FR Doc E7-24615

[Federal Register: December 21, 2007 (Volume 72, Number 245)]
[Rules and Regulations]
[Page 72565-72571]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de07-2]

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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Parts 433, 434, and 435

[Docket No. EE-RM/STD-02-112]
RIN 1904-AB13

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

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

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (DOE) is adopting with changes
the interim final rule published on December 4, 2006 (71 FR 70275) that
implemented provisions in the Energy Policy Act of 2005 that require
DOE to establish revised energy efficiency performance standards for
the construction of all new Federal buildings. The standards in today's
final rule apply to commercial and multi-family high-rise residential
buildings and low-rise residential buildings, as designed and
constructed.

DATES: This rule is effective January 22, 2008.

FOR FURTHER INFORMATION CONTACT: For technical issues contact Cyrus
Nasseri, U.S. Department of Energy, Office of Energy Efficiency and
Renewable Energy, Federal Energy Management Program, EE-2L, 1000
Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-9138, e-
mail: cyrus.nasseri@ee.doe.gov. For legal issues contact Chris
Calamita, U.S. Department of Energy, Office of the General Counsel,
Forrestal Building, GC-72, 1000 Independence Avenue, SW., Washington,
DC 20585, (202) 586-1777, e-mail: Christopher.Calamita@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction
A. Background
B. Interim Final Rule
C. Summary of the Final Rule
II. Discussion of Comments and Changes to the Interim Final Rule
III. Regulatory Analyses
IV. Congressional Notification
V. Approval of the Office of the Secretary

I. Introduction

A. Background

Section 305 of the Energy Conservation and Production Act (ECPA),
as amended by the Energy Policy Act of 1992 (Pub. L. 102-486) requires
DOE to establish building energy efficiency standards for all new
Federal buildings. (42 U.S.C. 6834) Section 305(a)(1) requires
standards that contain energy efficiency measures that are
technologically feasible and economically justified but, at a minimum,
require the subject buildings to meet the energy saving and renewable
energy specifications in the applicable voluntary consensus energy code
specified in section 305(a)(2). (42 U.S.C. 6834(a)(1) and (2))
Until amended by the Energy Policy Act of 2005 (EPAct 2005; Pub. L.
109-58), section 305(a)(2) set the minimum or baseline standards as the
CABO (Council of American Building Officials) Model Energy Code, 1992
(for residential buildings) and ASHRAE (American Society of Heating,
Refrigerating, and Air-Conditioning Engineers) Standard 90.1-1989 (for
commercial and multi-family high rise residential buildings). Section
305(a)(2)(C) of ECPA requires that DOE consider, in consultation with
the Environmental Protection Agency and other Federal agencies, and
where appropriate, measures regarding radon and other indoor air
pollutants.
Section 306(a)(1) of ECPA provides that each Federal agency 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)(1)) Additionally, section
306(a)(2) extends the requirements for new Federal buildings
established under section 305 to buildings under the jurisdiction of
the Architect of the Capitol. (42 U.S.C. 6835(a)(2)) 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
exceeds the applicable Federal building energy standards established
under section 305. (42 U.S.C. 6835(b))
DOE established Federal building standards under ECPA and initially
placed both the commercial and residential standards in Part 435 of
Title 10 of the Code of Federal Regulations (CFR). In a final rule
published on October 6, 2000, DOE established new energy efficiency
standards for new Federal commercial and multi-family high-rise
residential buildings. 65 FR 59999. DOE placed the revised Federal
commercial and multi-family high-rise residential building standards in
a new 10 CFR part 434, entitled ``Energy Code for New Federal
Commercial and Multi-Family High Rise Residential Buildings.'' The
standards for Federal low-rise residential buildings remain in 10 CFR
part 435.
Section 109 of EPAct 2005 amended section 305 of ECPA. (42 U.S.C.
6835) Section 109 replaced the minimum standards referenced in section
305(a)(2)(A) with references to updated building codes that are widely
used today. For residential buildings, CABO Model Energy Code, 1992,
was replaced with the 2004 International Energy Conservation Code
(IECC). For commercial and multi-family high rise buildings, ASHRAE
Standard 90.1-1989 was replaced with ASHRAE Standard 90.1-2004.
Section 109 of EPAct 2005 also added a new section 305(a)(3)(A)
that requires DOE, by rule, to establish revised Federal building
energy efficiency performance standards not later than August 8, 2006.
(42 U.S.C. 6834(a)(3)(A)) Under the revised standards, new Federal
buildings must be designed to achieve energy consumption levels that
are at least 30 percent below the updated minimum standards referenced
in section 305(a)(2), if life-cycle cost-effective. (42 U.S.C.
6834(a)(3)(A)(i)(I))

B. Interim Final Rule

On December 4, 2006, the Department published an interim final rule
establishing energy conservation standards for the design and
construction of new Federal commercial and multi-family high rise
residential buildings (10 CFR part 433) and the design and construction
of new Federal low-rise residential buildings (10 CFR part 435, subpart
A). 71 FR 70275. DOE determined that establishing these requirements
through an interim final rule offered the best opportunity to achieve
the energy efficiency goals of section 109 of the EPAct 2005 as soon as
possible. Further, the standards are applicable only to the design and
construction of Federal buildings, which are public property.
Regulations applicable only to public property are exempted from the
Administrative Procedure Act's prior notice and comment requirements.
(5 U.S.C. 553(a)(2)) Additionally, the explicitness of the direction
provided to DOE for this rule in section 109 of the EPAct 2005
supported the issuance of an interim final rule, as a matter of policy.
The interim final rule established an energy efficiency baseline
for new Federal commercial and multi-family high rise residential
buildings and new Federal low-rise residential buildings based on
referencing ASHRAE Standard 90.1-2004 and the 2004 IECC, respectively.
These standards establish requirements for the structure and major

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systems of a building and are mandatory for new Federal buildings. The
interim final rule established a requirement for new Federal buildings
to achieve a level of energy efficiency 30 percent greater than that of
the ANSI/ASHRAE/IESNA or the 2004 IECC levels, as appropriate, when
life-cycle cost-effective, again as directed by the statute.
The standards established in the interim final rule do not take a
prescriptive approach as to how the 30 percent reduction is to be
obtained. The baseline standards contain a limited set of mandatory
requirements, such as sealing leaks in the building envelope and air
duct systems. Beyond this, there are no restrictions on how a Federal
agency is to achieve cost-effective energy savings. DOE believes that
Federal agencies should be given the flexibility necessary to determine
the most effective ways to achieve energy savings above that of the
incorporated standards, rather than relying on prescriptive
requirements that may not be appropriate in all cases.
The interim final rule became effective January 3, 2007. All new
Federal buildings for which design for construction began on or after
that date must comply with the requirements established in this rule.
Again, the interim final rule applied to the design and construction of
Federal buildings, as opposed to the operation of Federal buildings
following construction. All new Federal buildings for which design for
construction began prior to that date must comply with the requirements
in 10 CFR part 434 or subpart C of part 435, as applicable.
DOE provided a list of resources to help Federal agencies achieve
building energy efficiency levels of at least 30 percent below that of
ASHRAE Standard 90.1-2004 or the 2004 IECC. 71 FR 70278-70279. The
resources were provided in three categories--for all buildings,
specifically for commercial and high-rise multi-family residential
buildings, and specifically for low-rise residential buildings.

C. Summary of the Final Rule

In today's final rule, the Department makes a number of minor
changes to the interim final rule. These changes are described in
Section II below.

II. Discussion of Comments and Changes to the Interim Final Rule

DOE received a variety of comments from twenty different parties in
response to the interim final rule. The comments covered a variety of
topics. There were comments and questions on scope and timing of new
Federal standards, such as what energy end-uses the rules cover, and
whether they should apply to major retrofits and leased buildings. Some
comments suggested changes or alternatives to the baseline minimum
standards. In particular, several commenters requested an update to the
2006 IECC in place of 2004 IECC for low-rise residential buildings. A
number of comments suggested that the rules require more than 30
percent energy savings if cost effective. Some commenters wanted DOE to
actively enforce that Federal agencies comply with the standards and/or
provide support and guidance for implementing the standards. DOE
received two comments (United States Postal Service, No. 15; Edison
Electric Institute No. 18 \1\) that simply expressed support for the
content of the new Federal standards. Comments are discussed and
addressed in greater detail below.
Questions on Scope and Timing of New Federal Standards
As stated above, the interim final rule applies to Federal
buildings for which design for construction began on or after January
3, 2007. Los Alamos National Laboratory (Comment No. 6) and the
Department of Veterans Affairs (Comment No. 20) requested clarification
of when ``design for construction'' begins as this establishes the
applicable stage when the new rule applies. The rule becomes effective
at the design stage when the impact of the rule needs to be accounted
for in the procurement process. Specifically, this is 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. If
prior to January 3, 2007, energy efficiency and sustainability details
were incorporated into a building design, and thus a costly redesign
would be required to meet this rule, the new rule is not applicable.
Today's final rule clarifies the applicability of the new Federal
building standards.
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\1\ The number accompanying an identified commenter indicates
the location of the comment with in the docket for this rulemaking.
There were 20 comments received in total. All comments can be
reviewed at http://www2.eere.energy.gov/femp/pdfs/ee_rm_std_02_112.pdf
.

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Four comments questioned if the standards apply to leased buildings
(Naval Facilities Engineering Command, No. 3; The Alliance to Save
Energy, No. 9; The American Institute of Architects; No. 10 and No.
14). The last three comments recommended that the scope of the interim
rule be expanded to apply to leased buildings.
ECPA specifically defines ``Federal building'' to mean any building
to be ``constructed by, or for the use of, any Federal agency which is
not legally subject to State or local building codes or similar
requirements.'' (42 U.S.C. 6832(6)) DOE applied the statutory
definition to define ``new Federal buildings'' for the purpose of 10
CFR 433.2 and 435.2. A building being constructed for lease by a
Federal agency would be for the use of the Federal agency and therefore
would be a ``new Federal building'' subject to the requirements
established in the interim final rule if it is not legally subject to
State or local building codes.
Four comments suggested the rule should apply to additions and/or
major renovations. (Comments No. 6; No. 9; No. 10; No. 14). Commenters
noted that the previous building standards applied to major
renovations.
Section 305 of ECPA specifies that the rule shall apply to only new
buildings. Today's final rule provides additional clarity on the
distinction between a ``new'' building and a major renovation. Under
today's final rule the definition of ``new Federal building'' specifies
that a building is a new building if it is completely replaced from the
foundation up. DOE notes that the recent Executive Order 13423,
Strengthening Federal Environmental, Energy, and Transportation
Management, includes mandatory energy efficiency requirements for major
renovations to Federal buildings. 72 FR 3919 (January 24, 2007).
Request for Use of the 2006 IECC Instead of the 2004 IECC for Low-Rise
Residential Buildings
Five commenters (Birch Point Consulting, No. 1; American
Architectural Manufacturers Association, No. 4; Pilkington North
America No. 5; APA-The Engineered Wood Association No. 12; and a
combined comment from Icynene, Nu-Wool Co., Inc., and Building Quality,
No. 13) requested that the residential standards be updated from the
2004 IECC Edition to the 2006 IECC. These commenters stated that the
2004 IECC is what is referred to as a ``supplement edition'' that is
published at the midpoint between the three year cycles when stand-
alone editions of the IECC are published. Some of the commenters
further stated that the 2004 IECC is ``not a code.'' Comments stated
that the 2006 IECC is the most current version of the IECC and the 2004
Supplement is now an older version. Additionally, several commenters
objected to requirements in the 2004 IECC and stated a preference for
the alterations to these requirements

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in the 2006 IECC. Conversely, one commenter believes the Department was
correct to use the 2004 IECC (Responsible Energy Codes Alliance, No.
11)
Several commenters observed that ECPA requires that the Department
determine whether the Federal standards should be updated within one
year after approval of revisions to the IECC (or ASHRAE Standard 90.1).
These commenters requested that consistent with this provision of EPCA
DOE incorporate the 2006 version of the IECC.
The interim final rule reflected Congress's specific instruction as
to which voluntary consensus standard DOE is to incorporate into the
requirements as the baseline for Federal residential buildings, 2004
IECC. Further, the 2004 IECC is code language that is fully sanctioned
by the International Code Council. As directed by ECPA, DOE will
consider updating to the 2006 IECC based on the cost effectiveness of
the revisions contained in the 2006 IECC. However, at this time DOE has
not completed the analysis necessary to determine if the standard
should be updated to cite the 2006 IECC.
Suggestions for Use of Alternative Baseline Standards
DOE received a number of comments suggesting the use of alternative
baseline standards to the 2004 IECC (for low-rise residential
buildings) and ASHRAE Standard 90.1-2004 (for commercial and high-rise
residential buildings). Suggestions included the use of the IECC for
commercial and high-rise residential buildings (Comment No. 1;
Responsible Energy Codes Alliance, No. 11) and use of the IRC (Comment
No. 1) or ASHRAE Standard 90.2-2004 (Comment No. 14; No. 18) for low-
rise residential buildings.
Today's final rule does not amend the use of ASHRAE Standard 90.1-
2004 and the 2004 IECC as the baselines for the requirement. As stated
above, section 109 of EPAct 2005 is explicit in the voluntary standards
that are to be incorporated as the baseline.
Comments Requesting Clarification of Requirements
Under the requirements established in the interim final rule,
Federal buildings must exceed the energy efficiency level of the
appropriate consensus standard by 30 percent if life-cycle cost
effective. 10 CFR 433.4(a)(2) and 435.4(a)(2). DOE received several
comments on the 30 percent level specified in the standards and the
reliance on ``life-cycle cost effective.''
Regarding the energy savings target, four commenters suggested that
DOE require the maximum cost-effective energy efficiency, even if it is
beyond 30% (Comments No. 9; No. 10; No. 14; and Natural Resources
Defense Council, No. 17). These commenters interpreted the direction in
EPAct 2005 to be to achieve the maximum level of energy efficiency that
is cost-effective relative to the baseline standards, not just to
achieve at least 30 percent savings.
As stated in the preamble to the interim final rule, Congress
expressly specified a minimum performance requirement of a 30 percent
improvement, if life-cycle cost effective. 71 FR 70277. Although the
statute requires DOE to establish performance standards that are ``at
least'' 30 percent below the levels in the incorporated ASHRAE and IECC
standards, the standards that DOE established in the interim final rule
do not require Federal agencies to consider the life-cycle cost
effectiveness of improvements beyond the 30 percent level.
It is DOE's view that had Congress sought to require improvements
at a maximum energy savings with the condition that it has an equal or
lower life-cycle cost relative to the baseline standard, it would have
mandated designs to achieve that level and would not have specified the
30 percent minimum. The rule uses the same language in EPAct--that at
least 30 percent savings be achieved if cost-effective. Federal
agencies are not precluded from designing buildings to achieve greater
improvements, and DOE encourages agencies to design new Federal
buildings to achieve lower energy consumption levels if life-cycle cost
effective. Further, DOE has made a minor modification to Sections
433.4(c) and 435.4(c) of the final rule to permit energy efficient
better than the maximum level that is cost effective. This allows
Federal agencies the flexibility to pursue additional energy efficiency
for demonstration projects, such as zero energy buildings.
One commenter objected to the performance based nature of the 30
percent requirements. The commenter stated that DOE should establish
more prescriptive standards (Comment No. 17). The standards established
in the interim final rule allow Federal designers flexibility in
choosing a compliant design and assign the responsibility of ensuring
compliance to the Federal agencies. The commenter's statements suggest
a preference for prescriptive standards to achieve the additional 30
percent savings compared to the reference national standards, with
explicit minimum requirements for individual building components (such
as walls, windows, and floors) and systems (such as lighting and
mechanical systems).
Previous standards for Federal buildings were generally
prescriptive in nature. However, given the complexity of developing a
set of prescriptive requirements that meet both the energy efficiency
and cost-effectiveness goals of section 109 of the EPAct 2005 for all
Federal buildings of all types, DOE established a performance-based
approach, utilizing the prescriptive requirements of the private sector
standards as the absolute minimum if higher levels are not cost-
effective. This approach permits the applicable construction costs and
fuel costs for any given project to be accounted for, allowing for most
cost-effective solution, which may indeed result in a greater than 30
percent savings over the minimum reference standards.
One commenter (Comment No. 3) stated that ``life-cycle cost-
effectiveness'' had not been adequately defined. The definition in the
interim final rule specifies that life cycle cost-effectiveness is
determined in accordance with 10 CFR part 436. The definition of
``life-cycle cost effective'' in 10 CFR part 436 provides agencies a
choice of 4 methods of showing life cycle cost effectiveness, including
lowest life cycle costs (10 CFR 436.19), positive net savings (10 CFR
436.20), a saving-to-investment ratio greater than one (10 CFR 436.21),
or an internal rate of return higher than the discount rate published
by OMB (10 CFR 436.22). The methodologies specified in 10 CFR 436 have
been widely established in Federal projects, with the National
Institute of Standards and Technology (NIST) responsible for providing
support for implementing 10 CFR 436 (http://www.bfrl.nist.gov/oae/projects/04ps75.html
).

Comments Related to the Handling of Receptacle and Process Loads
DOE received five comments about addressing plug and process loads
in Federal buildings. Two of the comments (Environmental Protection
Agency, No. 7; Department of Interior, No. 19) objected to the fact
that receptacle and process loads were exempted from calculation of the
savings for the 30 percent requirement for commercial and high-rise
residential buildings in the interim final rule. Laclede Gas (Comment
No. 16) urged the Department to keep food service ventilation
classified as process load. Conversely, the Department of Veterans
Affairs (Comment No. 20) asked that medical equipment loads be exempt
from the

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energy consumption savings requirements. Another comment (Los Alamos
National Laboratory, No. 6) suggested that it be recognized that there
are situations that should be excluded from the evaluation of energy
savings such as industrial, manufacturing, or commercial processes.
The energy efficiency of many receptacle loads (anything that is
plugged in, such as a personal computer) is addressed through a
separate section of EPAct 2005. Section 104 of EPAct 2005 requires
Federal agencies to purchase energy efficient appliances and equipment.
(42 U.S.C 8259b). Additionally, today's final rule applies to buildings
as designed and constructed and it is often not possible to identify
all receptacle loads when a building is designed or constructed as the
occupants will to some degree establish what is plugged in. As
equipment is replaced over time the initial savings from receptacle
loads may diminish. As such DOE is maintaining the exclusion of
receptacle loads for the purpose of calculating energy savings under
the Federal building standards.
With respect to process loads (for example, medical or industrial
equipment), the Department is excluding these energy end-uses from the
energy savings metric. Process loads typically involve specialized
equipment for which improvements in energy efficiency may affect the
functionality of the equipment or where improvements are not available
at all. Some Federal buildings use most of their energy serving process
loads, and application of the energy savings requirement to these
buildings would likely place an undo burden on the rest of the building
if the 30 percent savings is to be achieved.
In order to provide additional clarity, DOE is establishing
definitions of ``receptacle load'' and ``process load.''
Suggestion to Use Source Energy Instead of Site Energy
DOE received a comment from the American Gas Association (Comment
No. 8) suggesting the use of source energy instead of site energy as
the energy metric to be used for determining energy consumption in the
new Federal standards. Site energy is the energy used at the building.
Source energy is the site energy and all energy used to produce and
deliver the energy to the site. ECPA as modified by EPAct 2005
specifies the use of ASHRAE Standard 90.1 and the IECC as the reference
standards. The procedures for calculating energy efficiency performance
in these reference standards are annual energy cost. These procedures
are adopted in this rulemaking. Energy costs implicitly account for the
complete process of producing energy.
Comments on Implementation and Enforcement of the Rules
DOE received a number of comments requesting that additional
actions be taken to implement and enforce the rule. Two commenters
(Comments No. 10 and No. 14) urged the Department to issue rulemakings
with provisions for sustainable design principles and water
conservation technologies as required by EPCA, as amended by section
109 of EPACT 2005. DOE is currently preparing a notice of proposed
rulemaking to address these provisions.
Three commenters (The Polyisocyanurate Insulating Manufacturers
Association, No. 2; Comments No. 9; and No. 14) suggested the
Department take actions to ensure that agencies are complying with the
standards. DOE again notes that today's final rule applies to the
design and construction of new Federal buildings. Section 109 of EPAct
2005 assigns the responsibility of reporting compliance to the
individual agencies as part of their annual budget request. Agencies
are required to submit a list of all new Federal buildings owned,
operated, or controlled by the Federal agency, and a statement
specifying whether the Federal buildings have been constructed (or
designed to be constructed) to meet or exceed the standards adopted in
this notice. (42 U.S.C. 6834(a)(3)(C)) DOE has determined that the
existing reporting requirement is sufficient to identify agency
compliance.
The interim final rule provided a list of resources to provide
guidance on compliance with the requirements. 71 FR 70278-70279.
Additionally, DOE, through its Federal Energy Management Program, is
preparing training for federal agencies on how to comply with today's
final rule.
The Alliance to Save Energy commented that DOE should add
requirements for commissioning and energy metering (Comment No. 9). DOE
notes that section 103 of EPAct 2005 amended EPCA to require that all
Federal buildings be metered. (42 U.S.C. 8253) The rule does not
contain requirements for commissioning as the applicable Federal
agencies are responsible for ensuring that the energy efficiency
measures be properly installed.
The Alliance to Save Energy commented that the Department should
consider innovative provisions to make buildings more adaptable to new
and emerging technologies (Comment No. 9). DOE notes that it
participates in the development of new energy-efficient technologies
for buildings and does promote the use of new energy-efficient
technologies in buildings. Private sector standards and codes (ASHRAE
Standard 90.1-2004 and the 2004 IECC) are typically ``technology-
neutral.'' Particular technologies may be used to set the level of
performance for energy codes or standards, but it would be this level
of performance and not the specific technology that would be embodied
in the code or standard. As stated above, the 30-percent requirement is
a performance based requirement. Federal agencies are free to rely on a
variety of technologies that they determine to be appropriate for their
specific applications.
The Alliance to Save Energy suggested that the provisions of
section 104 of EPAct 2005 for building equipment to meet Energy Star
and FEMP-designated efficiency criteria be included in this rule
(Comment No. 9). As discussed above, DOE does not believe that it is
appropriate to address receptacle loads in the Federal building
standards. DOE is addressing the procurement requirements of section
104 in a separate rulemaking. 72 FR 33696 (June 19, 2007).
Comments Requesting Support in Implementing the Rule
One commenter (No. 2; 2) requested that the Department develop a
comprehensive database of energy-efficiency features. FEMP maintains a
database on high performance Federal buildings. (http://www.eere.energy.gov/femp/highperformance/
) Three commenters (Comments

No. 2; No. 10; and No. 14) requested that DOE provide support for
education and training. FEMP intends to provide training and education
on the new Federal standards, beginning in late 2007.
DOE received a comment (Comment No. 10) suggesting that DOE
implement the requirements of the new Federal standards in design
specifications and model contract language that could be used by all
agencies. The Department believes this is a good suggestion and will
take this under consideration for action.
Suggestion To Remove a Single Reference From the Preamble
DOE received a comment from the American Gas Association (Comment
No. 8) requesting that the references to the ASHRAE Advanced Energy
Design Guide (AEDG) be removed from the preamble because it
``encourages more buildings to use electric resistance.''

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DOE notes that the references provided in the preamble of the interim
final rule are for informational purposes only and the AEDG is approved
by ASHRAE, a leading national technical society. The references are not
intended to promote any single method for achieving compliance with the
requirements.

III. Regulatory Analyses

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

Today's final rule is a ``significant regulatory action'' under
section 3(f)(1) of Executive Order 12866, ``Regulatory Planning and
Review.'' 58 FR 51735 (October 4, 1993). Accordingly, today's action
was subject to review by the Office of Information and Regulatory
Affairs in the Office of Management and Budget (OMB). OMB has completed
its review.

B. Review Under the Regulatory Flexibility Act

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

Today's 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 any
legal requirement to publish a general notice of proposed rulemaking.
The Regulatory Flexibility Act does not apply.

C. Review Under the Paperwork Reduction Act of 1995

This rulemaking will impose no new information or record keeping
requirements. Accordingly, 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) (DOE/EA-1463)
entitled, Draft Environmental Assessment for Interim Final Rule, 10 CFR
Part 433, ``Energy Efficiency Standards for New Federal Commercial and
Multi-Family High-Rise Residential Buildings,'' and 10 CFR Part 435,
``Energy Efficiency Standards for New Federal Low-Rise Residential
Buildings,'' 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 interim final rule. The only projected impact
is a decrease in outdoor air pollutants resulting from decreased fossil
fuel burning for energy use in Federal buildings. Today's minor changes
to the interim final rule do not affect the findings of the EA or the
discussion of those findings in the preamble to the interim final rule.
71 FR 70280.

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 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

[[Page 72570]]

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, 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).

V. Approval of the Office of the Secretary

The Secretary of Energy has approved publication of today's final
rule.

List of Subjects in 10 CFR Parts 433, 434, and 435

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

Issued in Washington, DC, on December 4, 2007.
Alexander A. Karsner,
Assistant Secretary, Energy Efficiency and Renewable Energy.

0
Accordingly, the interim final rule amending 10 CFR parts 433, 434 and
435, which was published at 71 FR 70275 on December 4, 2006, is adopted
as a final rule with the following changes:

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

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

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

0
2. Amend Sec. 433.2 by adding in alphabetical order definitions of
``Design for construction,'' ``Process load'' and ``Receptacle load''
and revise the definition of ``New Federal building'' to read as
follows:

Sec. 433.2 Definitions.

* * * * *
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.
* * * * *
New Federal building means any building to be constructed on a site
that previously did not have a building or a complete replacement of an
existing building from the foundation up, by, or for the use of, any
Federal agency which is not legally subject to State or local building
codes or similar requirements.
* * * * *
Process load means the load on a building resulting from energy
consumed in support of a manufacturing, industrial, or commercial
process. Process loads do not include energy consumed maintaining
comfort and amenities for the occupants of the building (including
space conditioning for human comfort).
Receptacle load means the load on a building resulting from energy
consumed by any equipment plugged into electrical outlets.
* * * * *
0
3. Revise paragraph (c) of Sec. 433.4 to read as follows:

Sec. 433.4 Energy efficiency performance standard.

* * * * *
(c) If a 30 percent reduction is not life-cycle cost-effective, the
design of the proposed building shall be modified so as to achieve an
energy consumption level at or better than the maximum level of energy
efficiency that is life-cycle cost-effective, but at a minimum

[[Page 72571]]

complies with paragraph (a) of this section.

PART 434--ENERGY CODE FOR NEW FEDERAL COMMERCIAL AND MULTI-FAMILY
HIGH-RISE RESIDENTIAL BUILDINGS

0
4. The authority citation for part 434 continues to read as follows:

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

0
5. In Sec. 434.101, paragraph 101.1.1, paragraphs (a)(2) and (3) are
revised to read as follows:

Sec. 434.101 Scope.

* * * * *
101.1.1 (a) * * *
(2) An addition for which design for construction began before
January 3, 2007, that adds new space with provision for a heating or
cooling system, or both, or for a hot water system; or
(3) A substantial renovation of a building for which design for
construction began before January 3, 2007, involving replacement of a
heating or cooling system, or both, or hot water system, that is either
in service or has been in service.
* * * * *

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

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

Authority: 42 U.S.C. 6831-6832, 6834-6835; 42 U.S.C. 8253-54; 42
U.S.C. 7101 et seq.

0
6a. Amend part 435 by revising the part heading to read as set forth
above.
0
7. Amend Sec. 435.2 by adding in alphabetical order a definition of
``Design for construction'' and revise the definition of ``New Federal
building'' to read as follows:

Sec. 435.2 Definitions.

Sec. 435.4 Energy efficiency performance standard.

[FR Doc. E7-24615 Filed 12-20-07; 8:45 am]

BILLING CODE 6450-01-P