section 523 to include 

all hot water usage in the building, 

including hot water used for restrooms, 

janitorial closets, food handling 

facilities, and laundry facilities. 

Agencies should calculate the total hot 

water load for the building and then 

determine if it is life cycle cost-effective 

to use solar hot water systems to meet 

30 percent of the annual demand. This 

requirement has been reflected in the 

proposed rule. DOE welcomes 

comments on this requirement. 

C. Federal Leadership in High 

Performance and Sustainable 

Building—Guiding Principles 

DOE is proposing to add requirements 

to 10 CFR Parts 433 and 435 to 

implement the directive of section 305 

of ECPA that Federal buildings use 

sustainable design principles for siting, 

design, and construction, and water 

conservation. As a basis for the 

proposed sustainability requirements 

DOE utilized the December 2008 version 

of the Guiding Principles originally 

adopted in the Federal Leadership in 

High Performance and Sustainable 

Building Memorandum of 

Understanding (MOU) signed by most 

Federal agencies. DOE incorporated 

those requirements into today’s 

proposed rulemaking. The guiding 

principles are aimed at helping Federal 

agencies and organizations: 

• Reduce the total ownership cost of 

facilities. 

• Improve energy efficiency and 

water conservation. 

• Provide safe, healthy, and 

productive built environments. 

• Promote sustainable environmental 

stewardship. 

Under Executive Order 13514, 

‘‘Federal Leadership in Environmental, 

Energy and Economic Performance’’ 

(October 5, 2009), Federal agencies are 

already required to ensure that new 

construction and major renovations of 

agency buildings comply with the 

Guiding Principles. By basing the 

rulemaking on the Guiding Principles 

already in use, DOE intends to minimize 

the regulatory burden on Federal 

agencies. DOE notes that the Guiding 

Principles do not address the issue of 

site selection, and therefore provisions 

related to site selection have been added 

to the proposal. Additionally, DOE is 

aware that revisions to the Guiding 

Principles are currently being 

considered. DOE will evaluate and 

consider any revisions to the Guiding 

Principles as part of the final rule. 

DOE is aware that several voluntary 

industry standards that would address 

sustainable design are currently under 

development. Specifically, DOE is 

aware of the development of: 

• ASHRAE 189.1P—Standard for the 

Design of High-Performance, Green 

Buildings Except Low-Rise Residential 

Buildings, 

• The International Green 

Construction Code under development 

by the International Code Council (ICC), 

and 

• The National Green Building 

Standard jointly developed by the 

National Association of Home Builders 

and the ICC for residential buildings. 

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29936 Federal Register / Vol. 75, No. 103 / Friday, May 28, 2010 / Proposed Rules 

To the extent that such voluntary 

industry standards are finalized prior to 

the issuance of a final rule under this 

rulemaking, DOE may consider 

incorporating some or all of the 

provisions of the identified voluntary 

industry standards. DOE welcomes 

comments on whether these or other 

nationally recognized green/sustainable 

building design standards should be 

deemed to comply with the sustainable 

design requirements in the DOE rules. 

The proposed requirements for 

sustainable design are nearly identical 

for commercial buildings (including 

high-rise residential) in 10 CFR 433 and 

residential buildings in 10 CFR part 435. 

The differences are a requirement for 

radon control in residential buildings, 

and a signage requirement to prohibit 

smoking for commercial buildings only. 

Radon is generally considered to be less 

of a potential health concern in 

commercial buildings than in 

residential buildings. The signage 

requirement for prohibiting smoking is 

based on GSA notice in Federal Register 

on December 22, 2008. 

The major sustainable design 

elements of the proposed rules are: 

• Integrated Design Principles. 

• Optimize Energy Performance. 

• Protect and Conserve Water. 

• Enhance Indoor Environmental 

Quality. 

• Reduce Environmental Impact of 

Materials. 

• Building Siting. 

1. Integrated Design Principles 

Integrated design principles include 

planning, setting goals, and building 

commissioning. Building 

commissioning is the process of 

ensuring that building systems and 

equipment are designed, installed, 

tested, and capable of being operated 

and maintained according to the 

owner’s or occupants operational needs. 

Building commissioning is a key part of 

designing and building highperformance buildings because it helps 

ensure that controls, sensors, and 

equipment will perform as intended 

throughout their expected life. Building 

commissioning requires that the facility 

and all of its systems and assemblies are 

planned, designed, installed, tested, 

operated, and maintained to meet the 

owner’s or occupant’s project 

requirements. 

The building commissioning 

requirements in the proposed rule are 

based on the Guiding Principles. 

Additionally, DOE has specified the 

operation of a building as part of the 

commissioning efforts. DOE recognizes 

that certain Federal agencies are 

required to conduct water and energy 

evaluations of certain facilities. (42 

U.S.C. 8253(f)). DOE has issued 

guidance on the implementation of this 

requirement, which would address the 

operational component of the 

commissioning requirement proposed in 

this rulemaking. That guidance can be 

found at http://www1.eere.energy.gov/ 

femp/pdfs/eisa_s432_guidelines.pdf. 

2. Optimize Energy Performance 

Energy efficiency is considered as a 

major component of sustainable 

building design. As mentioned above, 

DOE issued a final rule on December 21, 

2007, that incorporates the energy 

efficiency standards required in section 

305 of ECPA. That final rule 

incorporated the American Society of 

Heating, Refrigerating, and AirConditioning Engineers ANSI/ASHRAE/ 

IESNA Standard 90.1–2004, ‘‘Energy 

Standard for Buildings Except Low-Rise 

Residential Buildings,’’ and the 

International Code Council’s 2004 

‘‘International Energy Conservation 

Code.’’ That final rule also established a 

requirement for new Federal buildings 

to achieve a level of energy 

consumption at least 30 percent below 

that of the Standard 90.1–2004 or the 

2004 IECC, as appropriate, when lifecycle cost-effective, as directed by the 

statute. 

Today’s notice of proposed 

rulemaking expands on the energyrelated requirements in the previously 

published final rule to include solar 

water heating and renewable energy 

generation projects. The solar water 

heating requirements are from section 

305 of ECPA as amended by section 523 

of EISA. The proposed renewable 

energy generation requirements are 

reflective of the Guiding Principles and 

would support compliance with section 

203 of the Energy Policy Act of 2005, 

which sets renewable energy 

consumption percentages for Federal 

agencies. (42 U.S.C. 15852) 

3. Protect and Conserve Water 

Water is a key element of 

sustainability because water is a limited 

resource. The U.S. Government 

Accountability Office estimated in 2003 

that 36 States will face water shortages 

by 2013. The U.S. Geological Survey 

estimates water use in the U.S. and 

reports that 410 billion gallons per day 

were withdrawn for all uses during 

2005. Public supply (including 

commercial and industrial uses) and 

domestic water use was 48 billion 

gallons per day, or 12 percent of the 

national total. Most water use in the 

nation is for thermoelectric power (49 

percent) and irrigation (31 percent). 

The proposed rule would implement 

the requirement established in EPCA, as 

amended, that if water is used to 

achieve energy efficiency, water 

conservation technologies shall be 

applied to the extent that the 

technologies are life-cycle cost-effective. 

(42 U.S.C. 6834(a)(3)(A)(ii)) As 

proposed, this requirement would apply 

in instances in which a Federal agency 

was relying on technologies such as 

cooling towers or condensing units as a 

means to achieve energy efficiency. In 

those instances, the proposed regulation 

would require that, to the extent lifecycle cost-effective, the technologies are 

water efficient. 

The proposed rule adopts the water 

saving targets from the Guiding 

Principles: a 20 percent reduction of 

indoor potable water usage and a 50 

percent reduction in outdoor potable 

water usage. DOE is interested in input 

on how to define procedures relating to 

the calculation of baseline water use 

and water savings for meeting these 

requirements. The DOE Federal Energy 

Management Program provides an 

estimate of water use by building type 

(http://www1.eere.energy.gov/femp/ 

program/ 

waterefficiency_useindices.html) and in 

the absence of other data, DOE proposes 

to use these as the baseline. To the 

extent practicable, use of WaterSense 

labeled products, or products with 

comparable water efficiency, for product 

categories labeled by WaterSense is 

required. 

The issue of stormwater and 

hydrology is not addressed in this rule. 

Stormwater runoff for ‘‘Federal 

development projects’’ is explicitly 

addressed in Section 438 of EISA. The 

U.S. Environmental Protection Agency 

(EPA) has issued guidance on 

complying with section 438 of EISA 

(http://www.epa.gov/owow/nps/lid/ 

section438/). 

4. Enhance Indoor Environmental 

Quality 

The indoor environmental quality 

requirements from the Guiding 

Principles were adapted for this 

proposed rule. Leading sustainability 

programs include indoor environmental 

quality in their scope. A key component 

of the indoor environment is air quality. 

All buildings have some potential for 

indoor air quality-related health 

problems, such as ‘‘sick-building 

syndrome.’’ The proposed rule addresses 

the major aspects of indoor air quality— 

source control for pollutants, moisture, 

and ventilation. 

For pollutant sources, the rules 

specify low-emitting materials and 

products used within buildings. For 

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Federal Register / Vol. 75, No. 103 / Friday, May 28, 2010 / Proposed Rules 29937 

moisture control, the proposed rule 

addresses the potential for moisture 

flows and condensation that may lead to 

the development of mold. The proposed 

rule does not identify a particular 

standard to address moisture control. 

DOE requests comment on whether a 

voluntary industry standard, such as the 

ASHRAE ‘‘Indoor Air Quality Guide: 

Best Practices for Design, Construction 

and Commissioning’’ (2009), should be 

incorporated into the regulation. 

For ventilation, the proposed rule 

would require use of ASHRAE 

‘‘Standards on Ventilation for 

Acceptable Indoor Air Quality: Standard 

62.1’’ for commercial buildings and 

residential high-rise buildings and 

Standard 62.2 for low-rise residential 

buildings. Signage prohibiting smoking 

would be required for commercial and 

high-rise residential buildings. 

Radon control requirements from 

ASTM Standard 1465 are included in 

the proposed rule for low-rise 

residential buildings. DOE requests 

comments on the inclusion of a radon 

control requirement. DOE also 

welcomes suggestions for other or 

additional radon standards that could be 

incorporated into this rule. Measures to 

seal the foundation to prevent or reduce 

radon from entering the building would 

be required in regions with high radon 

potential (about one-third of the nation, 

mostly in colder States). DOE has taken 

the definition of high radon potential 

from EPA as counties that have a 

predicted average indoor radon 

screening level greater than 4 pCi/L 

(picocuries per liter), as shown on the 

map at: http://www.epa.gov/radon/ 

zonemap.html. DOE requests comments 

on this definition of high radon 

potential. 

Radon is a cancer-causing naturally 

occurring radioactive gas that is the 

second leading cause of lung cancer in 

America and EPA estimates this leads to 

the loss of about 20,000 lives annually 

in radon related lung cancers. 

5. Reduce Environmental Impacts of 

Materials 

Buildings use a diverse array of 

products. There is a limited supply of 

some products’ raw materials. Products 

can also require a substantial amount of 

energy to be produced and transported. 

In 1998, an EPA report found 10.8 

million tons of waste was generated 

from new building construction in 1996. 

In 2003, EPA reported a 21 percent 

increase in construction waste since the 

1998 report. The proposed rule would 

reduce construction waste and would 

require the use of materials with 

recycled content and rapidly renewable 

materials. The proposals for 

construction waste and recycled content 

are taken from the Guiding Principles. 

The 10 percent recycle content 

requirement is adopted from the original 

version of the Guiding Principles. 

The proposed rule also addresses 

ozone depletion. The EPA defines 

ozone-depleting substance(s) (ODS) as a 

compound that contributes to 

stratospheric ozone depletion. ODS 

include CFCs, HCFCs, halons, methyl 

bromide, carbon tetrachloride, and 

methyl chloroform. ODS are generally 

very stable in the troposphere and only 

degrade under intense ultraviolet light 

in the stratosphere. When they break 

down, they release chlorine or bromine 

atoms, which then deplete ozone. The 

proposed rule would instruct agencies 

to not use ozone depleting compounds 

if an environmentally preferable 

material is available. Again, this 

element of the rule was adapted from 

the Guiding Principles. 

DOE requests comments on whether 

requirements related to waste diversion 

and ozone depletion should be included 

in the rulemaking. 

6. Building Siting 

The proposed rule includes 

requirements for siting and directs 

Federal agencies to comply with all 

applicable Executive Orders, statutes 

and regulations. The applicable siting 

authorities may include Executive 

Orders 12072, 13006, and 13514; the 

Rural Development Act of 1972; Federal 

Urban Land Use Act of 1949; and Public 

Buildings Cooperative Use Act of 1976. 

Site selection is important to 

minimize direct and indirect 

environmental impacts on the 

surroundings of the building(s) to be 

constructed, including protecting 

environmentally sensitive lands, 

reducing energy use for transportation 

and associated greenhouse gas 

emissions, and orienting the building to 

take advantage of solar heat gains in the 

winter and/or minimize solar heat gains 

in the summer. The proposed rule 

includes energy efficiency consideration 

as a siting priority. 

D. Life-Cycle Cost-Effectiveness 

Section 305 of ECPA, as amended by 

section 109 of the Energy Policy Act of 

2005, mandates the application of 

sustainable design principles to the 

siting, design, and construction of all 

new and replacement buildings when 

life-cycle cost-effective. (42 U.S.C. 

6834(a)(3)(A)(i)(II)) Section 433 of EISA 

further amended section 305 of ECPA to 

apply sustainable design principles to 

certain new Federal buildings and major 

renovations of Federal buildings 

without specific consideration of lifecycle cost-effectiveness. (42 U.S.C. 

6834(a)(3)(D)(i)(III)) For major 

renovations and new buildings that fall 

in the two categories defined in EISA 

(‘‘public buildings’’ requiring a 

prospectus and buildings/renovations 

costing at least $2.5 million), the 

proposed rule would apply to the extent 

practicable. 

Under the proposed rule, for new 

buildings that do not fall into the two 

categories, the sustainability design 

requirements would apply only if the 

requirements are proven to be life-cycle 

cost-effective using the procedures in 10 

CFR part 436 (excluding indoor air 

quality requirements, which are 

mandatory). DOE is proposing that 

Federal agencies would be permitted to 

use one of four methods listed in 10 

CFR part 436 to demonstrate life-cycle 

cost-effectiveness. These methods 

include lower life-cycle costs, positive 

net savings, savings-to-investment ratio 

that is estimated to be greater than one, 

and an adjusted internal rate of return 

that is estimated to be greater than the 

Federal Energy Management Program 

(FEMP) discount rate. The proposed 

rule would only require that sustainable 

design measures that are cost effective 

be done, it would not prohibit measures 

that improve sustainability but cannot 

be shown to be cost effective. 

Defining life-cycle cost as it applies to 

sustainable buildings presents 

challenges. Some of the benefits are 

economically measurable over a finite 

period of time, such as energy and water 

savings. Other benefits may not have an 

economic benefit that can be clearly 

calculated, such as reduced greenhouse 

gases, reduced waste in landfills, 

protection of natural habitat, etc. DOE 

has not attempted to quantify 

externalities related to sustainable 

design, such as the value of wetlands 

preservation. The International 

Organization for Standards (ISO) has 

outlined principles and a framework for 

life cycle assessments for environmental 

management in ISO Standard 14040 that 

provides some guidance. DOE welcomes 

public comments on whether DOE 

should attempt to quantify externalities 

for these types of environmental 

benefits. Also, DOE requests comments 

on which types of sustainability 

objectives should be subject to life cycle 

cost analysis. 

E. Green Building Certification Systems 

Section 433 of EISA added a 

certification system requirement for new 

Federal buildings and renovations that 

are public buildings defined in 40 

U.S.C. 3301, for which the 

Administrator of General Services is 

required to transmit a prospectus to 

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3Letter from Lorita Doan, GSA Administrator to 

Samuel Bodman, Secretary of Energy, dated April 

25, 2008. EXEC–2008–005379. 

4Letter from Wayne Arny, Deputy Under 

Secretary of Defense (Installations and 

Environment), dated May 5, 2009. 

5Fowler, KM and Rauch, EM. 2006. Sustainable 

Building Rating Systems: Summary. PNNL–15858. 

Pacific Northwest National Laboratory. Richland, 

Washington. 

Congress under U.S.C. Title 40, section 

3307, or that are at least $2,500,000 in 

costs adjusted annually for inflation. (42 

U.S.C. 6834(a)(3)(D)(i)(III)) Under that 

requirement, DOE is to ‘‘identify a 

certification system and level for green 

buildings that the Secretary determines 

to be the most likely to encourage a 

comprehensive and environmentallysound approach to certification of green 

buildings.’’ Section 433 of EISA directs 

that the identification of the 

certification system and level shall be 

based on a review of findings prepared 

by the Federal Director of the Office of 

Federal High-Performance Green 

Buildings (within the General Service 

Administration) under section 436(h) of 

EISA and the criteria specified in clause 

(iii), shall identify the highest level the 

Secretary determines is appropriate 

above the minimum level required for 

certification under the system selected, 

and shall achieve results at least 

comparable to the system used by and 

highest level referenced by the General 

Services Administration (GSA) as of the 

date of enactment of EISA. In addition 

to the findings of the Federal Director, 

DOE is to take into consideration— 

(I) The ability and availability of 

assessors and auditors to independently 

verify the criteria and measurement of 

metrics at the scale necessary to 

implement this subparagraph; 

(II) The ability of the applicable 

certification organization to collect and 

reflect public comment; 

(III) The ability of the standard to be 

developed and revised through a 

consensus-based process; 

(IV) An evaluation of the robustness 

of the criteria for a high-performance 

green building, which shall give credit 

for promoting: 

(a) Efficient and sustainable use of 

water, energy, and other natural 

resources; 

(b) Use of renewable energy sources; 

(c) Improved indoor environmental 

quality through enhanced indoor air 

quality, thermal comfort, acoustics, day 

lighting, pollutant source control, and 

use of low-emission materials and 

building system controls; and 

(d) Such other criteria as the Secretary 

determines to be appropriate. 

(V) National recognition within the 

building industry. (42 U.S.C. 

6834(a)(3)(D)(iii)) 

GSA identified a green building 

certification system under section 

436(h) of EISA in a letter to the 

Secretary of Energy.3 GSA stated that 

the U.S. Green Building Council’s 

Leadership in Energy and 

Environmental Design (LEED) rating 

system would meet the criteria in 

section 436(h) of EISA and identified 

the ‘‘Silver’’ level as the minimum level. 

The Department of Defense also 

identified LEED with the Silver level as 

the preferred rating system and level in 

a letter to the Secretary of Energy.4

GSA informed DOE in the letter that 

it evaluated the following five rating 

systems: 

• Building Research Establishment’s 

Environmental Assessment Method 

(BREEAM); 

• Comprehensive Assessment System 

for Building Environmental Efficiency 

(CASBEE); 

• GBTool; 

• Green GlobesTM U.S.; and 

• Leadership in Energy and 

Environmental Design. 

GSA stated that it evaluated each rating 

system’s: 

• Applicability: Whether it is relevant 

to the large scale and complexity of 

Federal buildings. 

• Stability: Whether it has been stable 

over time, so that the evaluation of a 

building’s performance is not subject to 

drastic changes. 

• Objectivity: Whether it measures 

quantifiable aspects of sustainable 

design and its ratings are verified by 

qualified third parties. 

• Availability: Whether it is widely 

used and has broad practitioner 

awareness. 

In its identification, GSA utilized a 

2006 report by Pacific Northwest 

National Laboratory 5 (PNNL) that 

evaluated leading green building rating 

systems. The PNNL report identified the 

five rating systems listed above as 

having the greatest potential of 

addressing GSA needs. The PNNL 

report summarized and reviewed each 

of the five rating systems, but did not 

provide a recommendation on a 

preferred system. 

DOE recognizes that there are 

multiple green building rating systems 

currently available and additional 

systems may be developed. These 

systems have various levels of ratings, 

representing differing degrees of energy 

efficiency and sustainable design. 

Additionally, the existing systems may 

be revised and updated over time. 

As part of a Federal building being 

green-rated, DOE is considering the 

development of requirements to apply 

the continued certification of a building 

as a certified green building. DOE is 

considering a requirement for Federal 

agencies to demonstrate that the energy 

use of a certified green building is 

consistent with the energy use targets 

identified under the green building 

certification program. DOE is 

considering a requirement for a Federal 

agency to demonstrate that the energy 

use, at a minimum, in the first year of 

a building’s green building certification 

is consistent with the energy use 

identified as part of the certification 

process. If the building’s energy use 

exceeded the target energy use 

identified under the green building 

rating system, DOE is considering the 

removal of the green building 

certification. 

Focusing on the energy targets 

identified in a green building rating 

system would be consistent with the 

Guiding Principles MOU, which directs 

the agencies to establish a whole 

building performance target that takes 

into account the intended use, 

occupancy, operations, plug loads, and 

other energy demands, and design. 

Reviewing energy use in the first year 

following construction or renovation 

would help ensure that green-rated 

buildings continue to perform as 

originally specified under the rating. 

DOE is requesting comment on this 

potential regulation. 

The statute does not require DOE to 

identify a specific commercially 

available system, but requires DOE to 

identify a certification system and level 

for green buildings. As stated in the 

statute, DOE believes that the green 

rating of a building must encourage a 

comprehensive and environmentally 

sound approach to building and 

renovation design. Given that systems 

may be further developed, DOE is 

proposing minimum criteria for any 

system that a Federal agency would 

choose to use to green rate a building. 

DOE is proposing criteria for agencies 

to identify green rating systems if an 

agency chooses to green rate a building. 

Under the proposed regulations, if an 

agency were to choose to green rate a 

building the green rating system would 

be required to— 

(1) Enable 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; and 

(3) Be nationally recognized within 

the building industry. 

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Included in the statutory criteria for 

consideration by DOE in identifying 

green building rating systems is the 

evaluation of the robustness of the 

system’s criteria for a high-performance 

green building. DOE considers the 

evaluation of the ‘‘robustness’’ of a green 

building rating system to include 

consideration of its ability to improve 

over time and ensure design 

performance over time. As such, DOE is 

also considering to require that green 

rating systems used by Federal agencies 

are those systems that— 

(1) Are subject to periodic evaluation 

and assessment of the environmental 

and energy benefits that result under the 

rating system; and 

(2) Include a verification system for 

post-occupancy assessment of the rated 

buildings to periodically demonstrate 

continued environmental benefits and 

energy savings. 

DOE understands that existing green 

building rating systems may not meet 

these two additional criteria, but 

understands that several systems are 

moving in a direction consistent with 

these additional criteria. 

Under this proposal, DOE believes 

that agencies would be provided the 

flexibility to choose the green building 

rating system that best fits their needs 

as long as the system meets the criteria 

set in this rulemaking. 

Under today’s proposed rule, the 

minimum level of rating would need to 

be a level that ensures compliance with 

the applicable energy efficiency, water 

use, and sustainable design 

requirements established in regulation. 

DOE requests comments as to whether 

the minimum level should also reflect 

the Guiding Principles MOU and all 

applicable executive orders. 

As indicated above, GSA identified 

LEED Silver as a green rating system 

and level that meets the criteria 

expressly identified in the statute. DOE 

requests comment on other green rating 

systems and associated levels/points 

that also would meet the statutory 

criteria. DOE also requests comments on 

the additional criteria being considered 

by DOE. DOE intends to make a list of 

any green building rating systems 

determined by Federal agencies to meet 

the criteria adopted in the final rule 

available to Federal agencies in order to 

provide guidance. DOE requests 

comment on the proposed criteria and 

the potential for other green rating 

systems to meet the proposed criteria. 

Section 305(a)(3)(D)(v) of ECPA states 

that ‘‘the Secretary may by rule allow 

Federal agencies to develop internal 

certification processes, using certified 

professionals, in lieu of certification by 

the certification entity identified under 

clause (i)(III). The Secretary shall 

include in any such rule guidelines to 

ensure that the certification process 

results in buildings meeting the 

applicable certification system and level 

identified under clause (i)(III). An 

agency employing an internal 

certification process must continue to 

obtain external certification by the 

certification entity identified under 

clause (i)(III) for at least 5 percent of the 

total number of buildings certified 

annually by the agency.’’ Under the 

proposal agencies would be able to 

submit to DOE their own internal 

certification systems for approval by 

DOE. 

III. Reference Resources 

DOE has prepared a list of resources 

to help Federal agencies address the 

principles of sustainable design. The 

Federal Register final rule published on 

December 21, 2007 (71 FR 72565) 

contains reference resources for energy 

efficiency. These resources come in 

many forms (such as design guidance 

and case studies) and in a variety of 

media (such as in printed documents or 

on Web sites). 

Life-Cycle Cost Analysis—U.S. DOE 

Federal Energy Management Program 

http://www.access.gpo.gov/nara/cfr/ 

waisidx_04/10cfr436_04.html 

The life-cycle cost analysis rules 

promulgated in 10 CFR part 436 Subpart 

A, ‘‘Methodology and Procedures for 

Life Cycle Cost Analysis,’’ conform to 

requirements in the Federal Energy 

Management Improvement Act of 1988 

and subsequent energy conservation 

legislation. The life-cycle cost guidance, 

discount rates, and energy price 

projections are determined annually by 

FEMP and the Energy Information 

Administration, and published in the 

Annual Supplement to The National 

Institute of Standards and Technology 

Handbook 135: ‘‘Energy Price Indices 

and Discount Factors for Life-Cycle Cost 

Analysis.’’ FEMP also provides guidance 

on the LCC requirements of Executive 

Order 13423 at http://

www1.eere.energy.gov/femp/program/

lifecycle.html and http://www1.eere.

energy.gov/femp/information/ 

download_blcc.html. Life cycle cost 

rules also refer to OMB Circular A–4 

and A–94, which may be found at the 

following links: 

Circular A–4—www.whitehouse.gov/ 

OMB/Circulars/a004/a-4.pdf. 

Circular A–94—www.whitehouse.gov/ 

omb/circulars/a094/a094.html. 

‘‘Whole Building Design Guide— 

National Institute of Building Sciences’’ 

http://www.wbdg.org 

This is a portal providing one-stop 

access to up-to-date information on a 

wide range of building-related guidance, 

criteria and technology from a whole 

buildings perspective. Specific guidance 

for implementing the Guiding Principles 

for sustainable buildings is provided at 

http://www.fedcenter.gov/Documents/ 

index.cfm?id=11130&pge_prg_id=

19319&pge_id=1860. 

American Society of Heating, 

Refrigerating and Air-Conditioning 

Engineers (ASHRAE) http:// 

spc189.ashraepcs.org/ 

ASHRAE has issued Standard 189.1, 

‘‘Standard for the Design of HighPerformance, Green Buildings Except 

Low-Rise Residential Buildings.’’ 

‘‘Building America’’—U.S. Department 

of Energy http://www.eere.energy.gov/ 

buildings/building_america/ 

Building America is a private/public 

partnership that develops energy 

solutions for new and existing homes. 

The Building America project combines 

the knowledge and resources of industry 

leaders with DOE’s technical 

capabilities. Together, they act as a 

catalyst for change in the home-building 

industry. 

Energy & Environmental Building 

Association (EEBA) http:// 

www.eeba.org/ 

EEBA’s mission is to provide 

education and resources to transform 

the residential design, development and 

construction industries to profitably 

deliver energy efficient and 

environmentally responsible buildings 

and communities. 

The Partnership for Advancing 

Technology in Housing (PATH)—U.S. 

Department of Housing and Urban 

Development http://www.pathnet.org/ 

PATH is dedicated to accelerating the 

development and use of technologies 

that radically improve the quality, 

durability, energy efficiency, 

environmental performance, and 

affordability of America’s housing. 

PATH is a voluntary partnership 

between leaders of the homebuilding, 

product manufacturing, insurance, and 

financial industries and representatives 

of Federal agencies concerned with 

housing. 

WaterSense Program http:// 

www.epa.gov/watersense 

Launched in 2006, WaterSense is an 

EPA-sponsored partnership program 

that seeks to protect the future of our 

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29940 Federal Register / Vol. 75, No. 103 / Friday, May 28, 2010 / Proposed Rules 

nation’s water supply by promoting 

water efficiency and enhancing the 

market for water-efficient products, 

programs, and practices. WaterSense 

helps consumers identify water-efficient 

products and programs that meet 

WaterSense water efficiency and 

performance criteria. Products carrying 

the WaterSense label perform well, help 

save money, and encourage innovation 

in manufacturing. 

Federal Energy Management Program 

http://www1.eere.energy.gov/femp/ 

program/sustainable_resources.html 

Executive Order 13514—Federal 

Leadership in Environmental, Energy, 

and Economic Performance http:// 

www1.eere.energy.gov/femp/ 

regulations/eo13514.html 

This executive order references the 

Guiding Principles which are 

incorporated into this rulemaking. 

IV. Regulatory Analysis 

A. Review Under Executive Order 

12866, ‘‘Regulatory Planning and 

Review’’ 

Today’s notice of public rulemaking is 

a significant regulatory action under 

section 3(f)(1) of Executive Order 12866, 

‘‘Regulatory Planning and Review,’’ 58 

FR 51735 (October 4, 1993). 

Accordingly, today’s action was 

reviewed by the Office of Information 

and Regulatory Affairs (OIRA) in the 

Office of Management and Budget 

(OMB). 

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. 

Today’s proposed rule would amend 

standards for the design and 

construction of new Federal buildings 

and major renovations of Federal 

buildings. Today’s rulemaking is related 

to public property, and therefore, is not 

subject to any legal requirement to 

publish a general notice of proposed 

rulemaking. The Regulatory Flexibility 

Act does not apply. 

C. Review Under the Paperwork 

Reduction Act of 1995 

This rulemaking will impose no new 

information or record keeping 

requirements. Accordingly, 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 

The Department prepared a draft 

Environmental Assessment (EA) (DOE/ 

EA–1463) 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 draft EA addresses the potential 

incremental environmental effects 

attributable to the application of the 

proposed rules. The draft EA has been 

added to the docket for this rulemaking. 

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 notice of 

proposed rulemaking 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. The 

proposed rulemaking would establish 

requirements for Federal buildings only. 

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 notice 

of proposed rulemaking 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 

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 1 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 

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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 notice of 

proposed rulemaking contains neither 

an intergovernmental mandate nor a 

mandate that may result in the 

expenditure of $100 million or more in 

any year, 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 

notice of proposed rulemaking 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 notice of proposed rulemaking 

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 notice of proposed 

rulemaking 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 notice of proposed rulemaking 

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. 

V. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of today’s notice of 

proposed rulemaking. 

List of Subjects in 10 CFR Parts 433 and 

435 

Buildings and facilities, Energy 

conservation, Engineers, Federal 

buildings and facilities, Housing, 

Sustainable design. 

Issued in Washington, DC, on April 13, 

2010. 

Cathy Zoi, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy. 

For the reasons set forth in the 

preamble, DOE is proposing to amend 

chapter II of title 10 of the Code of 

Federal Regulations as set forth below: 

PART 433—ENERGY EFFICIENCY AND 

SUSTAINABLE DESIGN STANDARDS 

FOR NEW FEDERAL COMMERCIAL 

AND MULTI-FAMILY HIGH-RISE 

RESIDENTIAL BUILDINGS 

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. 

2. The heading for part 433 is revised 

to read as set forth above. 

3. Revise § 433.1 to read as follows: 

§ 433.1 Purpose and scope. 

This part establishes an energy 

efficiency performance and sustainable 

design standard for the new Federal 

commercial and multi-family high-rise 

residential buildings, for which design 

for construction began on or after 

January 3, 2007 (except as otherwise 

indicated: Solar water heating, 

sustainable design, and green building 

certification requirements are applicable 

1 year after publication of the final rule), 

as required by section 305(a) of the 

Energy Conservation and Production 

Act, as amended (42 U.S.C. 6834(a)). 

Additionally, this part establishes 

certain requirements applicable to major 

renovations of Federal commercial and 

multi-family high-rise residential 

buildings, as indicated. For renovated 

buildings, those requirements apply 

only to the portions of the building or 

building systems that are being 

renovated and to the extent that the 

scope of the renovation permits 

compliance with the applicable 

requirements in this rule. Unaltered 

portions of the building or building 

systems are not required to comply with 

this rule. 

4. Section 433.2 is amended by: 

a. Adding in alphabetical order, 

definitions of ‘‘Biobased,’’ 

‘‘Commissioning,’’ ‘‘Critical visual tasks,’’ 

‘‘Daylight factor,’’ ‘‘EPA-designated 

product,’’ ‘‘Major renovation,’’ 

‘‘Postconsumer material,’’ ‘‘Potable 

water’’ and ‘‘Rapidly renewable,’’ ‘‘To the 

extent practicable’’ and ‘‘USDAdesignated product;’’ and 

b. Revising the definitions of ‘‘Lifecycle cost,’’ ‘‘Life-cycle cost-effective,’’ 

and ‘‘New Federal building.’’ 

The additions and revisions read as 

follows: 

§ 433.2 Definitions. 

* * * * * 

Biobased means a commercial or 

industrial product (other than food or 

feed) that is composed, in whole or in 

significant part, of biological products, 

including renewable agricultural 

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materials (e.g., plant, animal, and 

marine materials) and forestry materials. 

* * * * * 

Commissioning means a quality 

focused process for enhancing the 

delivery of a project. The process 

focuses upon verifying and 

documenting that the facility and all of 

its systems and assemblies are planned, 

designed, installed, tested, operated, 

and maintained to meet the owner’s or 

occupant’s project requirements. 

Critical visual tasks means office/ 

classroom type work which involves 

reading printed text, entering data into 

computers, writing and drawing. 

Daylight factor means the illuminance 

due to daylight on the indoor working 

plane divided by the illuminance 

outdoors on an unobstructed horizontal 

plane. 

* * * * * 

EPA-designated product means a 

product listed by EPA as a designated 

product under EPA’s comprehensive 

procurement guidelines established 

under section 6002 of the Solid Waste 

Disposal Act. (42 U.S.C. 6962) 

* * * * * 

Life-cycle cost means the total cost of 

owning, operating and maintaining a 

building, building systems, or building 

components, including any mechanical 

systems, service water heating systems 

and electric power and lighting systems 

located on the building site and 

supporting the building over its useful 

life (including its fuel and water, 

energy, labor, and replacement 

components), determined on the basis of 

a systematic evaluation and comparison 

of alternative building systems, except 

that in the case of leased buildings, the 

life cycle cost shall be calculated over 

the effective remaining term of the lease. 

Life-cycle cost-effective means that the 

building, energy or water systems in the 

building, components of those energy or 

water systems, and conservation 

measures as defined in 10 CFR 436.11 

in the proposed building or major 

renovation have a lower life-cycle cost 

than the life-cycle costs of the 

corresponding systems and measures in 

the baseline building, as described by 10 

CFR 436.19, or has a positive estimated 

net savings, as described by 10 CFR 

436.20; or has a savings-to-investment 

ratio estimated to be greater than one, as 

described by 10 CFR 436.21; or has an 

adjusted internal rate of return, as 

described by 10 CFR 436.22, that is 

estimated to be greater than the FEMP 

discount rate. 

* * * * * 

Major renovation means changes to a 

building that provide significant 

opportunities for substantial 

improvement in energy efficiency. This 

may include but is not limited to 

replacement of the HVAC system, the 

lighting system, the building envelope, 

and other components of the building 

that have a major impact on energy 

usage. Major renovation also includes a 

renovation of any kind which has a cost 

exceeding 25 percent of the replacement 

value of the building. 

New Federal building means any new 

building (including a complete 

replacement of an existing building 

from the foundation up) 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. 

Postconsumer material means a 

material or finished product that has 

served its intended use and has been 

discarded for disposal or recovery, 

having completed its life as a consumer 

item. 

Potable water means water from 

public drinking water systems or from 

natural freshwater sources such as lakes, 

streams, and aquifers where water from 

such natural sources would or could 

meet drinking water standards. 

* * * * * 

Rapidly renewable refers to materials 

and products made from plants that are 

harvested within a 10-year cycle. 

* * * * * 

To the extent practicable means 

wherever feasible, taking into 

consideration health and life safety, key 

project design and function objectives, 

agency mission, product or material 

availability, net increases in life cycle 

cost (if significant), and total funding 

available. 

USDA-designated product means a 

product listed by USDA as a designated 

product under USDA’s biobased 

procurement program established 

Section 9002 of the Farm Security and 

Rural Investment Act of 2008. (7 U.S.C. 

8102) 

5. Add in § 433.4 a new paragraph (d) 

to read as follows: 

§ 433.4 Energy efficiency performance 

standard. 

(d) Solar hot water. (1) All Federal 

agencies shall design new Federal 

commercial and multi-family high-rise 

residential buildings, for which design 

for construction began 1 year after 

publication of the final rule, such that 

at least 30 percent of the hot water 

demand is provided through the 

installation of solar hot water heaters, to 

the extent life-cycle cost-effective as 

compared to other reasonably available 

technologies. 

(2) Federal buildings undergoing a 

major renovation, for which design for 

renovation began 1 year after 

publication of the final rule, must 

provide at least 30 percent of the hot 

water demand for the portion of the 

building that is being renovated through 

the installation of solar hot water 

heaters, to the extent life-cycle costeffective as compared to other 

reasonably available technologies. 

6. Add § 433.6 to read as follows: 

§ 433.6 Sustainable design principles for 

siting, design and construction. 

(a) This section applies to new 

Federal commercial and multi-family 

high-rise residential buildings and 

major renovations to Federal 

commercial and multi-family high-rise 

residential buildings for which design 

for construction began 1 year after 

publication of the final rule. 

(b) All Federal agencies shall design 

new Federal commercial and multifamily high-rise residential buildings 

and major renovations to Federal 

commercial and multi-family high-rise 

residential buildings to meet the 

requirements of paragraphs (e) and (f) of 

this section to the extent practicable, 

and paragraph (g) of this section if: 

(1) The subject building is a public 

building as defined in 40 U.S.C. 3301 

and for which transmittal of a 

prospectus to Congress is required 

under 40 U.S.C. 3307; or 

(2) The cost of the building or major 

renovation is at least $2,500,000 (in 

2007 dollars, adjusted for inflation). 

(c) All Federal agencies shall design 

new Federal commercial and multifamily high-rise residential buildings 

other than those that meet the criteria in 

paragraph (b) of this section to comply 

with the requirements in paragraph (f) 

of this section to the extent the 

requirements are life-cycle cost-effective 

and paragraph (g) of this section. 

(d) The requirements of this section 

are not applicable to major renovations 

that do not meet the criteria in 

paragraph (b) of this section. 

(e) (1) Integrated design. Federal 

agencies must use a planning and 

design process that: 

(i) Initiates and maintains an 

integrated project team as described in 

the National Institute of Building 

Science ‘‘Whole Building Design Guide’’ 

in all stages of a project’s planning and 

delivery. 

(ii) Integrates the use of OMB’s 

Circular A–11, Section 7, Exhibit 300: 

Capital Asset Plan and Business Case 

Summary. 

(iii) Establishes performance 

specifications consistent with this part 

for siting, energy, water, materials, and 

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indoor environmental quality along 

with other comprehensive design goals 

and ensures incorporation of these goals 

throughout the design and life-cycle of 

the building. 

(iv) Considers all stages of the 

building’s lifecycle, including 

construction, occupancy, and 

deconstruction. 

(2) Commissioning. Federal agencies 

must employ commissioning practices 

to verify performance of building 

components and systems and help 

ensure that design requirements are met. 

Commissioning practices must include: 

(i) An experienced commissioning 

provider; 

(ii) Inclusion of commissioning 

requirements in construction 

documents; 

(iii) A commissioning plan; 

(iv) Verification of the installation, 

performance, and operation of systems 

to be commissioned; and 

(v) A commissioning report. 

(f) (1) Renewable energy. Federal 

agencies must implement renewable 

energy generation projects on agency 

property for agency use, when lifecycle 

cost effective. 

(2) Indoor water. Federal agencies 

must employ strategies that in aggregate 

use a minimum of 20 percent less 

potable water than the indoor water use 

baseline calculated for the building. If 

baseline data is not available, the 

baseline for the building shall be 

calculated from the Federal water use 

indices issued by the DOE Federal 

Energy Management Program for a 

building of the same building type as 

the proposed building. 

(i) Water meters must be installed to 

allow for the management of water use 

during occupancy. 

(ii) Harvested rainwater, treated 

wastewater, and air conditioner 

condensate shall be used to the extent 

practicable for non-potable use and 

potable use, but shall not be used to 

meet the 20 percent reduction in potable 

water usage. 

(3) Outdoor water. Federal agencies 

must use water efficient landscape and 

irrigation strategies, such as water reuse, 

recycling, and the use of harvested 

rainwater, to reduce outdoor potable 

water consumption by a minimum of 50 

percent over the outdoor water baseline 

calculated for the building. If baseline 

data is not available, the baseline for the 

building shall be calculated from the 

Federal water use indices issued by the 

DOE Federal Energy Management 

Program for a building of the same 

building type as the proposed building. 

(4) Water-efficient products. Use of 

WaterSense labeled products, or 

products with comparable water 

efficiency, for product categories labeled 

by WaterSense is required. 

(5) Moisture control. Federal agencies 

shall establish and implement a 

moisture control strategy for controlling 

moisture flows and condensation to 

prevent building damage, minimize 

mold contamination, and reduce health 

risks related to moisture. 

(6) Day lighting. (i) Federal agencies 

must achieve a minimum daylight factor 

of 2 percent (excluding all direct 

sunlight penetration) in 75 percent of all 

space occupied in new buildings and 

major renovations for critical visual 

tasks. 

(ii) Federal agencies should provide 

automatic dimming controls or 

accessible manual lighting controls, and 

appropriate glare control. 

(7) Low-emitting materials. Federal 

agencies must use materials and 

products with low pollutant emissions, 

including composite wood products, 

adhesives, sealants, interior paints and 

finishes, carpet systems, and 

furnishings. 

(8) Indoor air quality during 

construction. (i) Federal agencies shall 

follow the appropriate recommended 

approach of the Sheet Metal and Air 

Conditioning Contractor’s National 

Association ‘‘Indoor Air Quality 

Guidelines for Occupied Buildings 

under Construction, 2007,’’ 

(incorporated by reference, see § 433.3) 

(ii) After construction and prior to 

occupancy, Federal agencies shall 

conduct a minimum 72-hour flush-out 

with maximum outdoor air consistent 

with achieving relative humidity no 

greater than 60 percent. 

(iii) After occupancy, Federal agencies 

shall continue flush-out as necessary to 

minimize exposure to contaminants 

from new building materials. 

(iv) As an alternative to the 

requirements in paragraphs (f)(8)(i), (ii), 

and (iii) of this section, demonstrate that 

the contaminant maximum 

concentration levels listed in the table 

below are not exceeded in the 

completed building: 

Contaminant Maximum concentration 

Formaldehyde ........................................................................................... 27 parts per billion. 

Particulates (PM10) .................................................................................. 50 micrograms per cubic meter. 

Total volatile organic compounds (TVOCs) ............................................. 500 micrograms per cubic meter. 

4-Phenylcyclohexene (4-PCH) * ............................................................... 6.5 micrograms per cubic meter. 

Carbon monoxide (CO) ............................................................................ 9 parts per million and no greater than 2 parts per million above outdoor levels. 

* This test is only required if carpets and fabrics with styrene butadiene rubber (SBR) latex backing are installed as part of the base building 

systems. 

(9) Materials. (i) Recycled content. 

Selection of construction materials and 

products shall reflect a preference for 

materials and products containing 

recycled materials or made from 

recycled materials such that the postconsumer recycled content, plus onehalf of the pre-consumer recycled 

content, shall constitute a minimum of 

10 percent, based on cost or 

replacement value, of the total materials 

in the building project. To achieve the 

10 percent requirement, the following 

practices may be employed: 

(A) For product categories that are 

designated in EPA’s Comprehensive 

Procurement Guidelines (CPG), 

products meeting or exceeding EPA’s 

recycled content recommendations shall 

be used. 

(B) The reuse of lumber, and masonry 

units, such as brick, tile, stone and 

concrete block, conforming to the 

requirements specified in the 

International Building Code shall be 

recognized as recycled/recovered 

content. 

(C) Utilize recycled-content 

landscaping materials (e.g., shredded 

wood, landscape trimmings, compost, 

crushed concrete) 

(ii) Biobased content. (A) Per Section 

9002 of the Farm Security and Rural 

Investment Act for USDA designated 

products, use products with the highest 

content level per USDA’s biobased 

content recommendations as specified 

in the USDA Biopreferred Program. 

(B) For other products, specify 

biobased products made from rapidly 

renewable resources and certified 

sustainable wood products. 

(iii) Environmentally preferable 

products. Federal agencies must use 

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products that have a lesser or reduced 

effect on human health and the 

environment over their life-cycle when 

compared with competing products or 

services that serve the same purpose. 

Federal agencies should consider the 

number of standards and ecolabels are 

available in the marketplace to assist 

specifiers in making environmentally 

preferable decisions. Consult the EPA 

‘‘Federal Green Construction Guide for 

Specifiers’’ for recommendations. 

(iv) Waste and materials 

management. (A) Buildings shall plan 

for recycling of specific materials, such 

as paper, metals, plastics, cardboard, 

and electronics (and associated 

products). 

(B) Adequate space, equipment, and 

transport accommodations for recycling 

must be included in the building design. 

(C) During a project’s planning stage, 

local recycling and salvage operations 

that could process site-related 

construction and demolition materials 

must be identified. If such operations 

are available locally, materials must be 

recycled or salvaged. 

(v) At least 50 percent of nonhazardous and non-radioactive 

construction, demolition and land 

clearing materials, excluding soil, must 

be recycled or salvaged. 

(vi) Ozone depleting compounds. The 

use of ozone depleting compounds 

during and after construction must be 

eliminated where alternative 

environmentally preferable products are 

available. 

(10) Siting. (i) The site selection for 

Federal building construction shall 

comply with all applicable Federal 

rules, Executive Orders, and other 

Federal actions governing 

environmental issues impacted by 

Federal building construction. 

(ii) Site selection must prioritize: 

(A) Building orientation to maximize 

energy efficiency of the building, 

(B) Locations in central business 

districts and rural town center, 

(C) Sites well served by transit, 

(D) Site design elements that ensure 

safe and convenient pedestrian access, 

(E) Consideration of transit access and 

proximity to housing affordable to a 

wide range of Federal employees, 

(F) Adaptive reuse or renovation of 

buildings, 

(G) Avoiding development of 

sensitive land resources (such as 

greenfields and USDA Prime Farmland), 

and 

(H) Evaluation of parking 

management strategies. 

(g)(1) Ventilation and thermal 

comfort. Federal agencies shall design 

new buildings and major renovations to 

meet the requirements of ASHRAE 55 

(incorporated by reference; see § 433.3), 

including continuous humidity control 

within established ranges per climate 

zone, and ASHRAE 62.1 (incorporated 

by reference; see § 433.3). 

(2) Environmental tobacco smoke 

control. Federal agencies shall 

implement a policy and post signage 

indicating that smoking is prohibited 

within the building and within 25 feet 

of all building entrances, operable 

windows, and building ventilation 

intakes during building occupancy. 

Agency policy shall be consistent with 

all applicable Federal rules, Executive 

Orders, and other relevant Federal 

actions. 

7. Add § 433.7 to read as follows: 

§ 433.7 Water conservation. 

If water is used to achieve energy 

efficiency, water conservation 

technologies must be applied to the 

extent practicable that the technologies 

are life-cycle cost-effective. 

8. Revise § 433.8 to read as follows: 

§ 433.8 Life-cycle costing. 

For the purpose of this section, 

evaluation of whether compliance with 

a requirement is life-cycle cost-effective 

shall be considered on the basis of 

individual requirements, not the entire 

rule. If synergies exist that make 

combinations of requirements life-cycle 

cost-effective where individual 

requirements are not, then these 

combination of requirements shall be 

complied with. If requirements 

containing numerical savings values are 

not life-cycle cost-effective, the design 

of the proposed building shall 

incorporate as much savings as is lifecycle cost-effective. 

9. Add a new § 433.9 to read as 

follows: 

§ 433.9 Green building certification. 

(a) Green building certification 

system. If a new Federal building or 

Federal building undergoing a major 

renovation, meeting the criteria in 

§ 433.6(b) for which design for 

construction began 1 year after 

publication of the final rule is to be 

certified under a green building 

certification system, the system under 

which the building is certified must— 

(1) Have the ability for 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 periodically demonstrate 

continued environmental benefits and 

energy savings. 

(b) Certification level. If a new Federal 

building or Federal building undergoing 

a major renovation meeting either of the 

two criteria in § 433.6(b) is to be 

certified under a green building 

certification system, the building must 

be certified to a level that— 

(1) Ensures compliance with— 

(i) The energy efficiency performance 

standards of this part; and 

(ii) Water use requirements of this 

part; and 

(iii) Sustainable design requirements 

of this part. 

(2) Promotes the high performance 

sustainable building guidelines 

referenced in E. O. 13423 

‘‘Strengthening Federal Environmental, 

Energy, and Transportation 

Management.’’ 

(c) Federal agencies may request DOE 

approval of internal certification 

processes, using certified professionals, 

in lieu of certification by a system 

meeting the criteria in paragraph (a) of 

this section. Requests for approval must 

be sent to the Office of the Federal 

Energy Management Program in DOE. 

Submissions should demonstrate how 

the internal certification process would 

ensure compliance with all applicable 

regulations under this Part. The Office 

of the Federal Energy Management 

Program may request additional 

information as necessary. The Office of 

Federal Energy Management will make 

a determination within 120 days of a 

completed submission. An agency may 

then employ the approved internal 

certification process but must obtain 

external certification by a system 

meeting the criteria in paragraph (a) of 

this section for at least 5 percent of the 

total number of buildings certified 

annually by the agency. 

PART 435—ENERGY EFFICIENCY AND 

SUSTAINABLE DESIGN STANDARDS 

FOR NEW FEDERAL LOW-RISE 

RESIDENTIAL BUILDINGS 

10. The authority citation for part 435 

continues to read as follows: 

Authority: 42 U.S.C. 6831–6832, 6834– 

6835; 42 U.S.C. 8253–54; 42 U.S.C. 7101 et 

seq. 

11. The heading for part 435 is revised 

to read as set forth above. 

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12. Revise § 435.1 to read as follows: 

§ 435.1 Purpose and scope. 

This part establishes an energy 

efficiency performance and sustainable 

design standard for the new Federal 

low-rise residential buildings, for which 

design for construction began on or after 

January 3, 2007 (except as otherwise 

indicated: solar water heating, 

sustainable design, and green building 

certification requirements are applicable 

1 year after publication of the final rule), 

as required by section 305(a) of the 

Energy Conservation and Production 

Act, as amended (42 U.S.C. 6834(a)). 

Additionally, this Part establishes 

certain requirements applicable to major 

renovations of Federal low-rise 

buildings, as indicating in the regulatory 

text. For renovated buildings, those 

requirements apply only to the portions 

of the building or building systems that 

are being renovated and to the extent 

that the scope of the renovation permits 

compliance with the applicable 

requirements in this rule. Unaltered 

portions of the building or building 

systems are not required to comply with 

this rule. 

13. Section 435.2 is amended by: 

a. Adding in alphabetical order, the 

definitions ‘‘ASHRAE,’’ ‘‘Biobased,’’ 

‘‘Commissioning,’’ ‘‘Critical visual tasks,’’ 

‘‘Daylight factor,’’ ‘‘EPA-designated 

product,’’ ‘‘High radon potential,’’ ‘‘Major 

renovation,’’ ‘‘Post consumer material,’’ 

‘‘Potable water,’’ ‘‘Rapidly renewable,’’ 

‘‘To the extent practicable’’ and ‘‘USDAdesignated product;’’ and 

b. Revising the definitions of ‘‘Lifecycle cost,’’ Life-cycle cost-effective,’’ 

and ‘‘New Federal building.’’ 

The additions and revisions read as 

follows: 

§ 435.2 Definitions. 

ASHRAE means the American Society 

of Heating, Refrigerating and AirConditioning Engineers. 

* * * * * 

Biobased means a commercial or 

industrial product (other than food or 

feed) that is composed, in whole or in 

significant part, of biological products, 

including renewable agricultural 

materials (e.g., plant, animal, and 

marine materials) and forestry materials. 

Commissioning means a qualityfocused process for enhancing the 

delivery of a project. The process 

focuses upon verifying and 

documenting that the facility and all of 

its systems and assemblies are planned, 

designed, installed, tested, operated, 

and maintained to meet the owner’s or 

occupant’s project requirements. 

Critical visual tasks means office/ 

classroom type work which involves 

reading printed text, entering data into 

computers, writing and drawing. 

Daylight factor means the illuminance 

due to daylight on the indoor working 

plane divided by the illuminance 

outdoors on an unobstructed horizontal 

plane. 

* * * * * 

EPA-designated product means a 

product listed by EPA as a designated 

product under EPA’s comprehensive 

procurement guidelines established 

under Section 6002 of the Solid Waste 

Disposal Act. (42 U.S.C. 6962) 

* * * * * 

High radon potential means locations 

that have a predicted average indoor 

radon screening level greater than 4 pCi/ 

L (picocuries per liter). For locations 

within the United States, these are 

shown on the map at: http:// 

www.epa.gov/radon/zonemap.html. 

* * * * * 

Life-cycle cost means the total cost of 

owning, operating and maintaining a 

building, building systems, or building 

components, including any mechanical 

systems, service water heating systems 

and electric power and lighting systems 

located on the building site and 

supporting the building over its useful 

life (including its fuel and water, 

energy, labor, and replacement 

components), determined on the basis of 

a systematic evaluation and comparison 

of alternative building systems, except 

that in the case of leased buildings, the 

life-cycle cost shall be calculated over 

the effective remaining term of the lease. 

Life-cycle cost-effective means that the 

building, energy or water systems in the 

building, components of those energy or 

water systems, and conservation 

measures as defined in 10 CFR 436.11 

in the proposed building or major 

renovation have a lower life-cycle cost 

than the life-cycle costs of the 

corresponding systems and measures in 

the baseline building, as described by 10 

CFR 436.19, or has a positive estimated 

net savings, as described by 10 CFR 

436.20; or has a savings-to-investment 

ratio estimated to be greater than one, as 

described by 10 CFR 436.21; or has an 

adjusted internal rate of return, as 

described by 10 CFR 436.22, that is 

estimated to be greater than the FEMP 

discount rate. 

* * * * * 

Major renovation means changes to a 

building that provide significant 

opportunities for substantial 

improvement in energy efficiency. This 

may include but is not limited to 

replacement of the HVAC system, the 

lighting system, the building envelope, 

and other components of the building 

that have a major impact on energy 

usage. Major renovation also includes a 

renovation of any kind which has a cost 

exceeding 25 percent of the replacement 

value of the building. 

New Federal building means any new 

building (including a complete 

replacement of an existing building 

from the foundation up) 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. 

Postconsumer material means a 

material or finished product that has 

served its intended use and has been 

discarded for disposal or recovery, 

having completed its life as a consumer 

item. 

Potable water means water from 

public drinking water systems or from 

natural freshwater sources such as lakes, 

streams, and aquifers where water from 

such natural sources would or could 

meet drinking water standards. 

* * * * * 

Rapidly renewable refers to materials 

and products made from plants that are 

harvested within a 10-year cycle. 

To the extent practicable means 

wherever feasible, taking into 

consideration health and life safety, key 

project design and function objectives, 

agency mission, product or material 

availability, net increases in life-cycle 

cost (if significant), and total funding 

available. 

USDA-designated product means a 

product listed by USDA as a designated 

product under USDA’s biobased 

procurement program established 

Section 9002 of the Farm Security and 

Rural Investment Act of 2008. (7 U.S.C. 

8102) 

14. Add in § 435.4 a new paragraph 

(d) to read as follows: 

§ 435.4 Energy efficiency performance 

standard. 

* * * * * 

(d) Solar hot water. (1) All Federal 

agencies shall design new Federal lowrise residential buildings, for which 

design for construction began 1 year 

after publication of the final rule, such 

that at least 30 percent of the hot water 

demand is provided through the 

installation of solar hot water heaters, to 

the extent life-cycle cost-effective as 

compared to other reasonably available 

technologies. 

(2) Federal buildings undergoing a 

major renovation, for which design for 

renovation began 1 year after 

publication of the final rule, must 

provide at least 30 percent of the hot 

water demand for the portion of the 

building that is being renovated through 

the installation of solar hot water 

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29946 Federal Register / Vol. 75, No. 103 / Friday, May 28, 2010 / Proposed Rules 

heaters, to the extent life-cycle costeffective as compared to other 

reasonably available technologies. 

15. Add § 435.6 to read as follows: 

§ 435.6 Sustainable design principles for 

siting, design and construction. 

(a) This section applies to new 

Federal low-rise residential buildings 

and major renovations to Federal lowrise residential buildings for which 

design for construction began 1 year 

after publication of the final rule. 

(b) All Federal agencies shall design 

new Federal low-rise residential 

buildings and major renovations to 

Federal low-rise residential buildings to 

meet the requirements of paragraphs (e) 

and (f) of this section to the extent 

practicable, and paragraph (g) of this 

section if: 

(1) The subject building is a public 

building as defined in 40 U.S.C. 3301 

and for which transmittal of a 

prospectus to Congress is required 

under 40 U.S.C. 3307; or 

(2) The cost of the building or major 

renovation is at least $2,500,000 (in 

2007 dollars, adjusted for inflation). 

(c) All Federal agencies shall design 

new Federal low-rise residential 

buildings other than those that meet the 

criteria in paragraph (b) of this section 

to comply with the requirements in 

paragraphs (f) of this section to the 

extent the requirements are life-cycle 

cost-effective and paragraph (g) of this 

section. 

(d) The requirements of this section 

are not applicable to major renovations 

that do not meet the criteria in 

paragraph (b) of this section. 

(e)(1) Integrated design. Federal 

agencies must use a planning and 

design process that: 

(i) Initiates and maintains an 

integrated project team as described on 

the National Institute of Building 

Science ‘‘Whole Building Design Guide’’ 

in all stages of a project’s planning and 

delivery; 

(ii) Integrates the use of OMB’s 

Circular A–11, Section 7, Exhibit 300: 

‘‘Capital Asset Plan and Business Case 

Summary’’; 

(iii) Establishes performance 

specifications consistent with this Part 

for siting, energy, water, materials, and 

indoor environmental quality along 

with other comprehensive design goals 

and ensures incorporation of these goals 

throughout the design and life-cycle of 

the building; and 

(iv) Considers all stages of the 

building’s lifecycle, including 

construction, occupancy, and 

deconstruction. 

(2) Commissioning. Federal agencies 

must employ commissioning practices 

to verify performance of building 

components and systems and help 

ensure that design requirements are met. 

Commissioning practices must include: 

(i) An experienced commissioning 

provider, 

(ii) Inclusion of commissioning 

requirements in construction 

documents, 

(iii) A commissioning plan, 

(iv) Verification of the installation, 

performance, and operation of systems 

to be commissioned, and 

(v) A commissioning report. 

(f)(1) Renewable energy. Federal 

agencies must implement renewable 

energy generation projects on agency 

property for agency use, when life-cycle 

cost-effective. 

(2) Indoor water. Federal agencies 

must employ strategies that in aggregate 

use a minimum of 20 percent less 

potable water than the indoor water use 

baseline calculated for the building. If 

baseline data is not available, the 

baseline for the building shall be 

calculated from the Federal water use 

indices issued by the DOE Federal 

Energy Management Program for a 

building of the same building type as 

the proposed building. 

(i) Water meters must be installed to 

allow for the management of water use 

during occupancy. 

(ii) Harvested rainwater, treated 

wastewater, and air conditioner 

condensate shall be used for nonpotable 

use and potable use, but shall not be 

used to meet the 20 percent reduction 

in potable water usage. 

(3) Outdoor water. Federal agencies 

must use water efficient landscape and 

irrigation strategies, such as water reuse, 

recycling, and the use of harvested 

rainwater, to reduce outdoor potable 

water consumption by a minimum of 50 

percent over the outdoor water baseline 

calculated for the building. If baseline 

data is not available, the baseline for the 

building shall be calculated from the 

Federal water use indices issued by the 

DOE Federal Energy Management 

Program for a building of the same 

building type as the proposed building. 

(4) Water-efficient products. Use of 

WaterSense labeled products, or 

products with comparable water 

efficiency, for product categories labeled 

by WaterSense is required. 

(5) Moisture control. Federal agencies 

shall establish and implement a 

moisture control strategy for controlling 

moisture flows and condensation to 

prevent building damage, minimize 

mold contamination, and reduce health 

risks related to moisture. 

(6) Day lighting. (i) Federal agencies 

must achieve a minimum daylight factor 

of 2 percent (excluding all direct 

sunlight penetration) in 75 percent of all 

space occupied in new buildings and 

major renovations for critical visual 

tasks. 

(ii) Federal agencies should provide 

automatic dimming controls or 

accessible manual lighting controls, and 

appropriate glare control. 

(7) Low-emitting materials. Federal 

agencies must use materials and 

products with low pollutant emissions, 

including composite wood products, 

adhesives, sealants, interior paints and 

finishes, carpet systems, and 

furnishings. 

(8) Materials. (i) Recycled content. 

Selection of construction materials and 

products shall reflect a preference for 

materials and products containing 

recycled materials or made from 

recycled materials such that the postconsumer recycled content, plus one 

half of the pre-consumer recycled 

content, shall constitute a minimum of 

10 percent, based on cost or 

replacement value, of the total materials 

in the building project. To achieve the 

10 percent requirement, the following 

practices may be employed: 

(A) For product categories that are 

designated in EPA’s Comprehensive 

Procurement Guidelines (CPG), 

products meeting or exceeding EPA’s 

recycled content recommendations shall 

be used. 

(B) The reuse of lumber, masonry 

units, such as brick, tile, stone and 

concrete block, conforming to the 

requirements specified in the 

International Building Code shall be 

recognized as recycled/recovered 

content. 

(C) Utilize recycled-content 

landscaping materials (e.g., shredded 

wood, landscape trimmings, compost, 

crushed concrete). 

(ii) Biobased content. (A) Per Section 

9002 of the Farm Security and Rural 

Investment Act for USDA designated 

products, use products with the highest 

content level per USDA’s biobased 

content recommendations as specified 

in the USDA Biopreferred Program. 

(B) For other products, specify 

biobased products made from rapidly 

renewable resources and certified 

sustainable wood products. 

(iii) Environmentally preferable 

products. Federal agencies must use 

products that have a lesser or reduced 

effect on human health and the 

environment over their life-cycle when 

compared with competing products or 

services that serve the same purpose. 

Federal agencies should consider the 

number of standards and ecolabels are 

available in the marketplace to assist 

specifiers in making environmentally 

preferable decisions. Consult the ‘‘EPA 

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Federal Register / Vol. 75, No. 103 / Friday, May 28, 2010 / Proposed Rules 29947 

Federal Green Construction Guide for 

Specifiers’’ for recommendations. 

(iv) Waste and materials 

management. (A) Buildings shall plan 

for recycling of specific materials, such 

as paper, metals, plastics, cardboard, 

and electronics (and associated 

products). 

(B) Adequate space, equipment, and 

transport accommodations for recycling 

must be included in the building design. 

(C) During a project’s planning stage, 

local recycling and salvage operations 

that could process site-related 

construction and demolition materials 

must be identified. If such operations 

are available locally, materials must be 

recycled or salvaged. 

(v) At least 50 percent of nonhazardous and non-radioactive 

construction, demolition and land 

clearing materials, excluding soil, must 

be recycled or salvaged. 

(vi) Ozone-depleting compounds. The 

use of ozone-depleting compounds 

during and after construction must be 

eliminated where alternative 

environmentally preferable products are 

available. 

(9) Siting. (i) The site selection for 

Federal building construction shall 

comply with all applicable Federal 

rules, Executive Orders, and other 

Federal actions governing 

environmental issues impacted by 

Federal building construction. 

(ii) Site selection must prioritize; 

(A) Building orientation to maximize 

energy efficiency of the building; 

(B) Locations in central business 

districts and rural town center; 

(C) Sites well served by transit; 

(D) Site design elements that ensure 

safe and convenient pedestrian access; 

(E) Consideration of transit access and 

proximity to housing affordable to a 

wide range of Federal employees; 

(F) Adaptive reuse or renovation of 

buildings; 

(G) Avoiding development of 

sensitive land resources (such as 

greenfields and USDA Prime Farmland); 

and 

(H) Evaluation of parking 

management strategies. 

(g)(1) Ventilation and thermal 

comfort. Federal agencies shall design 

new buildings and major renovations to 

meet the requirements of ASHRAE 55 

(incorporated by reference; see § 435.3), 

including continuous humidity control 

within established ranges per climate 

zone, and ASHRAE 62.2, (incorporated 

by reference; see § 435.3). 

(2) Radon. New Federal low-rise 

residential buildings and major 

renovations to such buildings in 

locations with a high radon potential 

shall comply with ASTM 1465–08a 

(incorporated by reference; see § 435.3). 

16. Add § 435.7 to read as follows: 

§ 435.7 Water conservation. 

If water is used to achieve energy 

efficiency, water conservation 

technologies must be applied to the 

extent practical that the technologies are 

life-cycle cost-effective. 

17. Revise § 435.8 to read as follows: 

§ 435.8 Life-cycle costing. 

For the purpose of this section, 

evaluation of whether compliance with 

a requirement is life-cycle cost-effective 

shall be considered on the basis of 

individual requirements, not the entire 

rule. If synergies exist that make 

combinations of requirements life-cycle 

cost-effective where individual 

requirements are not, then these 

combination of requirements shall be 

complied with. If requirements 

containing numerical savings values are 

not life-cycle cost-effective, the design 

of the proposed building shall 

incorporate as much savings as is lifecycle cost-effective. 

18. Add a new § 435.9 to read as 

follows: 

§ 435.9 Green building certification. 

(a) Green building certification 

system. If a new Federal building or 

Federal building undergoing a major 

renovation, meeting the criteria in 

§ 435.6(b) for which design for 

construction began 1 year after 

publication of the final rule is to be 

certified under a green building 

certification system, the system under 

which the building is certified must – 

(1) Have the ability for 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 periodically demonstrate 

continued environmental benefits and 

energy savings. 

(b) Certification level. If a new Federal 

building or Federal building undergoing 

a major renovation meeting either of the 

two criteria in § 435.6(b) is to be 

certified under a green building 

certification system, the building must 

be certified to a level that – 

(1) Ensures compliance with— 

(i) The energy efficiency performance 

standards of this part; and 

(ii) Water use requirements of this 

part; and 

(iii) Sustainable design requirements 

of this part. 

(2) Promotes the high performance 

sustainable building guidelines 

referenced in E.O. 13423 ‘‘Strengthening 

Federal Environmental, Energy, and 

Transportation Management.’’ 

(c) Federal agencies may request DOE 

approval of internal certification 

processes, using certified professionals, 

in lieu of certification by a system 

meeting the criteria in paragraph (a) of 

this section. Requests for approval must 

be sent to the Office of the Federal 

Energy Management Program in the 

DOE. Submissions should demonstrate 

how the internal certification process 

would ensure compliance with all 

applicable regulations under this Part. 

The Office of the Federal Energy 

Management Program may request 

additional information as necessary. 

The Office of Federal Energy 

Management will make a determination 

within 120 days of a completed 

submission. An agency may then 

employ the approved internal 

certification process but must obtain 

external certification by a system 

meeting the criteria in paragraph (a) of 

this section for at least 5 percent of the 

total number of buildings certified 

annually by the agency. 

[FR Doc. 2010–12677 Filed 5–27–10; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL HOUSING FINANCE 

AGENCY 

12 CFR Part 1281 

RIN 2590–AA16 

Federal Home Loan Bank Housing 

Goals 

AGENCY: Federal Housing Finance 

Agency. 

ACTION: Notice of proposed rulemaking; 

request for comment. 

SUMMARY: Section 1205 of the Housing 

and Economic Recovery Act of 2008 

(HERA) amended the Federal Home 

Loan Bank Act (Bank Act) by adding a 

new section 10C(a) that requires the 

Director of the Federal Housing Finance 

Agency (FHFA) to establish housing 

goals with respect to the Federal Home 

Loan Banks’ (Banks) purchase of 

mortgages, if any. Section 10C(b) 

provides that the Banks’ housing goals 

are to be consistent with the housing 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS