This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

49279 

Vol. 76, No. 154 

Wednesday, August 10, 2011 

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 MultiFamily 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 lowrise 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: Michael.Erbesfeld@ee.doe.gov, 

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: Ami.GraceTardy@hq.doe.gov. 

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 AirConditioning 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 multifamily 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 costeffective. (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 

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49280 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

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 costeffectiveness 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 lifecycle 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 costeffective. 

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 costeffectiveness 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 

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

individuals protect the environment 

through superior energy efficiency. The 

EPA specifications for ENERGY STARlabeled 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 costeffectiveness 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 MultiFamily 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 multifamily high-rise buildings is ANSI/ 

ASHRAE/IESNA Standard 90.1–2007. 

This link also contains a link to a readonly 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 BuildingsTM Core 

Performance GuideTM—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, 

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49282 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

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 multifamily high-rise residential buildings 

and low-rise residential buildings. The 

cost estimate for commercial and multifamily 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 MultiFamily 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 ‘‘noaction 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, 

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

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49284 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

(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 

■ 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. Amend § 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: 

§ 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 § 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 § 433.3). 

* * * * * 

■ 4. Revise § 433.3 to read as follows: 

§ 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 AirConditioning 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 

§§ 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 

§§ 433.2, 433.4, 433.5. 

■ 5. In § 433.4, revise paragraph (a) to 

read as follows: 

§ 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 § 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 § 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. 

* * * * * 

■ 6. In § 433.5, revise paragraph (a) to 

read as follows: 

§ 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 § 433.3), 

except the formula for calculating the 

Performance Rating in paragraph G1.2 

shall read as follows: 

Percentage improvement = 100 × 

((Baseline building consumption— 

Receptacle and process loads)— 

(Proposed building consumption ¥ 

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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 49285 

Receptacle and process loads))/ 

(Baseline building consumption— 

Receptacle and process loads) 

(which simplifies as follows): 

Percentage improvement = 100 × 

(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 

§ 433.3), except the formula for 

calculating the Performance Rating in 

paragraph G1.2 shall read as follows: 

Percentage improvement = 100 × 

((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 × 

(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 

■ 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. 

■ 8. Amend § 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: 

§ 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 § 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 § 435.3). 

* * * * * 

■ 9. Revise § 435.3 to read as follows: 

§ 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 §§ 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 

§§ 435.2, 435.4, 435.5. 

■ 10. In § 435.4, revise paragraph (a) to 

read as follows: 

§ 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 § 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 § 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. 

* * * * * 

■ 11. Revise § 435.5 to read as follows: 

§ 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 § 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 § 435.3). 

[FR Doc. 2011–20024 Filed 8–9–11; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2010–1171; Airspace 

Docket No. 10–ASW–16] 

Amendment of Class D Airspace; 

Corpus Christi, TX 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule; correction. 

SUMMARY: This action corrects the 

geographic coordinates in the regulatory 

text of a final rule that was published in 

the Federal Register June 2, 2011, 

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