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

61563 

Vol. 79, No. 198 

Tuesday, October 14, 2014 

1Letter from Daniel Tangherlini, GSA 

Administrator, to Ernest Moniz, Secretary of 

Energy, dated October 25, 2013. Letter and all 

supporting material may be found on GSA’s Web 

site at http://www.gsa.gov/portal/content/131983. 

DEPARTMENT OF ENERGY 

10 CFR Parts 433, 435 and 436 

[Docket No. EE–RM/STD–02–112] 

RIN 1904–AC13 

Green Building Certification Systems 

for Federal Buildings 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of 

Energy (DOE) issues a final rule that 

implements a provision in the Energy 

Conservation and Production Act, as 

amended by the Energy Independence 

and Security Act of 2007, which 

requires DOE to identify a green 

building certification system and level 

that DOE determines to be the most 

likely to encourage a comprehensive 

and environmentally-sound approach to 

certification of green buildings. DOE’s 

green building certification system 

review must be based on the General 

Services Administration’s review of 

third-party green building certification 

systems and levels and criteria outlined 

in the Energy Independence and 

Security Act of 2007. Under the 

regulations established today, if a 

Federal agency chooses to use a green 

building certification system for a new 

building or major renovation covered by 

today’s rule, the green building 

certification system for Federal 

buildings must meet the certification 

standards established in today’s rule. 

DATES: This rule is effective November 

13, 2014. The incorporation by reference 

of certain publications listed in this rule 

was approved by the Director of the 

Federal Register on November 13, 2014. 

ADDRESSES: This rulemaking can be 

identified by docket number EE–RM/

STD–02–112 and or RIN number 1904– 

AC13. 

Docket: The docket is available for 

review at http://www.regulations.gov 

including Federal Register Notices, 

public meeting attendee lists, 

transcripts, comments and other 

supporting documents/materials. All 

documents in the docket are listed in 

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

However, not all documents listed in 

the index may be publicly available, 

such as information that is exempt from 

public disclosure. 

For further information on how to 

review materials in the docket, contact 

Ms. Brenda Edwards at (202) 586–2945 

or email Brenda.Edwards@ee.doe.gov. 

FOR FURTHER INFORMATION CONTACT: For 

technical issues, contact Sarah Jensen, 

U.S. Department of Energy, Office of 

Energy Efficiency and Renewable 

Energy, Federal Energy Management 

Program, EE–5F, 1000 Independence 

Avenue SW., Washington, DC 20585– 

0121, (202) 287–6033, email: 

sarah.jensen@ee.doe.gov. For legal 

issues, contact Ami Grace-Tardy, U.S. 

Department of Energy, Office of the 

General Counsel, Forrestal Building, 

GC–71, 1000 Independence Avenue 

SW., Washington, DC 20585, (202) 586– 

5709, email: ami.grace-tardy@

hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

A. Background 

B. Summary of the Final Rule 

II. Discussion of Comments and Changes to 

the Proposed Rule 

III. Regulatory Analyses 

IV. Congressional Notification 

I. Introduction 

A. Background 

Section 305 of the Energy 

Conservation and Production Act 

(ECPA; Pub. L. 94–385) established 

energy conservation requirements for 

Federal buildings. (42 U.S.C. 6834) 

Section 433(a) of the Energy 

Independence and Security Act of 2007 

(EISA 2007; Pub. L. 110–140) amended 

section 305 of ECPA to require, among 

other things, DOE to identify a green 

certification system and level for rating 

Federal buildings that DOE determines 

to be the most likely to encourage a 

comprehensive and environmentally 

sound approach to such certification 

and rating. (42 U.S.C. 

6834(a)(3)(D)(i)(III)) Section 433 of EISA 

2007 also revised the definition of 

‘‘Federal building’’ applicable to the 

regulations for Federal buildings. (42 

U.S.C. 6832(6)). 

DOE’s green building certification 

system review must be based on the 

General Services Administration’s 

(GSA) review of third-party green 

building certification systems and other 

criteria outlined in EISA 2007, 

including: The ability and availability of 

assessors and auditors to independently 

verify the criteria and metrics; the 

ability of the applicable certification 

organization to collect and reflect public 

comment; the ability of the standard to 

be developed and revised through a 

consensus-based process; and an 

evaluation of the robustness of the 

criteria for a high-performance green 

building; national recognition within 

the building industry (42 U.S.C. 

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

As required under EISA 2007, at least 

once every five years, GSA must 

conduct a study to evaluate third-party 

green building certification systems and 

levels taking into consideration these 

same criteria. (42 U.S.C. 

6834(a)(3)(D)(iv)) After completion of 

each study, DOE must review and 

update its recommended certification 

systems and levels, taking into account 

GSA’s evaluation. (42 U.S.C. 

6834(a)(3)(D)(i)(III)) By rule, DOE also 

may allow Federal agencies to develop 

their own internal certification 

processes. (42 U.S.C. 6834(a)(3)(D)(v)). 

As required by Section 436(h) of EISA 

2007, in 2008 GSA identified the U.S. 

Green Building Council’s Leadership in 

Energy and Environmental Design 

(LEED) Silver as a green building 

certification system and level that meets 

the criteria expressly identified in the 

statute. In the 2011 sustainable design 

notice of proposed rulemaking 

(‘‘sustainable design NOPR’’) DOE 

requested comment on other green 

rating systems and associated levels/

points that also would meet the 

statutory criteria. See 75 FR 29933, 

29938–39 (May 28, 2010). 

On October 25, 2013, the GSA 

Administrator sent his latest green 

building certification system evaluation 

to DOE.1 The Administrator 

mstockstill on DSK4VPTVN1PROD with RULES

61564 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Rules and Regulations 

2LEED information is available at http://www.

usgbc.org/leed. 

3 Green Globes information is available at 

http://www.thegbi.org/green-globes/. 

4Notations of this form appear throughout this 

document and identify statements made in written 

comments or at public hearings that DOE has 

received and has included in the docket for this 

rulemaking. For example, ‘‘IHS, No. 45 at p. 1’’ 

refers to a comment: (1) From Indian Health 

Services; (2) in document number 45 in the docket 

of this rulemaking; and (3) appearing on page 1 of 

the submission. 

recommended that Federal agencies 

utilize the 2009 LEED 2 or the Green 

Building Initiative’s Green Globes 2010 3

certification system. For new 

construction and major renovations, 

GSA recommended that Federal 

agencies obtain at least a LEED Silver 

rating, or, if using Green Globes, at least 

2 Green Globes. 

Today’s rule updates the Federal 

energy efficiency standards by adding 

criteria that green building rating 

systems must meet. Federal agencies are 

not required to use a green building 

rating system, but if they choose to do 

so, the systems must meet these criteria. 

The Federal commercial and multifamily high-rise residential energy 

efficiency standards are contained in 10 

CFR part 433. The Federal low-rise 

residential energy efficiency standards 

are contained in 10 CFR part 435. 

Today’s rule adds the green building 

certification criteria for both 10 CFR 

part 433 and 10 CFR part 435. Today’s 

rule also reorganizes and renumbers 

existing text in these parts to 

accommodate the addition of the 

provisions regarding green building 

certification systems for Federal 

buildings. 

B. Summary of the Final Rule 

In May 2010, DOE published a notice 

of proposed rulemaking (NOPR) that 

addressed the use of sustainable design 

principles for the siting, design, and 

construction of Federal buildings, and 

the use of water conservation 

technologies to achieve energy 

efficiency. This proposed rulemaking 

also provides criteria for identifying a 

certification system and level for green 

buildings that encourages a 

comprehensive and environmentallysound approach to certification of green 

buildings. 75 FR 29933. Today’s rule 

finalizes only the provisions of the 

NOPR that pertained to green building 

certification systems. DOE is continuing 

to assess the sustainable design 

principles in the NOPR in light of an 

ongoing process to revise the 2008 

Guiding Principles for High 

Performance and Sustainable Buildings: 

New Construction and Major 

Renovations (Guiding Principles), 

which served as a basis for those 

provisions of the NOPR. 

DOE recognizes the degree to which 

EISA 2007 requirements for Federal 

agencies to incorporate sustainable 

design principles into new construction 

and major renovations overlap with 

standing Executive Order requirements 

that agencies maintain specific 

sustainable building standards. 

Executive Orders 13423 and 13514 

require that all new Federal 

construction and major renovations 

comply with the Guiding Principles. 

Although using a green building 

certification system is optional, DOE 

recognizes that many agencies use green 

building certification systems to assist 

them in supporting efforts to comply 

with the Guiding Principles. 

Under today’s rule, if an agency 

chooses to use a green building 

certification system, agencies must 

choose a green building certification 

system that meets certain criteria as 

discussed below and agencies are 

encouraged to take into consideration 

GSA’s set of recommendations. DOE 

made one change to the ‘‘green building 

certification system’’ criteria from the 

NOPR by requiring a verification system 

for post-occupancy assessment of the 

rated buildings to demonstrate 

continued energy and water savings at 

least every four years after initial 

occupancy. 

This rule applies to certain new 

Federal buildings, and major 

renovations to Federal buildings, for 

which design for construction began on 

or after October 14, 2015. The new 

Federal buildings, and major 

renovations to Federal buildings 

covered by today’s rule are covered by 

EISA 2007 and include new Federal 

buildings, or major renovations to 

Federal buildings, that are also: (1) 

Public buildings, as defined in 40 U.S.C. 

3301 for which a transmittal of a 

prospectus to Congress is required 

under 40 U.S.C. 3307; or (2) Federal 

buildings for which the construction 

cost or major renovation cost is at least 

$2,500,000 (2007 dollars, adjusted for 

inflation). The term ‘‘Federal building’’ 

means any building to be constructed 

by, or for the use of, any Federal agency. 

The term includes buildings built for 

the purpose of being leased by a Federal 

agency, and privatized military housing. 

(42 U.S.C. 6832) 

II. Discussion of Comments and 

Changes to the Final Rule 

DOE received a wide variety of 

comments from 62 different entities in 

response to the sustainable design 

NOPR. All of the 62 comments 

supported the general premise of this 

rule to improve sustainability in Federal 

buildings. All public comments are 

available for review on the 

regulations.gov Web site under Docket 

Number DOE–EERE–OT–2010–0007. 

Comments that are directly pertinent to 

the green building certification system 

portion of the rule are discussed and 

addressed in greater detail below. 

A. Scope 

Leased Buildings 

EISA 2007 modified the ECPA 

definition of ‘‘Federal building’’ to 

apply to ‘‘any building to be constructed 

by, or for the use of, any Federal agency. 

Such term shall include buildings built 

for the purpose of being leased by a 

Federal agency, and privatized military 

housing.’’ (42 U.S.C. 6832(6)) In the 

NOPR, DOE requested comments on the 

proposed definition of ‘‘new Federal 

building’’ (based on the statutory 

‘‘Federal building’’ definition) and on 

limiting the inclusion of leased 

buildings in the definition of ‘‘Federal 

building’’ to new leased buildings in 

which a Federal agency has significant 

control over the design of the building 

(e.g., ‘‘lease-constructs’’). 75 FR 29934. 

Several commenters, including Indian 

Health Services (IHS) and the U.S. 

Green Building Council (USGBC), 

agreed with DOE’s proposal to limit the 

coverage of leased buildings to those in 

which a Federal agency has ‘‘significant 

control’’ over building design. (IHS, No. 

45 at p. 1 4; Green Mechanical Council 

(GMC), No. 60 at p. 5) Several comments 

suggested that the rule should apply to 

all buildings that the government leases, 

including buildings that the Federal 

agency does not have ‘‘significant 

control’’ over building design. (Kaplow, 

No. 6 at p. 1; U.S. Fuel Cell Council, No. 

13 at p. 2; National Electrical 

Manufacturers Association (NEMA), No. 

36 at p. 3; Solar Energy Industries 

Association (SEIA), No. 58 at pp. 2–3, 

Natural Resources Defense Council 

(NRDC), No. 64 at pp. 3–4; Earthjustice, 

No. 71 at p. 9) DOE has not expressly 

added the ‘‘significant control’’ 

restriction to the rule for leased 

buildings because the ECPA definition 

of ‘‘Federal building’’ includes the 

limitation of buildings that are built 

specifically for the Federal government. 

Construction design for a building built 

specifically for use of the Federal 

government, including under lease to a 

Federal agency, is, presumably, under 

the significant control of the Federal 

owner or Federal lessee. U.S. General 

Services Administration (GSA) 

recommended adding rule language 

stating that leased buildings include 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Rules and Regulations 61565 

5Under ECPA, as amended, today’s rule applies 

to the following EISA-covered buildings: ‘‘New 

Federal buildings and Federal buildings undergoing 

major renovations, with respect to which the 

Administrator of General Services is required to 

transmit a prospectus to Congress under section 

3307 of Title 40, in the case of public buildings (as 

defined in section 3301 of Title 40), or of at least 

$2,500,000 in costs adjusted annually for inflation 

for other buildings,’’ (42 U.S.C. 6834(a)(3)(D)(i)). 

6 DOD–N, No. 25B at p. 8, Docket No. EERE– 

2010–BT–STD–0031. 

projects ‘‘in which the government 

initiates the solicitation of bids 

expressly for the construction of a 

building or facility to meet a Federal 

agency need.’’ (GSA, No. 72 at p. 5) DOE 

agrees that GSA’s proposed clarification 

reflects ECPA, but DOE does not believe 

that GSA’s language need be included in 

today’s rule as the rule specifies that it 

applies to buildings built for the 

purposes of being leased by a Federal 

agency. 

Covered Buildings 

NRDC and Earthjustice commented 

that DOE’s interpretation of the scope of 

buildings covered under statutory 

requirements at 42 U.S.C. 

6834(a)(3)(D)(i) is incorrect. (NRDC, No. 

64 at p. 3; Earthjustice, No. 71 at pp. 7– 

9) These commenters believe that the 

limiting criteria in 42 U.S.C. 

6834(a)(3)(D)(i) 5 apply only to ‘‘major 

renovations’’ and not to new buildings. 

DOE believes that this is an incorrect 

interpretation of the statute for several 

reasons. The first phrase set-off in 

commas (starting with ‘‘with respect to 

which’’) reasonably modifies the 

previous phrase referring to both new 

Federal buildings and those undergoing 

major renovations. The second phrase 

set-off in commas (starting with ‘‘in the 

case of public buildings’’) reasonably 

characterizes the first phrase. The third 

phrase (starting with ‘‘or of at least 

$2,500,000’’) and the ‘‘or’’ that begins 

the phrase indicate that the first and 

second phrases are one factor to apply 

to the subset of buildings at issue and 

the third phrase is another factor to 

apply to this subset of buildings. 

Moreover, if the commenters’ 

interpretation that the limiting factors 

only apply to major renovations was 

correct, then other sections of ECPA 

would be without meaning. Specifically, 

Congress amended ECPA and set 

sustainable design requirements for new 

Federal buildings, if life-cycle costeffective, under EPACT 2005. (See 42 

U.S.C. 6834(a)(3)(A))(i)(II)). Then, in 

EISA 2007, Congress amended ECPA 

again, to apply sustainable design 

requirements to a subset of new Federal 

buildings or major renovations, without 

regard to life-cycle-cost-effectiveness. 

(See 42 U.S.C. 6834(a)(3)(D)(i)). If the 

EISA 2007 amendments applied to all 

new Federal buildings, as commenters 

suggest, then the EPACT 2005 

provisions would be meaningless. While 

Congress could have rescinded the 

earlier EPACT 2005 sustainable design 

provisions, it chose not to and, 

therefore, DOE’s interpretation that 42 

U.S.C. 6834(D)(i) only applies to a 

subset of Federal buildings is 

reasonable. 

In the final rule, DOE removed the 

second EISA 2007 condition, ‘‘public 

buildings’’ (as defined at 40 U.S.C. 

3301) for which a prospectus is required 

from Congress, from the scope of 

coverage for low-rise residential 

buildings. The definition of ‘‘public 

building’’ at 40 U.S.C. 3301 exempts 

buildings and construction projects that 

are on or used in connection with 

housing and residential projects. (See 40 

U.S.C. 3301(a)(5)(C)(vi)) Therefore, 

EISA-covered low-rise residential 

buildings only include those buildings 

with construction costs of at least $2.5 

million. 

Compliance Date of Rule 

DOE received a number of comments 

on the compliance date proposed in the 

NOPR. This compliance date is 

consistent with the compliance date that 

DOE has used for baseline Federal 

building energy efficiency standards at 

10 CFR parts 433 and 435 for several 

years. Under 10 CFR parts 433 and 435, 

‘‘design for construction’’ means the 

stage when the energy efficiency and 

sustainability details (such as insulation 

levels, HVAC systems, water-using 

systems, etc.) are either explicitly 

determined or implicitly included in a 

project cost specification. Agencies that 

have already programmed or budgeted 

for building construction before the 

publication of today’s rule likely have 

not included the costs of complying 

with the requirements of this rule. To 

apply the rule to these buildings would 

likely impose unanticipated costs that 

could compromise important functional 

aspects of the building or agency 

mission. Applying the rule to buildings 

for which design for construction begins 

one year after publication of the final 

rule helps ensure that agencies can 

anticipate and incorporate the cost of 

meeting this rule in the construction 

budget or make other necessary 

adjustments. 

Overseas Facilities 

Comments received on the Fossil Fuel 

Reduction Notice of Proposed 

Rulemaking (‘‘fossil fuel reduction 

NOPR’’) (75 FR 63404) (October 15, 

2010) asked about application of the 

rule to overseas facilities where the 

agency does not have complete control 

over building design, and these 

comments are equally applicable to 

today’s final rule. DOE recognizes that 

several agencies have buildings overseas 

and these buildings may be subject to a 

variety of legal authorities specific to 

that agency. For example, DOD 

commented that an agency may not 

have complete control over the design of 

a new or renovated building or may face 

technical challenges in meeting the 

proposed rule in overseas locations.6

Today’s final rule does not expressly 

address the extent to which it may be 

applicable to buildings overseas as each 

individual agency is best positioned to 

understand the various and sometimes 

unique authorities that may be 

applicable to overseas buildings of that 

agency. However, today’s rule applies to 

overseas facilities to the extent the 

requirements are consistent with 

applicable law. 

Privatized Military Housing 

A public comment on a related DOE 

rulemaking that also proposed to amend 

10 CFR Parts 433 and 435, ‘‘Fossil FuelGenerated Energy Consumption 

Reduction for New Federal Buildings 

and Major Renovations of Federal 

Buildings’’ (75 FR 63404) (October 15, 

2010), stated that DOE needed to clarify 

whether the rule applies to privatized 

military housing. EISA 2007 modified 

the ECPA definition of ‘‘Federal 

building’’ to apply to ‘‘any building to 

be constructed by, or for the use of, any 

Federal agency. Such term shall include 

buildings built for the purpose of being 

leased by a Federal agency, and 

privatized military housing.’’ (42 U.S.C. 

6832(5)) In addition, Congress again 

mentioned privatized military housing 

in EISA 2007 when it specified that, 

‘‘with respect to privatized military 

housing, the Secretary of Defense, after 

consultation with the Secretary [of 

Energy] may, through rulemaking, 

develop alternative criteria to those 

established in subclauses (I) [fossil fuel 

reduction requirements] and (III) 

[sustainable design requirements] of 

clause (i).’’ (42 U.S.C. 6834(a)(3)(D)(vi)) 

With respect to EISA-covered buildings, 

privatized military housing may not 

meet the definition of ‘‘public building’’ 

at 40 U.S.C. 3301(a)(5), but privatized 

military housing with construction costs 

of at least $2.5 million would be EISAcovered buildings. 

Application of $2.5 Million Threshold 

on a Per Building Basis 

Sunnovation encouraged DOE to 

clarify that multi-unit residential 

projects under a single contract should 

mstockstill on DSK4VPTVN1PROD with RULES

61566 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Rules and Regulations 

7Letter and all supporting material may be found 

on GSA’s Web site at http://www.gsa.gov/portal/

content/131983. 

8Letter from Daniel Tangherlini, GSA 

Administrator, to Ernest Moniz, Secretary of 

Energy, dated October 25, 2013. 

be considered jointly when determining 

whether the $2.5 million threshold is 

met, as opposed to applying the $2.5 

million threshold per building. 

(Sunnovation, No. 28 at p. 2) The cost 

threshold applies on a per building 

basis. EISA 2007 sets requirements for 

‘‘new Federal buildings and Federal 

buildings undergoing major 

renovations.’’ (See 42 U.S.C. 

6834(a)(3)(D)(i)(I)) Nothing in the statute 

states that this threshold applies across 

multiple buildings that are part of one 

project. 

B. Green Building Certification 

Compliance With Other Requirements 

DOE requested comments as to 

whether the minimum allowable level 

for green building rating systems should 

comply with the Guiding Principles and 

all applicable executive orders. 75 FR 

29939. The DOI stated that ‘‘If federal 

buildings, however, are designed, built, 

and perform in accordance with 

legislative mandates, the Guiding 

Principles, and all applicable executive 

orders, they are inherently green 

buildings . . . Seeking an additional 

green building rating is redundant.’’ 

(DOI, No. 44 at p. 7) GSA commented 

that it should not be necessary to 

mandate minimum rating levels. (GSA, 

No. 72 at p. 12) As today’s rule 

explicitly states, DOE is not requiring 

Federal agencies to use a green building 

certification system. Federal agencies 

may wish to use a green building rating 

system as a tool to help them meet the 

Guiding Principles or their own internal 

sustainability goals, although agencies 

are not required to use such a system. 

DOE encourages Federal agencies to 

consider GSA’s 2013 recommendations 

when choosing a green building 

certification system.7 DOE notes that 

under Executive Orders 13423 and 

13514, Federal agencies are already 

required to ensure that new 

construction and major renovations of 

agency buildings comply with the 

Guiding Principles. In today’s rule, DOE 

requires that agencies should select a 

green building certification system that 

meets the prescribed criteria and a level 

of certification that promotes attainment 

of the Guiding Principles. 

Independent Third-Party Verification 

GSA said that DOE needs to clarify 

the concept of third-party verification of 

green building rating systems. (GSA, No. 

72 at p. 12) DOE notes that the rule, 

based on the statutory requirement at 42 

U.S.C. 6834(a)(3)(D)(iii), requires that 

the system under which the building is 

certified must allow assessors and 

auditors to independently verify the 

criteria and measurement metrics of the 

system. To independently verify the 

criteria and measurement metrics, 

assessors and auditors must be free from 

bias (financial or otherwise) when they 

evaluate a building for compliance with 

a green rating system. Federal agencies 

seeking certification from a green 

building rating system cannot assert that 

assessors and auditors employed by the 

agency are independent. DOE notes that 

Federal agencies that use a green 

building rating system do not have to 

use assessors and auditors, but must 

ensure that the green building rating 

system that it chooses allows for 

independent verification from assessors 

and auditors. 

Choosing a Green Building Certification 

System 

As required by Section 436(h) of EISA 

2007, in 2008 GSA identified LEED 

Silver as a green rating system and level 

that meets the criteria expressly 

identified in the statute. DOE requested 

comment on other green rating systems 

and associated levels/points that also 

would meet the statutory criteria. 75 FR 

29939. Subsequently, on October 25, 

2013, GSA recommended that Federal 

agencies achieve at least a Silver rating 

from LEED or 2 Green Globes from the 

Green Building Initiative for new 

construction and/or major renovations 

in order to meet the statutory criteria.8

GBI asked that DOE recognize GBI’s 

Green Globes as a certification system 

that meets all of the criteria called for 

in the NOPR, noting that Federal 

agencies should achieve Two Green 

Globes for compliance with the rule. 

(GBI, No, 25 at p. 7) There were many 

comments expressing support for the 

Green Globes rating system. (Duro-Last 

Roofing, No. 3 at p. 1; Arch Wood 

Protection, No. 7 at p. 1; Plastic Pipe 

and Fitting Association, No. 9 at p. 2; 

Iowa Department of Public Safety, No. 

18 at p. 2; the FVA, No. 21 at p. 1; the 

NACGB, No. 24 at p. 3; the Sustainable 

Forest Initiative, No. 26 at pp. 1–2, the 

Hardwood Foundation, No. 27 at p. 4, 

The Sika Corporation, No. 42 at p. 1; 

Greenguard Environmental Institute, 

No. 46 at p. 5; the Sustainable Forestry 

Initiative, No. 52 at p. 2; AF&PA/AWC, 

No. 59 at p. 6; the American Forest 

Foundation, No. 61 at p. 3; and the 

RFCI, No. 63 at p. 7) Many of the 

supporters of Green Globes stressed that 

the system was ANSI-certified and 

considered ANSI certification to be 

important. DOE is aware that neither 

Green Globes nor LEED is an ANSIcertified system. Also, as GSA noted in 

its review of the main commercial green 

building rating systems, neither system 

fully aligned with Federal sustainable 

building requirements. 

Others recommended that the LEED 

system be approved for use in Federal 

buildings. (USGBC, No. 60 at p. 8; Stuart 

D. Kaplow, No. 6 at p. 2; GSA Region 

8, No. 33 at p. 4; Iowa Department of 

Public Safety, No. 18 at p. 1; NEMA, No. 

36 at p. 6; IHS, No. 45 at p. 3; 

Greenguard Environmental Institute, 

No. 46 at p. 5; SEIU, No. 67 at p. 2; GSA, 

No. 72 at p. 14) Weyerhaeuser opposed 

the endorsement of LEED, mentioning 

LEED is not ANSI-certified. 

(Weyerhaeuser, No. 62 at p. 4) A 

substantial number of comments 

addressing forestry and wood 

certification considerations expressed 

opposition to how the USGBC LEED 

rating system addresses certified wood 

products and questioned whether LEED 

is developed via a consensus-based 

process. (AWC No. 22 at p. 4; SFI, No. 

26 at p. 2; Hardwood Federation No. 51 

at p. 2; AF&PA/AWC, No. 59 at p. 8; the 

American Forest Foundation, No. 61 at 

p. 3; Weyerhaeuser, No. 62 at pp. 3–4) 

LEED is not developed by the Federal 

government and, therefore, DOE cannot 

comment on the content of their rating 

system. The National Park Service 

recommended allowing other rating 

systems to be used, not just the USGBC 

LEED system. (NPS, No. 20 at p. 1) 

NEMA advocated that a separate 

energy specific rating system such as 

ENERGY STAR Buildings be mandated. 

(NEMA, No. 36 at p. 6) The Sustainable 

Forestry Initiative expressed support for 

Built Green Canada. (SFI, No. 52 at p. 

2) ASHRAE suggested that ASHRAE’s 

Building Energy Quotient (Building EQ) 

labeling program may meet DOE’s green 

building certification needs. (ASHRAE, 

No. 30 at p. 6) AGA expressed support 

for Green Globes, LEED, and Building 

EQ, the International Green 

Construction Code, and ASHRAE 

Standard 189.1–2009. (AGA, No. 50 at. 

p. 2) 

For residential buildings, a number of 

commenters expressed support for the 

NAHB and ICC’s National Green 

Building Standard ICC–700–2008. 

(Plastic Pipe and Fittings Association, 

No. 9 at p. 2; ICC, No. 31 at p. 2; IHS, 

No. 45 at p. 3, Sustainable Forest 

Initiative, No. 52 at p. 2; NAHB, No. 55 

at p. 2, and the RFCI, No. 63 at p. 5) 

DOE received numerous comments 

opposing and numerous comments 

supporting DOE choosing one or several 

green building certification systems that 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Rules and Regulations 61567 

9See https://www.wbdg.org/ccb/GSAMAN/

gsaleed.pdf. 

meet the requirements in the sustainable 

design NOPR. The Society of the 

Plastics Industry and several other 

commenters expressed support for 

allowing flexibility for agencies in 

choosing a green building rating system. 

(SPI, No. 38 at p. 1) Many public 

comments from supporters of Green 

Globes commended this approach 

because it allows agencies options for 

using systems tailored to their needs. 

(AWC, No. 22 at p. 3; The Vinyl 

Institute, No. 23 at p. 1; NACGB, No. 24 

at p. 2; Sustainable Forest Initiative, No. 

26 at p. 2) . Several commenters, 

including the RFCI and the NACGB, 

recommended that DOE determine 

which green rating systems are 

acceptable for use for Federal buildings. 

(RFCI, No. 63 at p. 10; NACGB, No. 65 

at p. 6) 

DOE is not approving by this rule any 

specific green building rating systems 

for use in new Federal buildings and 

major renovations. Instead, DOE is 

specifying in regulation criteria for 

determining acceptable green building 

rating systems to allow agencies 

flexibility in choosing a rating system, 

including the possibility of using new or 

improved rating systems that are not 

currently available or known. In this 

way, DOE is allowing Federal agencies 

to use the system most appropriate for 

their buildings. Any rating system 

complying with the criteria outlined in 

today’s rule shall be permitted. DOE 

also encourages Federal agencies to 

consider GSA’s 2013 green building 

certification system recommendations. 

In addition, after the GSA Office of High 

Performance Green Federal Buildings 

completes its next analysis of green 

rating systems as required by EISA 2007 

Section 436(h), DOE will review GSA’s 

results and may seek to amend the 

criteria established in today’s rule. 

One commenter asked what is meant 

by the phrase ‘‘consensus process’’ in 

the rule. (Myers, No. 53 at p 2) For 

purposes of today’s rule, DOE clarifies 

that a ‘‘consensus-based’’ process is a 

group decision-making process that 

seeks not only the agreement of most 

participants, but also the resolution or 

mitigation of minority objections. 

NEMA recommended that DOE 

consider the use of existing certification 

systems that address occupied buildings 

and make any additional criteria of 

importance known to the certification 

bodies. (NEMA, No. 36 at p. 6) NAVFAC 

stated DOE should provide additional 

alternatives for verifying postoccupancy the continued energy and 

environmental performance of new and 

renovated buildings. (NAVFAC, No. 47 

at p. 8) The final rule requires that the 

certification system include a 

verification system to demonstrate 

continued energy and water savings at 

least every four years after initial 

occupancy. Requiring the demonstration 

every four years will make the 

frequency consistent with other Federal 

building audit cycles such as the energy 

and water evaluations required under 

EISA Section 432. 

Internal Certification Process 

ECPA gives DOE the option of 

including a section in the rulemaking 

that would permit Federal agencies to 

develop internal green building 

certification processes to rate their 

buildings. (42 U.S.C. 6834(a)(3)(D)(v)) 

The NOPR proposed allowing agencies 

to request DOE approval of internal 

green building certification processes. 

GSA commented that agencies should 

not be allowed to self-certify buildings 

through an internal green building 

certification process. (GSA, No. 72 at p. 

12) DOI asked for clarification regarding 

whether the DOI Sustainable Building 

Assessment and Compliance Tool or the 

ENERGY STAR Portfolio Manager are 

considered internal green building 

rating systems. (DOI, No. 44 at p. 6) In 

the final rule, DOE has not included 

provisions on internal green building 

rating systems as contained in the 

proposed rule because DOE’s decision 

to allow agencies to use any green 

building rating system that meets the 

criteria in today’s rule makes this 

provision unnecessary. In addition, 

regardless of any regulatory text, under 

today’s rule, Federal agencies that 

choose not to use green building rating 

system, such as LEED or Green Globes, 

can use any appropriate, internal system 

to ensure that any new Federal 

buildings or major renovations of 

Federal buildings meet the requirements 

in today’s rule. 

Effect on State and Local Governments 

NAHB expressed concern that 

‘‘today’s mandates for federal buildings 

will morph into requirements for private 

development’’ because many state and 

local governments shadow Federal 

rulemakings. (NAHB, no. 55 at p. 5) 

DOE notes NAHB’s concern, but the 

Federal government has a statutory 

obligation to lead by example. (See 42 

U.S.C. 6831) State and local 

governments and private entities have 

no obligation to adopt any elements of 

today’s rule. 

Codifying EISA Life-Cycle Limit 

Additionally, today’s final rule 

amends the life-cycle analysis 

provisions established in 10 CFR part 

436 subpart A. Section 544 of the 

National Energy Conservation Policy 

Act (NECPA) directed DOE to establish 

practical and effective present value 

methods for estimating and comparing 

life-cycle costs for Federal buildings, 

based on capital and operating costs 

during a period of the expected life of 

the building’s energy system or 25 years, 

whichever is shorter. DOE established 

life-cycle cost analyses methodologies 

and procedures in 10 CFR part 436 

subpart A. Section 441 of EISA 2007 

amended section 544 of NECPA by 

replacing the 25 year limit with a 40 

year limit. (See, 42 U.S.C. 8254(a)(1)) 

Today’s final rule amends the life-cycle 

costs analyses regulations to reflect the 

statutory change. Because the 

amendment to part 436 involves a 

nondiscretionary changes, the 

Department finds that public notice and 

comment are unnecessary pursuant to 5 

U.S.C. 553(b)(B). 

III. Regulatory Analyses 

A. Review Under Executive Order 12866 

and 13563 

Today’s final rule is a ‘‘significant 

regulatory action’’ under Executive 

Order 12866, ‘‘Regulatory Planning and 

Review.’’ 58 FR 51735 (October 4, 1993). 

Accordingly, today’s action was subject 

to review by the Office of Information 

and Regulatory Affairs in the Office of 

Management and Budget (OMB). OMB 

has completed its review. DOE has also 

reviewed this regulation pursuant to 

Executive Order 13563, issued on 

January 18, 2011. 76 FR 3281 (January 

21, 2011). EO 13563 is supplemental to 

and explicitly reaffirms the principles, 

structures, and definitions governing 

regulatory review established in 

Executive Order 12866. 

DOE expects that Federal building 

construction costs will increase as a 

result of this rule and the cost increase 

will vary from project to project. A 2004 

study commissioned by GSA entitled 

GSA LEED Cost Study estimates that a 

Gold certification under the LEED rating 

system will increase the cost of a midrise Federal courthouse or office 

building by 1.4% to 8.1%.9

Given that green building certification 

for Federal buildings is voluntary, DOE 

can only make assumptions about the 

amount of Federal agency participation 

and costs that such a certification might 

entail. The cost impact for any building 

will vary depending upon the level of 

green building certification being 

pursued, the square footage of the 

building and the degree of service the 

agency expects from a certification body 

such as LEED or Green Globes in order 

to review the design of the building. 

mstockstill on DSK4VPTVN1PROD with RULES

61568 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Rules and Regulations 

Existing Federal requirements mandate 

that construction of new Federal 

buildings be at a level of performance 

that meets the current ASHRAE or IECC 

specification, or 30% beyond the 

current ASHRAE or IECC specification, 

if life-cycle cost effective. Any added 

costs incurred associated with this 

rulemaking due to the agency 

voluntarily certifying that building as 

meeting a green building rating system 

will likely be as a result of the process 

of seeking and obtaining that 

certification. 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires the 

preparation of an initial regulatory 

flexibility analysis for any rule that by 

law must be proposed for public 

comment, unless the agency certifies 

that the rule, if promulgated, will not 

have a significant economic impact on 

a substantial number of small entities. 

As required by Executive Order 13272, 

Proper Consideration of Small Entities 

in Agency Rulemaking, 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the 

rulemaking process (68 FR 7990). The 

Department has made its procedures 

and policies available on the Office of 

General Counsel’s Web site: http://

www.gc.doe.gov. 

DOE has reviewed today’s rule under 

the provisions of the Regulatory 

Flexibility Act and the procedures and 

policies published on February 19, 

2003. Today’s rulemaking applies only 

to the design and construction of new 

Federal buildings and major renovation 

to Federal buildings. As such, the only 

entities directly regulated by this 

rulemaking would be Federal agencies. 

DOE does not believe that there will be 

any impacts on small entities such as 

small businesses, small organizations, or 

small governmental jurisdictions. 

On the basis of the foregoing, DOE 

certified that the proposed rule would 

not have a significant economic impact 

on a substantial number of small 

entities. DOE received no comments on 

the impact of the proposed rule on small 

entities. As a result, DOE has adopted 

the prior certification without change. 

C. Review Under the Paperwork 

Reduction Act of 1995 

This rulemaking will impose no new 

information or record keeping 

requirements. Accordingly, Office of 

Management and Budget (OMB) 

clearance is not required under the 

Paperwork Reduction Act. (44 U.S.C. 

3501 et seq.) 

D. Review Under the National 

Environmental Policy Act of 1969 

DOE prepared an Environmental 

Assessment (EA) entitled, 10 CFR 433, 

‘‘Energy Efficiency Standards for the 

Design and Construction of New Federal 

Commercial and Multi-Family HighRise Residential Buildings’’ and 10 CFR 

435, ‘‘Energy Efficiency Standards for 

the Design and Construction of New 

Federal Residential Low-Rise 

Residential Buildings’’ pursuant to the 

Council on Environmental Quality’s 

(CEQ) Regulations for Implementing the 

Procedural Provisions of the National 

Environmental Policy Act (40 CFR parts 

1500–1508), the National Environmental 

Policy Act of 1969 (NEPA), as amended 

(42 U.S.C. 4321 et seq.), and DOE’s 

NEPA Implementing Procedures (10 

CFR part 1021). 

The EA addresses the possible 

environmental effects attributable to the 

implementation of the final rule. Under 

today’s rule, if an agency chooses to use 

a green building certification system to 

certify its buildings for any purpose, the 

chosen green building certification 

system must meet certain criteria 

established by the rule. The rule is not 

expected to cause any adverse health 

effects, and thus would have no 

environmental justice impacts affecting 

low-income or minority populations. 

The rule would not have an adverse 

effect on historic or archaeological sites, 

and would not be affected by a terrorist 

act. The rule will have no significant 

impact on sensitive environmental 

resources, including wetlands/

floodplains, prime agricultural lands, 

endangered species, and sensitive 

ecosystems. Therefore, DOE has issued 

a Finding of No Significant Impact 

(FONSI), pursuant to NEPA, the 

regulations of the Council on 

Environmental Quality (40 CFR parts 

1500–1508), and DOE’s regulations for 

compliance with NEPA (10 CFR part 

1021). 

E. Review Under Executive Order 13132, 

‘‘Federalism’’ 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 4, 1999), imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have federalism implications. The 

Executive Order requires agencies to 

examine the constitutional and statutory 

authority supporting any action that 

would limit the policymaking discretion 

of the States and to carefully assess the 

necessity for such actions. The 

Executive Order also requires agencies 

to have an accountable process to 

ensure meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications. On March 

14, 2000, DOE published a statement of 

policy describing the intergovernmental 

consultation process it will follow in the 

development of such regulations. (65 FR 

13735) DOE examined this rule and 

determined that it does not preempt 

State law and does not have a 

substantial direct effect on the States, on 

the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of Government. No further action 

is required by Executive Order 13132. 

F. Review Under Executive Order 12988, 

‘‘Civil Justice Reform’’ 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (February 7, 1996), 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; and 

(3) provide a clear legal standard for 

affected conduct, rather than a general 

standard and promote simplification 

and burden reduction. Section 3(b) of 

Executive Order 12988 specifically 

requires that Executive agencies make 

every reasonable effort to ensure that the 

regulation: (1) Clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct, 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met 

or it is unreasonable to meet one or 

more of them. DOE has completed the 

required review and determined that, to 

the extent permitted by law, this rule 

meets the relevant standards of 

Executive Order 12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4) requires each Federal agency to 

assess the effects of Federal regulatory 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Rules and Regulations 61569 

actions on State, local, and tribal 

governments and the private sector. For 

a proposed regulatory action likely to 

result in a rule that may cause the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish a written 

statement that estimates the resulting 

costs, benefits, and other effects on the 

national economy. (2 U.S.C. 1532(a) and 

(b)) The UMRA also requires a Federal 

agency to develop an effective process 

to permit timely input by elected 

officers of State, local, and tribal 

governments on a proposed ‘‘significant 

intergovernmental mandate,’’ and 

requires an agency plan for giving notice 

and opportunity for timely input to 

potentially affected small governments 

before establishing any requirements 

that might significantly or uniquely 

affect small governments. On March 18, 

1997, DOE published a statement of 

policy on its process for 

intergovernmental consultation under 

UMRA (62 FR 12820) (also available at 

http://www.gc.doe.gov). This final rule 

contains neither an intergovernmental 

mandate nor a mandate that may result 

in the expenditure of $100 million or 

more in any year by State, local, and 

tribal governments, in the aggregate, or 

by the private sector so these 

requirements under the Unfunded 

Mandates Reform Act do not apply. 

H. Review Under the Treasury and 

General Government Appropriations 

Act of 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

final rule would not have any impact on 

the autonomy or integrity of the family 

as an institution. Accordingly, DOE has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

I. Review Under Executive Order 12630, 

‘‘Governmental Actions and 

Interference With Constitutionally 

Protected Property Rights’’ 

The Department has determined, 

under Executive Order 12630, 

‘‘Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights,’’ 53 FR 8859 (March 18, 1988), 

that this rule would not result in any 

takings which might require 

compensation under the Fifth 

Amendment to the United States 

Constitution. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

Section 515 of the Treasury and 

General Government Appropriations 

Act, 2001 (44 U.S.C. 3516, note) 

provides for agencies to review most 

disseminations of information to the 

public under guidelines established by 

each agency pursuant to general 

guidelines issued by OMB. OMB’s 

guidelines were published at 67 FR 

8452 (February 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (October 7, 2002). DOE has 

reviewed today’s final rule under the 

OMB and DOE guidelines and has 

concluded that it is consistent with 

applicable policies in those guidelines. 

K. Review Under Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to the Office of 

Information and Regulatory Affairs 

(OIRA), Office of Management and 

Budget, a Statement of Energy Effects for 

any proposed significant energy action. 

A ‘‘significant energy action’’ is defined 

as any action by an agency that 

promulgated or is expected to lead to 

promulgation of a final rule, and that: 

(1) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; and (2) is likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy, or 

(3) is designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

This final rule would not have a 

significant adverse effect on the supply, 

distribution, or use of energy and, 

therefore, is not a significant energy 

action. Accordingly, DOE has not 

prepared a Statement of Energy Effects. 

IV. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of this rule prior to its effective date. 

The report will state that it has been 

determined that the rule is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

List of Subjects 

10 CFR Parts 433 and 435 

Buildings and facilities, Energy 

conservation, Engineers, Federal 

buildings and facilities, Housing, 

Incorporation by reference, Sustainable 

design. 

10 CFR Part 436 

Energy conservation, Federal 

buildings and facilities, Reporting and 

recordkeeping, Requirements, Solar 

energy. 

Issued in Washington, DC, on October 3, 

2014. 

David T. Danielson, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy. 

For the reasons set out in the 

preamble, the Department of Energy 

amends chapter II of title 10 of the Code 

of Federal Regulations as set forth 

below: 

PART 433—ENERGY EFFICIENCY 

STANDARDS FOR THE DESIGN AND 

CONSTRUCTION OF NEW FEDERAL 

COMMERCIAL AND MULTI–FAMILY 

HIGH–RISE RESIDENTIAL BUILDINGS 

■ 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. Revise the part heading for part 433 

as set forth above. 

■ 3. In § 433.1: 

■ a. Redesignate the existing text as 

paragraph (a); 

■ b. Add and reserve paragraph (b); and 

■ c. Add paragraph (c) to read as 

follows: 

§ 433.1 Purpose and scope. 

* * * * * 

(c) This part also establishes green 

building certification requirements for 

new Federal buildings that are 

commercial and multi-family high-rise 

residential buildings and major 

renovations to Federal buildings that are 

commercial and multi-family high-rise 

residential buildings, for which design 

for construction began on or after 

October 14, 2015. 

§ 433.3 [Amended] 

■ 4. In § 433.3 in paragraphs (b)(1), 

(b)(2) and (b)(3) remove ‘‘433.4, 433.5’’ 

and add in their place ‘‘433.100, and 

433.101.’’ 

§§ 433.4 through 433.7 [Removed and 

Reserved] 

■ 5. Remove and reserve §§ 433.4 

through 433.7. 

■ 6. Add subpart A to part 433 to read 

as follows: 

mstockstill on DSK4VPTVN1PROD with RULES

61570 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Rules and Regulations 

Subpart A—Energy Efficiency Performance 

Sec. 

433.100 Energy efficiency performance 

standard. 

433.101 Performance level determination. 

Subpart A—Energy Efficiency 

Performance 

§ 433.100 Energy efficiency performance 

standard. 

(a) (1) All Federal agencies shall 

design new Federal buildings that are 

commercial and multi-family high-rise 

residential buildings, for which design 

for construction began on or after 

January 3, 2007, but before August 10, 

2012, to: 

(i) Meet ASHRAE 90.1–2004, 

(incorporated by reference, see § 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. 

(3) All Federal agencies shall design 

new Federal buildings that are 

commercial and multi-family high-rise 

residential buildings, for which design 

for construction began on or after July 

9, 2014, to: 

(i) Meet ASHRAE 90.1–2010, 

(incorporated by reference, see § 433.3); 

and 

(ii) If life-cycle cost-effective, achieve 

energy consumption levels, calculated 

consistent with paragraph (b) of this 

section, that are at least 30 percent 

below the levels of the ASHRAE 

Baseline Building 2010. 

(b) Energy consumption for the 

purposes of calculating the 30 percent 

savings shall include space heating, 

space cooling, ventilation, service water 

heating, lighting and all other energy 

consuming systems normally specified 

as part of the building design except for 

receptacle and process loads. 

(c) If a 30 percent reduction is not lifecycle cost-effective, the design of the 

proposed building shall be modified so 

as to achieve an energy consumption 

level at or better than the maximum 

level of energy efficiency that is lifecycle cost-effective, but at a minimum 

complies with paragraph (a) of this 

section. 

§ 433.101 Performance level 

determination. 

(a)(1) For Federal buildings for which 

design for construction began on or after 

January 3, 2007, but before August 10, 

2012, each Federal agency shall 

determine energy consumption levels 

for both the ASHRAE Baseline Building 

2004 and proposed building by using 

the Performance Rating Method found 

in Appendix G of ASHRAE 90.1–2004 

(incorporated by reference, see § 433.3), 

except the formula for calculating the 

Performance Rating in paragraph G1.2 

shall read as follows: 

(i) 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): 

(ii) 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: 

(i) 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): 

(ii) Percentage improvement = 100 × 

(Baseline building consumption— 

Proposed building consumption)/

(Baseline building consumption— 

Receptacle and process loads). 

(3) For Federal buildings for which 

design for construction began on or after 

July 9, 2014, each Federal agency shall 

determine energy consumption levels 

for both the ASHRAE Baseline Building 

2007 and proposed building by using 

the Performance Rating Method found 

in Appendix G of ASHRAE 90.1–2010 

(incorporated by reference, see § 433.3), 

except the formula for calculating the 

Performance Rating in paragraph G1.2 

shall read as follows: 

(i) 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): 

(ii) Percentage improvement = 100 × 

(Baseline building consumption— 

Proposed building consumption)/

(Baseline building consumption— 

Receptacle and process loads). 

(b) Each Federal agency shall consider 

laboratory fume hoods and kitchen 

ventilation systems as part of the 

ASHRAE-covered HVAC loads subject 

to the 30 percent savings requirements, 

rather than as process loads. 

■ 7. Add and reserve subpart B to part 

433 to read as follows: 

Subpart B—Reduction in Fossil FuelGenerated Energy Consumption 

[Reserved] 

■ 8. Add subpart C to part 433 to read 

as follows: 

Subpart C—Green Building 

Certification for Federal Buildings 

§ 433.300 Green building certification. 

(a) If a Federal agency chooses to use 

a green building certification system to 

certify a new Federal building or a 

Federal building undergoing a major 

renovation and such building is also 

either a public building (as defined in 

40 U.S.C. 3301) for which transmittal of 

a prospectus to Congress is required 

under 40 U.S.C. 3307, or a Federal 

building for which estimated new 

building or major renovation design and 

construction costs are at least 

$2,500,000 (in 2007 dollars, adjusted for 

inflation), and design for construction 

began on or after October 14, 2015. 

(b) The system under which the 

building is certified must: 

(1) Allow assessors and auditors to 

independently verify the criteria and 

measurement metrics of the system; 

(2) Be developed by a certification 

organization that: 

(i) Provides an opportunity for public 

comment on the system; and 

(ii) Provides an opportunity for 

development and revision of the system 

through a consensus-based process; 

(3) Be nationally recognized within 

the building industry; 

(4) Be subject to periodic evaluation 

and assessment of the environmental 

and energy benefits that result under the 

rating system; and 

(5) Include a verification system for 

post-occupancy assessment of the rated 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Rules and Regulations 61571 

buildings to demonstrate continued 

energy and water savings at least every 

four years after initial occupancy. 

(c) Certification level. The building 

must be certified to a level that 

promotes the high performance 

sustainable building guidelines 

referenced in Executive Order 13423 

‘‘Strengthening Federal Environmental, 

Energy, and Transportation 

Management’’ and Executive Order 

13514 ‘‘Federal Leadership in 

Environmental, Energy and Economic 

Performance.’’ 

PART 435—ENERGY EFFICIENCY 

STANDARDS FOR THE DESIGN AND 

CONSTRUCTION OF NEW FEDERAL 

LOW-RISE RESIDENTIAL BUILDINGS 

■ 9. The authority citation for part 435 

continues to read as follows: 

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

6835; 42 U.S.C. 7101 et seq. 

■ 10. The heading for part 435 is revised 

to read as set forth above. 

■ 11. In § 435.1: 

■ a. Redesignate the existing text as 

paragraph (a); 

■ b. Add and reserve paragraph (b); and 

■ c. Add paragraph (c) to read as 

follows: 

§ 435.1 Purpose and scope. 

* * * * * 

(c) This part also establishes green 

building certification requirements for 

new Federal buildings that are low-rise 

residential buildings and major 

renovations to Federal buildings that are 

low-rise residential buildings, for which 

design for construction began on or after 

October 14, 2015. 

§§ 435.6 and 435.7 [Removed] 

■ 12. Remove §§ 435.6 and 435.7. 

§ 435.8 [Redesignated as § 435.6] 

■ 13. Section 435.8 is redesignated as 

§ 435.6. 

Subparts B and C of Part 435 

[Redesignated] 

■ 14. Redesignate subparts B and C of 

part 435 as subparts D and E of part 435. 

■ 15. Redesignate §§ 435.300 through 

435.306 as §§ 435.500 through 435.506 

respectively. 

■ 16. Add and reserve a new subpart B 

to read as follows: 

Subpart B—Reduction in Fossil FuelGenerated Energy Consumption 

[Reserved] 

■ 17. Add a new subpart C to read as 

follows: 

Subpart C—Green Building 

Certification for Federal Buildings 

§ 435.300 Green building certification. 

(a) If a Federal agency chooses to use 

a green building certification system to 

certify a new Federal building or a 

Federal building undergoing a major 

renovation and construction costs for 

such new building or major renovation 

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

adjusted for inflation), and design for 

construction began on or after October 

14, 2015: 

(b) The system under which the 

building is certified must: 

(1) Allow assessors and auditors to 

independently verify the criteria and 

measurement metrics of the system; 

(2) Be developed by a certification 

organization that 

(i) Provides an opportunity for public 

comment on the system; and 

(ii) Provides an opportunity for 

development and revision of the system 

through a consensus-based process; 

(3) Be nationally recognized within 

the building industry; 

(4) Be subject to periodic evaluation 

and assessment of the environmental 

and energy benefits that result under the 

rating system; and 

(5) Include a verification system for 

post occupancy assessment of the rated 

buildings to demonstrate continued 

energy and water savings at least every 

four years after initial occupancy. 

(c) Certification level. The building 

must be certified to a level that 

promotes the high performance 

sustainable building guidelines 

referenced in Executive Order 13423 

‘‘Strengthening Federal Environmental, 

Energy, and Transportation 

Management’’ and Executive Order 

13514 ‘‘Federal Leadership in 

Environmental, Energy and Economic 

Performance.’’ 

PART 436—FEDERAL ENERGY 

MANAGEMENT AND PLANNING 

PROGRAMS 

■ 18. The authority citation for part 436 

is revised to read as follows: 

Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 

8254; 42 U.S.C. 8258; 42 U.S.C. 8259b. 

Subpart A—Methodology and 

Procedures for Life Cycle Cost 

Analyses 

■ 19. Revise § 436.14(d) to read as 

follows: 

§ 436.14 Methodological assumptions. 

* * * * * 

(d) Each Federal agency shall assume 

that the appropriate study period is as 

follows: 

(1) For evaluating and ranking 

alternative retrofits for an existing 

Federal building, the study period is the 

expected life of the retrofit, or 40 years 

from the beginning of beneficial use, 

whichever is shorter. 

(2) For determining the life cycle costs 

or net savings of mutually exclusive 

alternatives for a given building energy 

system or building water system (e.g., 

alternative designs for a particular 

system or size of a new or retrofit 

building energy system or building 

water system), a uniform study period 

for all alternatives shall be assumed 

which is equal to— 

(i) The estimated life of the mutually 

exclusive alternative having the longest 

life, not to exceed 40 years from the 

beginning of beneficial use with 

appropriate replacement and salvage 

values for each of the other alternatives; 

or 

(ii) The lowest common multiple of 

the expected lives of the alternative, not 

to exceed 40 from the beginning of 

beneficial use with appropriate 

replacement and salvage values for each 

alternative. 

(3) For evaluating alternative designs 

for a new Federal building, the study 

period extends from the base year 

through the expected life of the building 

or 40 years from the beginning of 

beneficial use, whichever is shorter. 

* * * * * 

[FR Doc. 2014–24150 Filed 10–10–14; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

15 CFR Part 774 

[Docket No. 140131087–4087–01] 

RIN 0694–AG08 

Revisions to the Commerce Control 

List: Imposition of Controls on 

Integrated Circuits, Helicopter Landing 

System Radars, Seismic Detection 

Systems, and Technology for IR UpConversion Devices 

AGENCY: Bureau of Industry and 

Security, Commerce. 

ACTION: Interim final rule with request 

for comments. 

SUMMARY: In this rule, the Bureau of 

Industry and Security (BIS) amends the 

Export Administration Regulations 

(EAR) to impose foreign policy controls 

on read-out integrated circuits and 

related ‘‘software’’ and ‘‘technology,’’ 

radar for helicopter autonomous landing 

systems, seismic intrusion detection 

mstockstill on DSK4VPTVN1PROD with RULES