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[Federal Register Volume 76, Number 154 (Wednesday, August 10, 2011)]
[Rules and Regulations]
[Pages 49279-49285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20024]

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Rules and Regulations
                                                Federal Register
________________________________________________________________________

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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / 
Rules and Regulations

[[Page 49279]]

DEPARTMENT OF ENERGY

10 CFR Parts 433 and 435

[Docket No. EERE-2011-BT-STD-0005]
RIN 1904-AC41

Energy Efficiency Design Standards for New Federal Commercial and 
Multi-Family High-Rise Residential Buildings and New Federal Low-Rise 
Residential Buildings

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Energy (DOE) is publishing this final 
rule to implement provisions in the Energy Conservation and Production 
Act (ECPA) that require DOE to update the baseline Federal energy 
efficiency performance standards for the construction of new Federal 
buildings, including commercial and multi-family high-rise residential 
buildings and low-rise residential buildings. This rule updates the 
baseline Federal commercial standard to the American Society of 
Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) 
Standard 90.1-2007. This rule also updates the baseline Federal 
residential standard to the 2009 International Energy Conservation Code 
(IECC).

DATES: This rule is effective October 11, 2011. The incorporation by 
reference of certain publications in the rule is approved by the 
Director of the Federal Register as of October 11, 2011.

ADDRESSES: Docket: For access to the docket to read background 
documents or comments received by DOE, go to the U.S. Department of 
Energy, (Office of Building Technologies Resource Room), 950 L'Enfant 
Plaza, SW., Washington, DC 20024 between 9 a.m. and 4 p.m., Monday 
through Friday, except Federal holidays. Please call Brenda Edwards at 
(202) 586-2945 for additional information regarding visiting the 
Building Technologies Resource Room. Resource Room hours are between 9 
a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Erbesfeld, U.S. Department 
of Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW., 
Washington, DC 20585, (202) 287-1874, e-mail: 
[email protected], or Ms. Ami Grace-Tardy, Esq., U.S. 
Department of Energy, Office of the General Counsel, Forrestal 
Building, GC-71, 1000 Independence Avenue, SW., Washington, DC 20585, 
(202) 586-5709, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rulemaking incorporates by reference 
the following standard into Part 433:
     ANSI/ASHRAE/IESNA Standard 90.1-2007, Energy Standard for 
Buildings Except Low-Rise Residential Buildings, 2007, American Society 
of Heating Refrigerating and Air-Conditioning Engineers, Inc., ISSN 
1041-2336.
    Copies of this standard are available from the American Society of 
Heating Refrigerating and Air-Conditioning Engineers, Inc., 1791 Tullie 
Circle, NE., Atlanta, GA 30329, (404) 636-8400, http://www.ashrae.org//.
    This rulemaking also incorporates by reference the following 
standard into part 435:
     ICC International Energy Conservation Code (IECC), 2009 
Edition, January 2009, International Code Council, ISBN 978-1-58001-
742-8.
    Copies of this standards are available from International Code 
Council, 500 New Jersey Avenue, NW., 6th Floor, Washington, DC 20001, 
1-888-ICC-SAFE (422-7233) or (202) 370-1800, http://www.iccsafe.org/Pages/default.aspx.

I. Introduction
II. Discussion of Today's Action
III. Compliance Date
IV. Reference Resources
V. Regulatory Analysis
VI. Congressional Notification

I. Introduction

    Section 305 of the Energy Conservation and Production Act (ECPA), 
as amended, requires DOE to establish building energy efficiency 
standards for all new Federal buildings. (42 U.S.C. 6834(a)(1)) The 
standards established under section 305(a)(1) of ECPA must contain 
energy efficiency measures that are technologically feasible, 
economically justified, and meet the energy efficiency levels in the 
applicable voluntary consensus energy codes specified in section 305. 
(42 U.S.C. 6834(a)(1)-(3))
    Under section 305 of ECPA, the referenced voluntary consensus code 
for commercial buildings (including multi-family high rise residential 
buildings) is the American Society of Heating, Refrigerating, and Air-
Conditioning Engineers (ASHRAE) Standard 90.1 and the referenced code 
for low-rise residential buildings is the International Energy 
Conservation Code (IECC). (42 U.S.C. 6834(a)(2)(A)) DOE codified these 
referenced codes into energy efficiency standards in 10 CFR parts 433, 
434, and 435. Also under section 305 of ECPA, DOE must establish, by 
rule, revised Federal building energy efficiency performance standards 
for new Federal buildings that require such buildings be designed to 
achieve energy consumption levels that are at least 30 percent below 
the levels established in the referenced codes, if life-cycle cost-
effective. (42 U.S.C. 6834(a)(3)(A)(i)(I))
    Under section 305 of ECPA, not later than one year after the date 
of approval of each subsequent revision of the ASHRAE Standard or the 
IECC, DOE must determine whether to amend the Federal building 
standards with the revised voluntary standard based on the cost-
effectiveness of the revised voluntary standard. (42 U.S.C. 
6834(a)(3)(B)) It is this requirement that today's rulemaking 
addresses. ASHRAE Standard 90.1 and the IECC have been updated from the 
versions currently referenced in DOE's regulations at 10 CFR parts 433 
and 435. DOE is now revising the baseline Federal building standards 
for 10 CFR parts 433 and 435.
    Section 306(a) of ECPA provides that each Federal agency and the 
Architect of the Capitol must adopt procedures to ensure that new 
Federal buildings will meet or exceed the Federal building energy 
efficiency standards established under section 305. (42 U.S.C. 6835(a)) 
Section 306(b) bars the head of a Federal agency from expending Federal 
funds for the construction of a new Federal building unless the 
building meets or

[[Page 49280]]

exceeds the applicable Federal building energy standards established 
under section 305. (42 U.S.C. 6835(b)) This includes both the 
requirement that all new Federal buildings comply with the baseline 
standards in ASHRAE Standard 90.1 and the IECC and the requirement that 
new Federal buildings achieve energy consumption levels at least 30 
percent below these minimum baseline standards where life-cycle cost-
effective. (42 U.S.C. 6834 (a)(3)(A))

II. Discussion of Today's Action

    DOE is issuing today's action as a final rule. As indicated above, 
DOE must determine whether the energy efficiency standards for new 
Federal buildings should be updated to reflect revisions to ASHRAE 
Standard 90.1 or the IECC based on the cost-effectiveness of the 
revisions. (42 U.S.C. 6834(a)(3)(B)) In today's final rule, DOE 
determines that the energy efficiency standards for new Federal 
buildings should be updated to reflect the 2007 revisions to ASHRAE 
Standard 90.1 and the 2009 revisions to the IECC based on the cost-
effectiveness of the revisions.
    DOE reviewed ASHRAE Standard 90.1 and the IECC standard for DOE's 
state building codes program and determined that the 2007 version of 
ASHRAE Standard 90.1 and the 2009 version of the IECC would achieve 
greater energy efficiency than their respective prior versions. These 
determinations were subject to notice and comment. See 75 FR 54117 
(September 3, 2010) and 75 FR 54131 (September 3, 2010). In those prior 
determinations, and again in today's rule, DOE states that the cost-
effectiveness of revisions to the voluntary codes is considered through 
DOE's statutorily directed involvement in the codes process. See 75 FR 
54121. Section 307 of ECPA requires DOE to participate in the ASHRAE 
and IECC codes development process and to assist in determining the 
cost-effectiveness of the voluntary standards. (42 U.S.C. 6836) DOE is 
required to periodically review the economic basis of the voluntary 
building energy codes and participate in the industry process for 
review and modification, including seeking adoption of all 
technologically feasible and economically justified energy efficiency 
measures. (42 U.S.C. 6836(b))
    ASHRAE Standard 90.1 is developed through an American National 
Standards Institute (ANSI) consensus process. The ANSI consensus 
process involves representatives of producers (industry), users (owners 
and designers), and general (advocates and government) segments of the 
building industry. Part of that process involves development of cost-
effectiveness criteria to use in the development of Standard 90.1. 
Another part of the process is extensive public review and comment of 
each change to Standard 90.1. During the course of the public review 
and comment process, cost-effectiveness is often a topic. One of the 
objectives considered by the committee developing Standard 90.1 is for 
the requirements of Standard 90.1 to be cost-effective for use in the 
private sector. The 90.1 committee uses a scalar ratio for cost-
effectiveness based on ASTM Standard E917-Standard Practice for 
Measuring Life-Cycle Costs of Buildings and Building Systems.
    Similarly, the IECC is developed by the International Code Council 
(ICC) in a government-consensus process. In the ICC process, only 
voting members of the ICC who are representative of state and local 
governments and who are responsible for code enforcement vote on any 
changes to the IECC. The public may participate in hearings and the 
hearings are widely attended by the building community. The process in 
the ICC is somewhat different than in Standard 90.1 in that explicit 
use of life-cycle costing is not required for each change proposed to 
the IECC. However, proponents of changes are required to state if a 
proposed change will increase the first cost of construction and the 
cost-effectiveness of proposals is widely debated during the hearings. 
Given the level of debate by the entire building community, DOE 
believes that the end result of the ICC code development process is an 
energy code that is cost-effective.
    In today's rule, DOE is amending the energy efficiency standards 
applicable to new Federal buildings based on the determinations made by 
DOE as to the energy efficiency improvements of ASHRAE Standard 90.1-
2007 and the 2009 IECC, as compared to their respective predecessor 
versions, and based on the considerations of cost-effectiveness 
incorporated into the codes processes, as well as DOE's involvement in 
those processes. This final rule amends 10 CFR Parts 433 and 435 to 
update the referenced baseline Federal energy efficiency performance 
standards. No other changes are proposed to 10 CFR parts 433 and 435 by 
this rule.
    DOE notes that it is currently working on preliminary 
determinations for ASHRAE Standard 90.1-2010 and the 2012 IECC. If DOE 
finalizes these determinations, the Department intends to update 10 CFR 
Part 433 with ASHRAE Standard 90.1-2010 and 10 CFR part 435 with the 
2012 IECC.

III. Compliance Date

    Today's final rule applies to new Federal buildings for which 
design for construction begins on or after one year from the date of 
this notice. Such buildings must be designed to exceed the energy 
efficiency level of the appropriate updated voluntary standard by 30 
percent if life-cycle cost-effective. However, at a minimum, such 
buildings must achieve the energy efficiency equal to that of the 
appropriate updated voluntary standard. One year lead time is 
consistent with DOE's previous updates to the energy efficiency 
baselines and the original statutory mandate for Federal building 
standards. One year lead time helps minimize compliance costs to 
agencies, which may have planned buildings in various stages of design, 
and allows for design changes to more fully consider life-cycle cost-
effective measures (as opposed to having to revise designs in 
development, which may make incorporation of energy efficiency measure 
more difficult or expensive.)

IV. Reference Resources

    The Department originally prepared this list of resources to help 
Federal agencies achieve building energy efficiency levels of at least 
30 percent below ASHRAE Standard 90.1-2004 or the 2004 IECC. The 
Department has reviewed these resources and believes that they are 
still applicable to helping agencies achieve building energy efficiency 
levels of at least 30% better than ASHRAE Standard 90.1-2007 or the 
2009 IECC. The Department has updated this resource list as necessary. 
These resources come in many forms and in a variety of media. Resources 
are provided for three categories: For all buildings, specifically for 
commercial and multi-family high-rise residential buildings, and 
specifically for low-rise residential buildings.

Resources for All Buildings

Energy Efficient Products--U.S. DOE Federal Energy Management Program 
and U.S. Environmental Protection Agency (EPA) ENERGY STAR Program
    http://www.eere.energy.gov/femp/procurement/ and http://www.energystar.gov/products.
    Federal agencies are required by the Energy Policy Act of 2005 to 
specify Federal Energy Management Program (FEMP) designated or ENERGY 
STAR equipment, including building mechanical and lighting equipment 
and builder-supplied appliances, for purchase and installation in all 
new construction. This equipment is generally more efficient than the

[[Page 49281]]

corresponding requirements of ASHRAE Standard 90.1-2004 and the 2004 
IECC, and may be used to achieve part of the savings required of 
Federal building designs. (Today's rule does not specifically address 
the use of this equipment, but this Web site is listed for convenience 
because it is a very useful resource for achieving part of the energy 
savings required by the rule.)
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 Life-Cycle Cost Methodology and Procedures conform to 
requirements in the Federal Energy Management Improvement Act of 1988 
(Pub. L. 100-615) and subsequent energy conservation legislation, as 
well as Executive Order 13123, Greening the Government through 
Efficient Energy Management. The life-cycle cost guidance and required 
discount rates and energy price projections are determined annually by 
FEMP and the Energy Information Administration, and are 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'' http://www1.eere.energy.gov/femp/pdfs/ashb10.pdf. FEMP also provides guidance on the life-cycle cost 
requirements of Executive Order 13123 at http://www1.eere.energy.gov/femp/information/download_blcc.html.
ENERGY STAR Buildings--U.S. Environmental Protection Agency and U.S. 
Department of Energy
    http://www.energystar.gov/index.cfm?c=new_homes.nh_features 
(homes) and http://www.energystar.gov/index.cfm?c=new_bldg_design.bus_target_finder (non-residential buildings).
    ENERGY STAR is a Government-backed program helping businesses and 
individuals protect the environment through superior energy efficiency. 
The EPA specifications for ENERGY STAR-labeled homes, effective as of 
the date of this rule, provide a useful prescriptive guide for meeting 
the Federal energy efficiency standard for low-rise residential 
buildings. EPA plans to launch ENERGY STAR specifications for new 
construction and substantially rehabilitated multifamily high rise 
buildings in July 2011. The benchmarking tool and other information at 
the ENERGY STAR Target Finder Web site can be useful in determining an 
annual energy target for building design and computer simulations, 
evaluating cost-effectiveness of efficiency measures, and tracking a 
building's actual energy performance after construction.
Commercial Building Initiative--U.S. DOE Building Technologies Program
    http://www1.eere.energy.gov/buildings/commercial_initiative/.
    A collection of design approaches, tools, technologies and case 
studies focused on high performance buildings that achieve savings of 
30 percent to 50 percent better than generally accepted good practice.
Building Energy Software Tools--U.S. DOE Building Technologies Program
    http://www.eere.energy.gov/buildings/tools_directory/.
    This directory provides information on building software tools for 
evaluation energy efficiency, renewable energy, and sustainability in 
buildings.

Resources for Commercial and Multi-Family High-Rise Residential 
Buildings

ASHRAE Standard 90.1-2007--ASHRAE
    http://www.ashrae.org (search for Standard 90.1-2007) or http://www.techstreet.com/standards/ASHRAE/90_1_2007_I_P_?product_id=1536065.
    The baseline energy efficiency standard for commercial and multi-
family high-rise buildings is ANSI/ASHRAE/IESNA Standard 90.1-2007. 
This link also contains a link to a read-only version of Standard 90.1-
2007.
Whole Building Design Guide--National Institute of Building Sciences
    http://www.wbdg.org.
    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.
Advanced Energy Design Guides--ASHRAE
    http://www.ashrae.org/aedg.
    A set of design guides for users who wish to go beyond Standard 
90.1. The design guides are targeted at 30 percent better than ASHRAE 
Standard 90.1-2004 (which translates to approximately 25 percent better 
than Standard 90.1-2007). (DOE's final determination of energy savings 
for Standard 90.1-2007 (available at http://www.energycodes.gov/status/determinations_com.stm) indicates that Standard 90.1-2007 is 
approximately 4.6 percent better than Standard 90.1-2004 on a site 
energy basis.) The design guides are available for free download.
Advanced Buildings\TM\ Core Performance Guide\TM\--New Buildings 
Institute
    http://www.newbuildings.org/advanced-design/advanced-buildings.
    A set of guidelines for the design, construction, and operation of 
new and renovated nonresidential buildings targeted at 30 percent 
better than ASHRAE Standard 90.1-2004 (which translates to 
approximately 25 percent better than ASHRAE Standard 90.1-2007).
Labs for the 21st Century--U.S. EPA and U.S. DOE
    http://www.labs21century.gov/.
    A Web site focused on improving the energy efficiency and 
environmental performance of laboratory space. This site includes 
training and educational resources and design tools focused on 
laboratories.

Resources for Low-Rise Residential Buildings

2009 IECC--ICC
    http://www.iccsafe.org (search for 2009 IECC) or http://www.iccsafe.org/Store/Pages/Product.aspx?category=0&cat=ICCSafe&id=3800X09.
    The baseline energy efficiency standard for low-rise residential 
buildings is the International Code Council (ICC) 2009 IECC.
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.
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/sp.asp?mc=about_path.
    PATH is dedicated to accelerating the development and use of 
technologies that radically improve the quality,

[[Page 49282]]

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.

V. Regulatory Analysis

A. Review Under Executive Order 12866, ``Regulatory Planning and 
Review''

    Today's final rule is a ``significant regulatory action'' under 
Executive Order 12866, ``Regulatory Planning and Review.'' 58 FR 51735 
(October 4, 1993). Accordingly, today's action was subject to review by 
the Office of Information and Regulatory Affairs in the Office of 
Management and Budget (OMB). OMB has completed its review.
    DOE believes that although cost increases vary from project to 
project, the construction cost of Federal buildings will increase only 
slightly as a result of this rule. DOE estimates a construction cost 
increase of less than 1% for both commercial and multi-family high-rise 
residential buildings and low-rise residential buildings. The cost 
estimate for commercial and multi-family high-rise residential 
buildings is based on an interpolation of a cost study conducted on 
several building types that are 30% or 50% more efficient than ASHRAE 
Standard 90.1-2004. The cost estimate for low-rise residential 
buildings is based on the national average cost increase of homes under 
the 2009 IECC compared to the 2006 IECC. The 2004 and 2006 IECC are 
approximately equivalent on a national average in terms of baseline 
cost and efficiency, therefore it is reasonable to estimate the cost 
increase for the 2009 IECC by comparing it to the 2006 IECC.

B. Administrative Procedure Act

    DOE notes that the determinations regarding the updated voluntary 
consensus codes were subject to notice and comment in evaluating the 
voluntary consensus codes in the context of State building codes. See 
75 FR 54117 (September 3, 2010) and 75 FR 54131 (September 3, 2010). 
The determinations made in the context of the State codes are equally 
applicable in the context of Federal buildings. DOE finds that 
providing notice and comment on the determinations again in the context 
of Federal buildings would be unnecessary. The fact that the voluntary 
consensus codes apply to Federal buildings as opposed to the general 
building stock does not require a different evaluation of energy 
efficiency and cost-effectiveness. Additionally, DOE notes that today's 
rule, amending standards on energy efficiency performance standards for 
the design and construction of new Federal buildings, is a rule 
relating to public property, and therefore, is not subject to the 
rulemaking requirements of the Administrative Procedure Act, including 
the requirement to publish a notice of proposed rulemaking. (See, 5 
U.S.C. 553(a)(2))

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, Proper Consideration of Small Entities in 
Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process, 68 FR 7990. The Department 
has made its procedures and policies available on the Office of General 
Counsel's Web site: http://www.gc.doe.gov.
    DOE has determined that a notice of proposed rulemaking is not 
required by 5 U.S.C. 553 or any other law for issuance of this rule. As 
such the analytical requirements of the Regulatory Flexibility Act do 
not apply.

D. Review Under the Paperwork Reduction Act of 1995

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

E. Review Under the National Environmental Policy Act of 1969

    The Department prepared an Environmental Assessment (EA) (DOE/EA-
1871) entitled, ``Environmental Assessment for Final Rule, 10 CFR part 
433, `Energy Efficiency Standards for New Federal Commercial and Multi-
Family High-Rise Residential Buildings,' and 10 CFR part 435, `Energy 
Efficiency Standards for New Federal Low-Rise Residential Buildings' 
Baseline Standards Update,'' pursuant to the Council on Environmental 
Quality's (CEQ) Regulations for Implementing the Procedural Provisions 
of the National Environmental Policy Act (40 CFR parts 1500-1508), the 
National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 
4321 et seq.), and DOE's NEPA Implementing Procedures (10 CFR part 
1021).
    The EA addresses the possible incremental environmental effects 
attributable to the application of the final rule. The only anticipated 
impact would be a decrease in outdoor air pollutants resulting from 
decreased fossil fuel burning for energy use in Federal buildings. 
Therefore, DOE has issued a Finding of No Significant Impact (FONSI), 
pursuant to NEPA, the regulations of the Council on Environmental 
Quality (40 CFR parts 1500-1508), and DOE's regulations for compliance 
with NEPA (10 CFR part 1021).
    To identify the potential environmental impacts that may result 
from implementing the final rule on new Federal commercial buildings, 
DOE compared the final rule with the ``no-action alternative'' of using 
the current Federal standards. This comparison essentially compares the 
baseline standards--ANSI/ASHRAE/IESNA Standards 90.1-2004 and 90.1-2007 
for Federal commercial and multi-family high-rise residential 
buildings, and the 2004 Supplement to the 2003 IECC to the 2009 IECC 
for Federal low-rise residential buildings. This comparison is 
identical to that undertaken by DOE in its determinations of energy 
savings of those standards and codes. For the purposes of this 
environmental assessment, DOE also investigated the impact of buildings 
achieving energy consumption below Standard 90.1-2007 or the 2009 IECC 
in increments of 10 percent, up to 50 percent. The Federal government 
is estimated to construct about 2000 covered, low-rise housing units 
annually, which, if built to realize a 30 percent savings over the 2009 
IECC, will avoid 3,600 metric tons of carbon dioxide emissions, 22 
metric tons of methane emissions, 1 metric ton of nitrogen oxide, and 2 
metric tons of sulfur dioxide each in the first year the final rule is 
in effect. These savings would compound in future years as more and 
more Federal construction occurs.
    For commercial and multi-family high-rise residential buildings, 
the Federal government is projected to construct 40 million square feet 
of Federal commercial buildings annually. Federal multi-family high-
rise residential buildings are rare. Looking just at Federal commercial 
buildings,

[[Page 49283]]

and assuming a 30 percent savings over Standard 90.1-2007, 6,200 metric 
tons of carbon dioxide will be avoided (relative to the existing 10 CFR 
part 433) in the first year the final rule is in effect. These savings 
would compound in future years as more and more Federal construction 
occurs. Again assuming a 30 percent savings over Standard 90.1-2007, 24 
metric tons of methane emissions will be avoided, 6 metric tons of 
nitrogen oxide emissions will be avoided, and 14 metric tons of sulfur 
dioxide emissions will be avoided, all in the first year the rule is in 
effect.

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

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

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

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

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

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

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

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

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

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

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

L. 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:

[[Page 49284]]

(1) Is a significant regulatory action under Executive Order 12866, or 
any successor order; and (2) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy, or (3) is 
designated by the Administrator of OIRA as a significant energy action. 
For any proposed significant energy action, the agency must give a 
detailed statement of any adverse effects on energy supply, 
distribution, or use should the proposal be implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use. This final rule would not have a 
significant adverse effect on the supply, distribution, or use of 
energy and, therefore, is not a significant energy action. Accordingly, 
DOE has not prepared a Statement of Energy Effects.

VI. Congressional Notification

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

List of Subjects in 10 CFR Parts 433 and 435

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

    Issued in Washington, DC, on July 13, 2011.
Kathleen Hogan,
Deputy Assistant Secretary for Energy Efficiency, Office of Technology 
Development, Energy Efficiency and Renewable Energy.

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

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

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

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

0
2. The heading for part 433 is revised to read as set forth above.

0
3. Amend Sec.  433.2 by removing the definition of ``Baseline 
building'' and adding in alphabetical order the definitions of ``ASHRAE 
Baseline Building 2004'' and ``ASHRAE Baseline Building 2007'' to read 
as follows:

Sec.  433.2   Definitions.

* * * * *
    ASHRAE Baseline Building 2004 means a building that is otherwise 
identical to the proposed building but is designed to meet, but not 
exceed, the energy efficiency specifications in ANSI/ASHRAE/IESNA 
Standard 90.1-2004, Energy Standard for Buildings Except Low-Rise 
Residential Buildings, January 2004 (incorporated by reference, see 
Sec.  433.3).
    ASHRAE Baseline Building 2007 means a building that is otherwise 
identical to the proposed building but is designed to meet, but not 
exceed, the energy efficiency specifications in ANSI/ASHRAE/IESNA 
Standard 90.1-2007, Energy Standard for Buildings Except Low-Rise 
Residential Buildings, December 2007 (incorporated by reference, see 
Sec.  433.3).
* * * * *

0
4. Revise Sec.  433.3 to read as follows:

Sec.  433.3   Materials incorporated by reference.

    (a) General. The Department of Energy incorporates by reference the 
energy performance standards listed in paragraph (b) of this section 
into 10 CFR part 433. The Director of the Federal Register has approved 
the material listed in paragraph (b) of this section for incorporation 
by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Any 
subsequent amendment to a standard by the standard-setting organization 
will not affect DOE regulations unless and until DOE amends its energy 
performance standards. Material is incorporated as it exists on the 
date of the approval, and a notice of any change in the material will 
be published in the Federal Register. All approved material is 
available for inspection at the U.S. Department of Energy, Office of 
Energy Efficiency and Renewable Energy, Building Technologies Program, 
Sixth Floor, 950 L'Enfant Plaza, SW., Washington, DC 20024, (202) 586-
2945. Also, this material is available for inspection at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (b) ASHRAE. American Society of Heating Refrigerating and Air-
Conditioning Engineers, Inc., 1791 Tullie Circle, NE. Atlanta, GA 
30329, (404) 636-8400; or go to, http://www.ashrae.org//.
    (1) ANSI/ASHRAE/IESNA 90.1-2004, (``ASHRAE 90.1-2004''), Energy 
Standard for Buildings Except Low-Rise Residential Buildings, January 
2004, ISSN 1041-2336, IBR approved for Sec. Sec.  433.2, 433.4, 433.5;
    (2) ANSI/ASHRAE/IESNA Standard 90.1-2007, (``ASHRAE 90.1-2007''), 
Energy Standard for Buildings Except Low-Rise Residential Buildings, 
2007, ISSN 1041-2336, IBR approved for Sec. Sec.  433.2, 433.4, 433.5.

0
5. In Sec.  433.4, revise paragraph (a) to read as follows:

Sec.  433.4  Energy efficiency performance standard.

    (a) (1) All Federal agencies shall design new Federal buildings 
that are commercial and multi-family high-rise residential buildings, 
for which design for construction began on or after January 3, 2007, 
but before August 10, 2012, to:
    (i) Meet ASHRAE 90.1-2004, (incorporated by reference, see Sec.  
433.3); and
    (ii) If life-cycle cost-effective, achieve energy consumption 
levels, calculated consistent with paragraph (b) of this section, that 
are at least 30 percent below the levels of the ASHRAE Baseline 
Building 2004.
    (2) All Federal agencies shall design new Federal buildings that 
are commercial and multi-family high-rise residential buildings, for 
which design for construction began on or after August 10, 2012, to:
    (i) Meet ASHRAE 90.1-2007, (incorporated by reference, see Sec.  
433.3); and
    (ii) If life-cycle cost-effective, achieve energy consumption 
levels, calculated consistent with paragraph (b) of this section, that 
are at least 30 percent below the levels of the ASHRAE Baseline 
Building 2007.
* * * * *

0
6. In Sec.  433.5, revise paragraph (a) to read as follows:

Sec.  433.5   Performance level determination.

    (a)(1) For Federal buildings for which design for construction 
began on or after January 3, 2007, but before August 10, 2012, each 
Federal agency shall determine energy consumption levels for both the 
ASHRAE Baseline Building 2004 and proposed building by using the 
Performance Rating Method found in Appendix G of ASHRAE 90.1-2004 
(incorporated by reference, see Sec.  433.3), except the formula for 
calculating the Performance Rating in paragraph G1.2 shall read as 
follows:

Percentage improvement = 100 x ((Baseline building consumption--
Receptacle and process loads)--(Proposed building consumption -

[[Page 49285]]

Receptacle and process loads))/(Baseline building consumption--
Receptacle and process loads) (which simplifies as follows):

Percentage improvement = 100 x (Baseline building consumption--Proposed 
building consumption)/(Baseline building consumption--Receptacle and 
process loads).

    (2) For Federal buildings for which design for construction began 
on or after August 10, 2012, each Federal agency shall determine energy 
consumption levels for both the ASHRAE Baseline Building 2007 and 
proposed building by using the Performance Rating Method found in 
Appendix G of ASHRAE 90.1-2007 (incorporated by reference, see Sec.  
433.3), except the formula for calculating the Performance Rating in 
paragraph G1.2 shall read as follows:

Percentage improvement = 100 x ((Baseline building consumption--
Receptacle and process loads)--(Proposed building consumption - 
Receptacle and process loads))/(Baseline building consumption--
Receptacle and process loads) (which simplifies as follows):

Percentage improvement = 100 x (Baseline building consumption--Proposed 
building consumption)/(Baseline building consumption-Receptacle and 
process loads).

* * * * *

PART 435--ENERGY EFFICIENCY STANDARDS FOR NEW FEDERAL LOW-RISE 
RESIDENTIAL BUILDINGS

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

    Authority: 42 U.S.C. 6831-6832, 6834-6836; 42 U.S.C. 8253-54, 42 
U.S.C. 7101 et seq.

0
8. Amend Sec.  435.2 by removing the definition of ``Baseline 
building'' and adding in alphabetical order the definitions of ``IECC 
Baseline Building 2004'' and ``IECC Baseline Building 2009'' to read as 
follows:

Sec.  435.2   Definitions.

* * * * *
    IECC Baseline Building 2004 means a building that is otherwise 
identical to the proposed building but is designed to meet, but not 
exceed, the energy efficiency specifications in the ICC International 
Energy Conservation Code, 2004 Supplement Edition, January 2005 
(incorporated by reference, see Sec.  435.3).
    IECC Baseline Building 2009 means a building that is otherwise 
identical to the proposed building but is designed to meet, but not 
exceed, the energy efficiency specifications in the ICC International 
Energy Conservation Code, 2009 Edition, January 2009 (incorporated by 
reference, see Sec.  435.3).
* * * * *

0
9. Revise Sec.  435.3 to read as follows:

Sec.  435.3   Materials incorporated by reference.

    (a) General. The Department of Energy incorporates by reference the 
energy performance standards listed in paragraph (b) of this section 
into 10 CFR part 435. The Director of the Federal Register has approved 
the material listed in paragraph (b) of this section for incorporation 
by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Any 
subsequent amendment to a standard by the standard-setting organization 
will not affect DOE regulations unless and until DOE amends its energy 
performance standards. Material is incorporated as it exists on the 
date of the approval, and a notice of any change in the material will 
be published in the Federal Register. All approved material is 
available for inspection at the U.S. Department of Energy, Office of 
Energy Efficiency and Renewable Energy, Building Technologies Program, 
Sixth Floor, 950 L'Enfant Plaza, SW., Washington, DC 20024, (202) 586-
2945. Also, this material is available for inspection at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (b) ICC. International Code Council, 500 New Jersey Avenue, NW., 
6th Floor, Washington, DC 20001, 1-888-ICC-SAFE or (202) 370-1800, or 
go to http://www.iccsafe.org/Pages/default.aspx.
    (1) ICC International Energy Conservation Code (IECC), 2004 
Supplement Edition (``IECC 2004''), January 2005, ISBN 7801S04, IBR 
approved for Sec. Sec.  435.2, 435.4, 435.5;
    (2) ICC International Energy Conservation Code (IECC), 2009 Edition 
(``IECC 2009''), January 2009, ISBN 978-1-58001-742-8, IBR approved for 
Sec. Sec.  435.2, 435.4, 435.5.

0
10. In Sec.  435.4, revise paragraph (a) to read as follows:

Sec.  435.4  Energy efficiency performance standard.

    (a)(1)All Federal agencies shall design new Federal buildings that 
are low-rise residential buildings, for which design for construction 
began on or after January 3, 2007, but before August 10, 2012, to:
    (i) Meet the IECC 2004 (incorporated by reference, see Sec.  
435.3), and
    (ii) If life-cycle cost-effective, achieve energy consumption 
levels, calculated consistent with paragraph (b) of this section, that 
are at least 30 percent below the levels of the IECC Baseline Building 
2004.
    (2) All Federal agencies shall design new Federal buildings that 
are low-rise residential buildings, for which design for construction 
began on or after August 10, 2012, to:
    (i) Meet the IECC 2009 (incorporated by reference, see Sec.  
435.3), and
    (ii) If life-cycle cost-effective, achieve energy consumption 
levels, calculated consistent with paragraph (b) of this section, that 
are at least 30 percent below the levels of the IECC Baseline Building 
2009.
* * * * *

0
11. Revise Sec.  435.5 to read as follows:

Sec.  435.5   Performance level determination.

    (a) For Federal buildings for which design for construction began 
on or after January 3, 2007, but before August 10, 2012, each Federal 
agency shall determine energy consumption levels for both the IECC 
Baseline Building 2004 and proposed building by using the Simulated 
Performance Alternative found in section 404 of the IECC 2004 
(incorporated by reference, see Sec.  435.3).
    (b) For Federal buildings for which design for construction began 
on or after August 10, 2012, each Federal agency shall determine energy 
consumption levels for both the IECC Baseline Building 2009 and 
proposed building by using the Simulated Performance Alternative found 
in section 405 of the IECC 2009 (incorporated by reference, see Sec.  
435.3).

[FR Doc. 2011-20024 Filed 8-9-11; 8:45 am]
BILLING CODE 6450-01-P
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