[Federal Register Volume 75, Number 103 (Friday, May 28, 2010)]
[Proposed Rules]
[Pages 29933-29947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12677]
[[Page 29933]]
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DEPARTMENT OF ENERGY
10 CFR Parts 433 and 435
[Docket No. EE-RM/STD-02-112]
RIN 1904-AC13
Energy Efficiency and Sustainable Design Standards for New
Federal Buildings
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Energy (DOE) is publishing this notice
of proposed rulemaking (NOPR) to implement provisions of the Energy
Conservation and Production Act, as amended by the Energy Policy Act of
2005 and the Energy Independence and Security Act of 2007, that require
DOE to establish revised performance standards for the construction of
new Federal buildings and major renovations of Federal buildings. This
NOPR specifically addresses the use of sustainable design principles
for siting, design, and construction, and the use of water conservation
technologies to achieve energy efficiency. This proposed rulemaking
also provides criteria for identifying a certification system and level
for green buildings that encourages a comprehensive and
environmentally-sound approach to certification of green buildings.
DATES: Public comments on this proposed rule will be accepted until
July 27, 2010. The Department will hold a public meeting on Wednesday,
July 28, 2010, from 9 a.m. to 4 p.m., in Washington, DC. DOE must
receive requests to speak at the public meeting before 4 p.m.,
Wednesday, July 14, 2010. DOE must receive a signed original and an
electronic copy of statements to be given at the public meeting before
4 p.m., Wednesday, July 21, 2010.
DOE will accept comments, data, and information regarding the NOPR
before and after the public meeting, but no later than July 27, 2010.
ADDRESSES: The public meeting will be held at the U.S. Department of
Energy, Forrestal Building, Room 8E-089. You may submit comments using
any of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
2. E-mail: [email protected]. Include EE-RM/STD-02-112 and/
or RIN 1904-AC13 in the subject line of the message.
3. Postal Mail: Cyrus Nasseri, U.S. Department of Energy, Federal
Energy Management Program, Mailstop EE-2L, Energy Efficiency and
Sustainable Design Standards for New Federal Commercial and Multi-
Family High-Rise Residential Buildings and Energy Efficiency and
Sustainable Design Standards for New Federal Low-Rise Residential
Buildings, EE-RM/STD-02-112 and/or RIN 1904-AC13, 1000 Independence
Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-9138.
Please submit one signed paper original.
4. Hand Delivery/Courier: Cyrus Nasseri, U.S. Department of Energy,
Federal Energy Management Program, Room 5E-080, 1000 Independence
Avenue, SW., Washington, DC 20585-0121.
Instructions: All submissions must include the agency name and
docket number or Regulatory Information Number (RIN) for this
rulemaking.
Docket: For access to the docket to read background documents or
comments received by DOE, go to the U.S. Department of Energy,
Forrestal Building, Room 5E-080 (Resource Room of the Federal Energy
Management Program), 1000 Independence Avenue, SW., Washington, DC,
(202) 586-9127, between 9 a.m. and 4 p.m., Monday through Friday,
except Federal holidays. Please call Cyrus Nasseri at the above
telephone number for additional information regarding visiting the
Resource Room.
If you submit information that you believe to be exempt by law from
public disclosure, you should submit one complete copy, as well as one
copy from which the information claimed to be exempt by law from public
disclosure has been deleted. DOE is responsible for the final
determination with regard to disclosure or nondisclosure of the
information and for treating it accordingly under the DOE Freedom of
Information regulations at Title 10 of the Code of Federal Register (10
CFR) 1004.11.
FOR FURTHER INFORMATION CONTACT: Cyrus Nasseri, U.S. Department of
Energy, Office of Energy Efficiency and Renewable Energy, Federal
Energy Management Program, EE-2L, 1000 Independence Avenue, SW.,
Washington, DC 20585-0121, (202) 586-9138, e-mail:
[email protected], or Chris Calamita, U.S. Department of Energy,
Office of the General Counsel, Forrestal Building, GC-72, 1000
Independence Avenue, SW, Washington, DC 20585, (202) 586-1777, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Discussion of Today's Action
III. Reference Resources
IV. Regulatory Analysis
V. Approval of the Office of the Secretary
I. Introduction
Section 305 of the Energy Conservation and Production Act (ECPA)
established energy conservation requirements for Federal buildings. (42
U.S.C. 6834) Section 109 of the Energy Policy Act of 2005 amended
section 305 of ECPA by adding section 305(a)(3)(A), which requires DOE,
through regulation, to update the energy efficiency requirements for
new Federal buildings. (42 U.S.C. 6834(a)(3)(A)) DOE is also required
to establish a requirement that, if life-cycle cost-effective,
sustainable design principles must be applied to the siting, design,
and construction of all new and replacement buildings. (42 U.S.C.
6834(a)(3)(A)(i)(II)) Section 433 of the Energy Independence and
Security Act of 2007 (EISA; Pub. L. 110-140) further amended section
305 of ECPA to apply sustainable design principles to certain new
Federal buildings and major renovations of Federal buildings without
specifying consideration of life-cycle cost-effectiveness. (42 U.S.C.
6834(a)(3)(D)(i)(III)) In addition, DOE is directed to establish
regulations that require water conservation technologies and solar hot
water heaters be applied to the extent life-cycle cost-effective. (42
U.S.C. 6834 (a)(3)(A)(ii) and (a)(3)(D)(vii)) Today's proposed rule
addresses sustainable design principles, water conservation
technologies, and solar water heating. Additionally, as amended by
EISA, ECPA directs DOE to identify a certification system and level for
rating green buildings that DOE determines to be the most likely to
encourage a comprehensive and environmentally sound approach to such
certification and rating. (42 U.S.C. 6834(a)(3)(D)(i)(III)) Finally,
section 433 of EISA revised the definition of ``Federal building''
applicable to the regulations for Federal buildings. (42 U.S.C.
6832(6)) This definitional change is addressed in today's notice.
DOE has already addressed energy efficiency in new Federal
buildings in a final rule published on December 21, 2007 (72 FR 72565).
Specifically, new Federal buildings must be designed to achieve energy
consumption levels that are at least 30 percent below the updated
minimum standards referenced in section 305(a)(2), if life-cycle cost-
effective. (42 U.S.C. 6834(a)(3)(A)(i)(I); see also 10 CFR 433.4 and
435.4) DOE placed the revised Federal commercial
[[Page 29934]]
and multi-family high-rise residential building standards in a new 10
CFR Part 433, entitled ``Energy Efficiency Standards for the Design and
Construction of New Federal Commercial and Multi-Family High-Rise
Residential Buildings.'' The updated standards for Federal low-rise
residential buildings are contained in 10 CFR Part 435, Subpart A.
Section 433 of EISA added section 305(a)(3)(D) to require fossil
fuel energy savings for certain building types. DOE will address the
fossil fuel requirements of section 433 of EISA in a separate
rulemaking. The fossil fuel requirement rulemaking may amend the same
regulatory sections as those proposed to be amended in today's notice
of proposed rulemaking. The proposed regulatory text in today's
document would amend the current regulatory text, without consideration
of amendments that may result from the fossil fuel requirement
rulemaking. If and when these rulemakings are finalized, DOE will
coordinate the final regulatory text between the two rulemakings.
DOE notes that it is required to review and revise energy
efficiency requirements for Federal building as the voluntary industry
codes are updated. (42 U.S.C. 6834(a)(3)(b)) DOE intends to address
this review of the current versions of ASHRAE Standard 90.1 and the
International Code Council International Energy Conservation Code
(IECC) as the minimum energy efficiency performance standards in 10 CFR
Parts 433 and 435 in a separate rulemaking.
II. Discussion of Today's Action
A. Scope of Proposed Rulemaking
1. Definition of ``Federal Building''
Section 305 of ECPA requires, in part, that DOE establish, by rule,
standards for new Federal buildings that require, if life-cycle cost-
effective, new Federal buildings be designed to achieve energy
consumption levels that are at least 30 percent below the levels
established in the applicable industry code, and that sustainable
design principles are applied to the siting, design, and construction
of all new and replacement buildings. (42 U.S.C. 6834(a)(3)(A)(i))
Further, water conservation technologies must be applied to the extent
that the technologies are life-cycle cost-effective. (42 U.S.C.
6834(a)(3)(A)(ii)) and 6834(a)(3)(D)(vii)
As stated previously in this notice, DOE has established
regulations that address the energy consumption requirements for new
Federal buildings. (72 FR 72565) In the final rule for the energy
consumption requirements of new Federal buildings, DOE relied on the
statutory definition of ``Federal building,'' i.e., ``any building to
be constructed by, or for the use of, any Federal agency which is not
legally subject to State or local building codes or similar
requirements.'' (72 FR 72565)
Section 433 of EISA amended the definition of ``Federal building''
applicable to section 305 of EPCA, including the energy consumption,
sustainability, and water conservation requirements. The statute now
defines ``Federal building'' to mean any building to be constructed by,
or for the use of, any Federal agency. DOE is proposing that the term
include buildings built for the purpose of being leased by a Federal
agency, and privatized military housing awarded subsequent to
promulgation of this rule.\1\ (42 U.S.C. 6832(6)) DOE is proposing to
revise the definition of ``new Federal building'' consistent with the
amendment in EISA. Additionally, DOE is considering limiting the
inclusion of leased buildings in the definition of ``Federal building''
to new leased buildings in which a Federal agency has significant
control over the design of the building (e.g., ``lease-constructs'').
DOE welcomes comments on these considerations.
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\1\ The Military Housing Privatization Initiative (MHPI) is a
public/private program whereby private sector developers may own,
operate, and maintain military family housing. The MHPI was enacted
on February 10, 1996, as part of the National Defense Authorization
Act for fiscal year 1996.
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2. Consideration of Life-Cycle Costs
In general, DOE is proposing that the sustainable design
requirements be applied to all new and replacement Federal buildings to
the extent those requirements are life-cycle cost effective. For a
subset of new Federal buildings and Federal buildings undergoing major
renovation, DOE is proposing that the sustainable design principles be
applied to the ``extent practicable.'' As explained further in this
section, ``extent practicable'' considerations would include specified
cost considerations separate from a life-cycle cost threshold.
Section 305(a)(3)(i)(II) requires DOE to establish regulations that
require sustainable design principles to be applied to the siting,
design, and construction of all new and replacement Federal buildings,
to the extent life-cycle cost-effective. (42 U.S.C. 6834(a)(3)(i)(II))
Section 305(a)(3) of ECPA as amended directs DOE to establish
regulations that require sustainable design principles be applied to a
subset of new Federal buildings and Federal buildings undergoing major
renovation, without specifying consideration of life-cycle cost. (42
U.S.C. 6834(a)(3)(D)(i)(III)) A building is in the subset of new
Federal buildings and Federal buildings undergoing major renovations if
the building is:
A public building as defined in 40 U.S.C. 3301,\2\ for
which the Administrator of General Services is required to transmit a
prospectus to Congress under 40 U.S.C. 3307, or
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\2\ Under 40 U.S.C. 3301(5) ``public building'' is a building,
whether for single or multitenant occupancy, and its grounds,
approaches, and appurtenances, which is generally suitable for use
as office or storage space or both by one or more Federal agencies
or mixed-ownership Government corporations.
``Public building'' includes Federal office buildings, post
offices, customhouses, courthouses, appraisers stores, border
inspection facilities, warehouses, record centers, relocation
facilities, telecommuting centers, similar Federal facilities, and
any other buildings or construction projects the inclusion of which
the President considers to be justified in the public interest.
The definition does not include a building or construction
project that is on the public domain (including that reserved for
national forests and other purposes); that is on property of the
Government in foreign countries; that is on Indian and native Eskimo
property held in trust by the Government; that is on land used in
connection with Federal programs for agricultural, recreational, and
conservation purposes, including research in connection with the
programs; that is on or used in connection with river, harbor, flood
control, reclamation or power projects, for chemical manufacturing
or development projects, or for nuclear production, research, or
development projects; that is on or used in connection with housing
and residential projects; that is on military installations
(including any fort, camp, post, naval training station, airfield,
proving ground, military supply depot, military school, or any
similar facility of the Department of Defense); that is on
installations of the Department of Veterans Affairs used for
hospital or domiciliary purposes; or the exclusion of which the
President considers to be justified in the public interest.
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A building and major renovation for which the construction
project cost is at least $2,500,000 (in 2007 dollars, adjusted for
inflation using U.S. Department of Labor Producer Price Indexes).
If a new or replacement Federal building does not fit into one of these
two categories, sustainable design principles would apply only to the
extent that they are life-cycle cost-effective.
DOE is proposing that sustainable design principles be applied to
the new Federal buildings and major renovations identified by the
statute. The sustainable design principles set forth in the
requirements of this proposed rule would be required to be incorporated
into the new Federal building or major renovation design ``to the
extent practicable,'' except in the case of indoor environmental
quality requirements, which would be mandatory. DOE
[[Page 29935]]
believes that indoor air quality requirements are vitally important to
the health and life safety of Federal employees and visitors to Federal
buildings and has therefore emphasized their importance by making the
requirements mandatory. For major renovations, the sustainable design
requirements would only apply to the portion of the building being
renovated.
Today's proposed rule would require Federal agencies to apply
sustainable design principles to the extent practicable when designing
the new Federal buildings and major renovations identified by the
statute. Under the proposed rule, actions would be required to be
implemented ``to the extent practicable;'' i.e., actions would need to
be implemented unless an agency determines that: Full implementation
would prevent the building or facility from fulfilling a key design or
function objective; the necessary products or materials cannot be
commercially procured in a timely fashion; the net increases in total
project life cycle costs are very large, or if initial funding required
to integrate features to comply with this rule exceeds 3 percent of
total first costs. DOE requests comments on whether or not the 3
percent of total first cost limitation should be added directly to the
definition of ``to the extent practicable'' in today's rulemaking. In
this rulemaking, individual sustainable design measures are discussed
individually. It is the intent of the 3 percent of total project cost
that the entire package of sustainable design measure be less than 3
percent of the total first cost for the project. In addition, DOE
requests comments on whether ``very large'' net increases in total
project life cycle costs should be numerically defined, and if so, what
that threshold or range should be.
DOE believes that life cycle costing is an important consideration
in the definition of ``to the extent practicable,'' but that failure of
proof of life-cycle cost-effectiveness in of itself is not sufficient
to disregard the application of sustainable design principles. The
life-cycle cost analysis may not capture all of the benefits from
sustainable design. Environmental impacts often extend far beyond the
``life'' of a building or measures installed in a building. If a
required action cannot be fully implemented for one of these reasons,
agencies should endeavor to implement the required action to the
maximum extent feasible.
DOE is proposing that new Federal buildings that are not in these
two categories identified above would need to comply with the
sustainable design requirements only if they are life-cycle cost-
effective.
The requirements in this proposed rule would not apply to major
renovations that have construction project costs less than $2,500,000
(in 2007 dollars, adjusted for inflation using U.S. Department of Labor
Producer Price Indexes).
3. Definition of ``Major Renovation''
Major renovations are defined in the proposed rule as changes to a
building that provide significant opportunities for substantial
improvement in the sustainable design elements covered in this rule,
including energy efficiency. DOE has also included in the definition of
major renovation the statement that any renovation that exceeds 25
percent of the replacement value of the building would be considered a
major renovation. The replacement value is used rather than the current
value because the current value of old buildings in poor condition may
be very low. The proposed rule would only apply to portions of the
building or building system that are being renovated. For example, if
the renovation includes the replacement of the watering system for
landscaping around an office building, then the requirements for
outdoor water use in the rules would apply. DOE notes that this
definition has been used for a number of years by the Department of
Defense, the Federal government's single largest manager of Federal
buildings. DOE welcomes comments on the definition of ``major
renovation,'' particularly as to whether the definition would result in
an unreasonable burden on planned renovations that are not extensive
enough to accomplish sustainable design objectives.
B. Solar Hot Water Heaters
Section 523 of EISA modifies Section 305(a)(3)(A) of ECPA to
require 30 percent of hot water demand in new Federal buildings or
Federal buildings undergoing major renovations to be met by solar water
heaters if life-cycle cost-effective. (42 U.S.C. 6834(a)(3)(A)(iii))
DOE interprets Section 523 to include all hot water usage in the
building, including hot water used for restrooms, janitorial closets,
food handling facilities, and laundry facilities. Agencies should
calculate the total hot water load for the building and then determine
if it is life cycle cost-effective to use solar hot water systems to
meet 30 percent of the annual demand. This requirement has been
reflected in the proposed rule. DOE welcomes comments on this
requirement.
C. Federal Leadership in High Performance and Sustainable Building--
Guiding Principles
DOE is proposing to add requirements to 10 CFR Parts 433 and 435 to
implement the directive of section 305 of ECPA that Federal buildings
use sustainable design principles for siting, design, and construction,
and water conservation. As a basis for the proposed sustainability
requirements DOE utilized the December 2008 version of the Guiding
Principles originally adopted in the Federal Leadership in High
Performance and Sustainable Building Memorandum of Understanding (MOU)
signed by most Federal agencies. DOE incorporated those requirements
into today's proposed rulemaking. The guiding principles are aimed at
helping Federal agencies and organizations:
Reduce the total ownership cost of facilities.
Improve energy efficiency and water conservation.
Provide safe, healthy, and productive built environments.
Promote sustainable environmental stewardship.
Under Executive Order 13514, ``Federal Leadership in Environmental,
Energy and Economic Performance'' (October 5, 2009), Federal agencies
are already required to ensure that new construction and major
renovations of agency buildings comply with the Guiding Principles. By
basing the rulemaking on the Guiding Principles already in use, DOE
intends to minimize the regulatory burden on Federal agencies. DOE
notes that the Guiding Principles do not address the issue of site
selection, and therefore provisions related to site selection have been
added to the proposal. Additionally, DOE is aware that revisions to the
Guiding Principles are currently being considered. DOE will evaluate
and consider any revisions to the Guiding Principles as part of the
final rule.
DOE is aware that several voluntary industry standards that would
address sustainable design are currently under development.
Specifically, DOE is aware of the development of:
ASHRAE 189.1P--Standard for the Design of High-
Performance, Green Buildings Except Low-Rise Residential Buildings,
The International Green Construction Code under
development by the International Code Council (ICC), and
The National Green Building Standard jointly developed by
the National Association of Home Builders and the ICC for residential
buildings.
[[Page 29936]]
To the extent that such voluntary industry standards are finalized
prior to the issuance of a final rule under this rulemaking, DOE may
consider incorporating some or all of the provisions of the identified
voluntary industry standards. DOE welcomes comments on whether these or
other nationally recognized green/sustainable building design standards
should be deemed to comply with the sustainable design requirements in
the DOE rules.
The proposed requirements for sustainable design are nearly
identical for commercial buildings (including high-rise residential) in
10 CFR 433 and residential buildings in 10 CFR part 435. The
differences are a requirement for radon control in residential
buildings, and a signage requirement to prohibit smoking for commercial
buildings only. Radon is generally considered to be less of a potential
health concern in commercial buildings than in residential buildings.
The signage requirement for prohibiting smoking is based on GSA notice
in Federal Register on December 22, 2008.
The major sustainable design elements of the proposed rules are:
Integrated Design Principles.
Optimize Energy Performance.
Protect and Conserve Water.
Enhance Indoor Environmental Quality.
Reduce Environmental Impact of Materials.
Building Siting.
1. Integrated Design Principles
Integrated design principles include planning, setting goals, and
building commissioning. Building commissioning is the process of
ensuring that building systems and equipment are designed, installed,
tested, and capable of being operated and maintained according to the
owner's or occupants operational needs. Building commissioning is a key
part of designing and building high-performance buildings because it
helps ensure that controls, sensors, and equipment will perform as
intended throughout their expected life. Building commissioning
requires that the facility and all of its systems and assemblies are
planned, designed, installed, tested, operated, and maintained to meet
the owner's or occupant's project requirements.
The building commissioning requirements in the proposed rule are
based on the Guiding Principles. Additionally, DOE has specified the
operation of a building as part of the commissioning efforts. DOE
recognizes that certain Federal agencies are required to conduct water
and energy evaluations of certain facilities. (42 U.S.C. 8253(f)). DOE
has issued guidance on the implementation of this requirement, which
would address the operational component of the commissioning
requirement proposed in this rulemaking. That guidance can be found at
http://www1.eere.energy.gov/femp/pdfs/eisa_s432_guidelines.pdf.
2. Optimize Energy Performance
Energy efficiency is considered as a major component of sustainable
building design. As mentioned above, DOE issued a final rule on
December 21, 2007, that incorporates the energy efficiency standards
required in section 305 of ECPA. That final rule incorporated the
American Society of Heating, Refrigerating, and Air-Conditioning
Engineers ANSI/ASHRAE/IESNA Standard 90.1-2004, ``Energy Standard for
Buildings Except Low-Rise Residential Buildings,'' and the
International Code Council's 2004 ``International Energy Conservation
Code.'' That final rule also established a requirement for new Federal
buildings to achieve a level of energy consumption at least 30 percent
below that of the Standard 90.1-2004 or the 2004 IECC, as appropriate,
when life-cycle cost-effective, as directed by the statute.
Today's notice of proposed rulemaking expands on the energy-related
requirements in the previously published final rule to include solar
water heating and renewable energy generation projects. The solar water
heating requirements are from section 305 of ECPA as amended by section
523 of EISA. The proposed renewable energy generation requirements are
reflective of the Guiding Principles and would support compliance with
section 203 of the Energy Policy Act of 2005, which sets renewable
energy consumption percentages for Federal agencies. (42 U.S.C. 15852)
3. Protect and Conserve Water
Water is a key element of sustainability because water is a limited
resource. The U.S. Government Accountability Office estimated in 2003
that 36 States will face water shortages by 2013. The U.S. Geological
Survey estimates water use in the U.S. and reports that 410 billion
gallons per day were withdrawn for all uses during 2005. Public supply
(including commercial and industrial uses) and domestic water use was
48 billion gallons per day, or 12 percent of the national total. Most
water use in the nation is for thermoelectric power (49 percent) and
irrigation (31 percent).
The proposed rule would implement the requirement established in
EPCA, as amended, that if water is used to achieve energy efficiency,
water conservation technologies shall be applied to the extent that the
technologies are life-cycle cost-effective. (42 U.S.C.
6834(a)(3)(A)(ii)) As proposed, this requirement would apply in
instances in which a Federal agency was relying on technologies such as
cooling towers or condensing units as a means to achieve energy
efficiency. In those instances, the proposed regulation would require
that, to the extent life-cycle cost-effective, the technologies are
water efficient.
The proposed rule adopts the water saving targets from the Guiding
Principles: a 20 percent reduction of indoor potable water usage and a
50 percent reduction in outdoor potable water usage. DOE is interested
in input on how to define procedures relating to the calculation of
baseline water use and water savings for meeting these requirements.
The DOE Federal Energy Management Program provides an estimate of water
use by building type (http://www1.eere.energy.gov/femp/program/waterefficiency_useindices.html) and in the absence of other data, DOE
proposes to use these as the baseline. To the extent practicable, use
of WaterSense labeled products, or products with comparable water
efficiency, for product categories labeled by WaterSense is required.
The issue of stormwater and hydrology is not addressed in this
rule. Stormwater runoff for ``Federal development projects'' is
explicitly addressed in Section 438 of EISA. The U.S. Environmental
Protection Agency (EPA) has issued guidance on complying with section
438 of EISA (http://www.epa.gov/owow/nps/lid/section438/).
4. Enhance Indoor Environmental Quality
The indoor environmental quality requirements from the Guiding
Principles were adapted for this proposed rule. Leading sustainability
programs include indoor environmental quality in their scope. A key
component of the indoor environment is air quality. All buildings have
some potential for indoor air quality-related health problems, such as
``sick-building syndrome.'' The proposed rule addresses the major
aspects of indoor air quality--source control for pollutants, moisture,
and ventilation.
For pollutant sources, the rules specify low-emitting materials and
products used within buildings. For
[[Page 29937]]
moisture control, the proposed rule addresses the potential for
moisture flows and condensation that may lead to the development of
mold. The proposed rule does not identify a particular standard to
address moisture control. DOE requests comment on whether a voluntary
industry standard, such as the ASHRAE ``Indoor Air Quality Guide: Best
Practices for Design, Construction and Commissioning'' (2009), should
be incorporated into the regulation.
For ventilation, the proposed rule would require use of ASHRAE
``Standards on Ventilation for Acceptable Indoor Air Quality: Standard
62.1'' for commercial buildings and residential high-rise buildings and
Standard 62.2 for low-rise residential buildings. Signage prohibiting
smoking would be required for commercial and high-rise residential
buildings.
Radon control requirements from ASTM Standard 1465 are included in
the proposed rule for low-rise residential buildings. DOE requests
comments on the inclusion of a radon control requirement. DOE also
welcomes suggestions for other or additional radon standards that could
be incorporated into this rule. Measures to seal the foundation to
prevent or reduce radon from entering the building would be required in
regions with high radon potential (about one-third of the nation,
mostly in colder States). DOE has taken the definition of high radon
potential from EPA as counties that have a predicted average indoor
radon screening level greater than 4 pCi/L (picocuries per liter), as
shown on the map at: http://www.epa.gov/radon/zonemap.html. DOE
requests comments on this definition of high radon potential.
Radon is a cancer-causing naturally occurring radioactive gas that
is the second leading cause of lung cancer in America and EPA estimates
this leads to the loss of about 20,000 lives annually in radon related
lung cancers.
5. Reduce Environmental Impacts of Materials
Buildings use a diverse array of products. There is a limited
supply of some products' raw materials. Products can also require a
substantial amount of energy to be produced and transported. In 1998,
an EPA report found 10.8 million tons of waste was generated from new
building construction in 1996. In 2003, EPA reported a 21 percent
increase in construction waste since the 1998 report. The proposed rule
would reduce construction waste and would require the use of materials
with recycled content and rapidly renewable materials. The proposals
for construction waste and recycled content are taken from the Guiding
Principles. The 10 percent recycle content requirement is adopted from
the original version of the Guiding Principles.
The proposed rule also addresses ozone depletion. The EPA defines
ozone-depleting substance(s) (ODS) as a compound that contributes to
stratospheric ozone depletion. ODS include CFCs, HCFCs, halons, methyl
bromide, carbon tetrachloride, and methyl chloroform. ODS are generally
very stable in the troposphere and only degrade under intense
ultraviolet light in the stratosphere. When they break down, they
release chlorine or bromine atoms, which then deplete ozone. The
proposed rule would instruct agencies to not use ozone depleting
compounds if an environmentally preferable material is available.
Again, this element of the rule was adapted from the Guiding
Principles.
DOE requests comments on whether requirements related to waste
diversion and ozone depletion should be included in the rulemaking.
6. Building Siting
The proposed rule includes requirements for siting and directs
Federal agencies to comply with all applicable Executive Orders,
statutes and regulations. The applicable siting authorities may include
Executive Orders 12072, 13006, and 13514; the Rural Development Act of
1972; Federal Urban Land Use Act of 1949; and Public Buildings
Cooperative Use Act of 1976.
Site selection is important to minimize direct and indirect
environmental impacts on the surroundings of the building(s) to be
constructed, including protecting environmentally sensitive lands,
reducing energy use for transportation and associated greenhouse gas
emissions, and orienting the building to take advantage of solar heat
gains in the winter and/or minimize solar heat gains in the summer. The
proposed rule includes energy efficiency consideration as a siting
priority.
D. Life-Cycle Cost-Effectiveness
Section 305 of ECPA, as amended by section 109 of the Energy Policy
Act of 2005, mandates the application of sustainable design principles
to the siting, design, and construction of all new and replacement
buildings when life-cycle cost-effective. (42 U.S.C.
6834(a)(3)(A)(i)(II)) Section 433 of EISA further amended section 305
of ECPA to apply sustainable design principles to certain new Federal
buildings and major renovations of Federal buildings without specific
consideration of life-cycle cost-effectiveness. (42 U.S.C.
6834(a)(3)(D)(i)(III)) For major renovations and new buildings that
fall in the two categories defined in EISA (``public buildings''
requiring a prospectus and buildings/renovations costing at least $2.5
million), the proposed rule would apply to the extent practicable.
Under the proposed rule, for new buildings that do not fall into
the two categories, the sustainability design requirements would apply
only if the requirements are proven to be life-cycle cost-effective
using the procedures in 10 CFR part 436 (excluding indoor air quality
requirements, which are mandatory). DOE is proposing that Federal
agencies would be permitted to use one of four methods listed in 10 CFR
part 436 to demonstrate life-cycle cost-effectiveness. These methods
include lower life-cycle costs, positive net savings, savings-to-
investment ratio that is estimated to be greater than one, and an
adjusted internal rate of return that is estimated to be greater than
the Federal Energy Management Program (FEMP) discount rate. The
proposed rule would only require that sustainable design measures that
are cost effective be done, it would not prohibit measures that improve
sustainability but cannot be shown to be cost effective.
Defining life-cycle cost as it applies to sustainable buildings
presents challenges. Some of the benefits are economically measurable
over a finite period of time, such as energy and water savings. Other
benefits may not have an economic benefit that can be clearly
calculated, such as reduced greenhouse gases, reduced waste in
landfills, protection of natural habitat, etc. DOE has not attempted to
quantify externalities related to sustainable design, such as the value
of wetlands preservation. The International Organization for Standards
(ISO) has outlined principles and a framework for life cycle
assessments for environmental management in ISO Standard 14040 that
provides some guidance. DOE welcomes public comments on whether DOE
should attempt to quantify externalities for these types of
environmental benefits. Also, DOE requests comments on which types of
sustainability objectives should be subject to life cycle cost
analysis.
E. Green Building Certification Systems
Section 433 of EISA added a certification system requirement for
new Federal buildings and renovations that are public buildings defined
in 40 U.S.C. 3301, for which the Administrator of General Services is
required to transmit a prospectus to
[[Page 29938]]
Congress under U.S.C. Title 40, section 3307, or that are at least
$2,500,000 in costs adjusted annually for inflation. (42 U.S.C.
6834(a)(3)(D)(i)(III)) Under that requirement, DOE is to ``identify a
certification system and level for green buildings that the Secretary
determines to be the most likely to encourage a comprehensive and
environmentally-sound approach to certification of green buildings.''
Section 433 of EISA directs that the identification of the
certification system and level shall be based on a review of findings
prepared by the Federal Director of the Office of Federal High-
Performance Green Buildings (within the General Service Administration)
under section 436(h) of EISA and the criteria specified in clause
(iii), shall identify the highest level the Secretary determines is
appropriate above the minimum level required for certification under
the system selected, and shall achieve results at least comparable to
the system used by and highest level referenced by the General Services
Administration (GSA) as of the date of enactment of EISA. In addition
to the findings of the Federal Director, DOE is to take into
consideration--
(I) The ability and availability of assessors and auditors to
independently verify the criteria and measurement of metrics at the
scale necessary to implement this subparagraph;
(II) The ability of the applicable certification organization to
collect and reflect public comment;
(III) The ability of the standard to be developed and revised
through a consensus-based process;
(IV) An evaluation of the robustness of the criteria for a high-
performance green building, which shall give credit for promoting:
(a) Efficient and sustainable use of water, energy, and other
natural resources;
(b) Use of renewable energy sources;
(c) Improved indoor environmental quality through enhanced indoor
air quality, thermal comfort, acoustics, day lighting, pollutant source
control, and use of low-emission materials and building system
controls; and
(d) Such other criteria as the Secretary determines to be
appropriate.
(V) National recognition within the building industry. (42 U.S.C.
6834(a)(3)(D)(iii))
GSA identified a green building certification system under section
436(h) of EISA in a letter to the Secretary of Energy.\3\ GSA stated
that the U.S. Green Building Council's Leadership in Energy and
Environmental Design (LEED) rating system would meet the criteria in
section 436(h) of EISA and identified the ``Silver'' level as the
minimum level. The Department of Defense also identified LEED with the
Silver level as the preferred rating system and level in a letter to
the Secretary of Energy.\4\
---------------------------------------------------------------------------
\3\ Letter from Lorita Doan, GSA Administrator to Samuel Bodman,
Secretary of Energy, dated April 25, 2008. EXEC-2008-005379.
\4\ Letter from Wayne Arny, Deputy Under Secretary of Defense
(Installations and Environment), dated May 5, 2009.
---------------------------------------------------------------------------
GSA informed DOE in the letter that it evaluated the following five
rating systems:
Building Research Establishment's Environmental Assessment
Method (BREEAM);
Comprehensive Assessment System for Building Environmental
Efficiency (CASBEE);
GBTool;
Green GlobesTM U.S.; and
Leadership in Energy and Environmental Design.
GSA stated that it evaluated each rating system's:
Applicability: Whether it is relevant to the large scale
and complexity of Federal buildings.
Stability: Whether it has been stable over time, so that
the evaluation of a building's performance is not subject to drastic
changes.
Objectivity: Whether it measures quantifiable aspects of
sustainable design and its ratings are verified by qualified third
parties.
Availability: Whether it is widely used and has broad
practitioner awareness.
In its identification, GSA utilized a 2006 report by Pacific
Northwest National Laboratory \5\ (PNNL) that evaluated leading green
building rating systems. The PNNL report identified the five rating
systems listed above as having the greatest potential of addressing GSA
needs. The PNNL report summarized and reviewed each of the five rating
systems, but did not provide a recommendation on a preferred system.
---------------------------------------------------------------------------
\5\ Fowler, KM and Rauch, EM. 2006. Sustainable Building Rating
Systems: Summary. PNNL-15858. Pacific Northwest National Laboratory.
Richland, Washington.
---------------------------------------------------------------------------
DOE recognizes that there are multiple green building rating
systems currently available and additional systems may be developed.
These systems have various levels of ratings, representing differing
degrees of energy efficiency and sustainable design. Additionally, the
existing systems may be revised and updated over time.
As part of a Federal building being green-rated, DOE is considering
the development of requirements to apply the continued certification of
a building as a certified green building. DOE is considering a
requirement for Federal agencies to demonstrate that the energy use of
a certified green building is consistent with the energy use targets
identified under the green building certification program. DOE is
considering a requirement for a Federal agency to demonstrate that the
energy use, at a minimum, in the first year of a building's green
building certification is consistent with the energy use identified as
part of the certification process. If the building's energy use
exceeded the target energy use identified under the green building
rating system, DOE is considering the removal of the green building
certification.
Focusing on the energy targets identified in a green building
rating system would be consistent with the Guiding Principles MOU,
which directs the agencies to establish a whole building performance
target that takes into account the intended use, occupancy, operations,
plug loads, and other energy demands, and design. Reviewing energy use
in the first year following construction or renovation would help
ensure that green-rated buildings continue to perform as originally
specified under the rating. DOE is requesting comment on this potential
regulation.
The statute does not require DOE to identify a specific
commercially available system, but requires DOE to identify a
certification system and level for green buildings. As stated in the
statute, DOE believes that the green rating of a building must
encourage a comprehensive and environmentally sound approach to
building and renovation design. Given that systems may be further
developed, DOE is proposing minimum criteria for any system that a
Federal agency would choose to use to green rate a building.
DOE is proposing criteria for agencies to identify green rating
systems if an agency chooses to green rate a building. Under the
proposed regulations, if an agency were to choose to green rate a
building the green rating system would be required to--
(1) Enable assessors and auditors to independently verify the
criteria and measurement metrics of the system;
(2) Be developed by a certification organization that
(i) Provides an opportunity for public comment on the system; and
(ii) Provides an opportunity for development and revision of the
system through a consensus based process; and
(3) Be nationally recognized within the building industry.
[[Page 29939]]
Included in the statutory criteria for consideration by DOE in
identifying green building rating systems is the evaluation of the
robustness of the system's criteria for a high-performance green
building. DOE considers the evaluation of the ``robustness'' of a green
building rating system to include consideration of its ability to
improve over time and ensure design performance over time. As such, DOE
is also considering to require that green rating systems used by
Federal agencies are those systems that--
(1) Are subject to periodic evaluation and assessment of the
environmental and energy benefits that result under the rating system;
and
(2) Include a verification system for post-occupancy assessment of
the rated buildings to periodically demonstrate continued environmental
benefits and energy savings.
DOE understands that existing green building rating systems may not
meet these two additional criteria, but understands that several
systems are moving in a direction consistent with these additional
criteria.
Under this proposal, DOE believes that agencies would be provided
the flexibility to choose the green building rating system that best
fits their needs as long as the system meets the criteria set in this
rulemaking.
Under today's proposed rule, the minimum level of rating would need
to be a level that ensures compliance with the applicable energy
efficiency, water use, and sustainable design requirements established
in regulation. DOE requests comments as to whether the minimum level
should also reflect the Guiding Principles MOU and all applicable
executive orders.
As indicated above, GSA identified LEED Silver as a green rating
system and level that meets the criteria expressly identified in the
statute. DOE requests comment on other green rating systems and
associated levels/points that also would meet the statutory criteria.
DOE also requests comments on the additional criteria being considered
by DOE. DOE intends to make a list of any green building rating systems
determined by Federal agencies to meet the criteria adopted in the
final rule available to Federal agencies in order to provide guidance.
DOE requests comment on the proposed criteria and the potential for
other green rating systems to meet the proposed criteria.
Section 305(a)(3)(D)(v) of ECPA states that ``the Secretary may by
rule allow Federal agencies to develop internal certification
processes, using certified professionals, in lieu of certification by
the certification entity identified under clause (i)(III). The
Secretary shall include in any such rule guidelines to ensure that the
certification process results in buildings meeting the applicable
certification system and level identified under clause (i)(III). An
agency employing an internal certification process must continue to
obtain external certification by the certification entity identified
under clause (i)(III) for at least 5 percent of the total number of
buildings certified annually by the agency.'' Under the proposal
agencies would be able to submit to DOE their own internal
certification systems for approval by DOE.
III. Reference Resources
DOE has prepared a list of resources to help Federal agencies
address the principles of sustainable design. The Federal Register
final rule published on December 21, 2007 (71 FR 72565) contains
reference resources for energy efficiency. These resources come in many
forms (such as design guidance and case studies) and in a variety of
media (such as in printed documents or on Web sites).
Life-Cycle Cost Analysis--U.S. DOE Federal Energy Management Program
http://www.access.gpo.gov/nara/cfr/waisidx_04/10cfr436_04.html
The life-cycle cost analysis rules promulgated in 10 CFR part 436
Subpart A, ``Methodology and Procedures for Life Cycle Cost Analysis,''
conform to requirements in the Federal Energy Management Improvement
Act of 1988 and subsequent energy conservation legislation. The life-
cycle cost guidance, discount rates, and energy price projections are
determined annually by FEMP and the Energy Information Administration,
and published in the Annual Supplement to The National Institute of
Standards and Technology Handbook 135: ``Energy Price Indices and
Discount Factors for Life-Cycle Cost Analysis.'' FEMP also provides
guidance on the LCC requirements of Executive Order 13423 at http://www1.eere.energy.gov/femp/program/lifecycle.html and http://www1.eere.energy.gov/femp/information/download_blcc.html. Life cycle
cost rules also refer to OMB Circular A-4 and A-94, which may be found
at the following links:
Circular A-4--www.whitehouse.gov/OMB/Circulars/a004/a-4.pdf.
Circular A-94_www.whitehouse.gov/omb/circulars/a094/a094.html.
``Whole Building Design Guide--National Institute of Building
Sciences'' http://www.wbdg.org
This is a portal providing one-stop access to up-to-date
information on a wide range of building-related guidance, criteria and
technology from a whole buildings perspective. Specific guidance for
implementing the Guiding Principles for sustainable buildings is
provided at http://www.fedcenter.gov/Documents/index.cfm?id=11130&pge_prg_id=19319&pge_id=1860.
American Society of Heating, Refrigerating and Air-Conditioning
Engineers (ASHRAE) http://spc189.ashraepcs.org/
ASHRAE has issued Standard 189.1, ``Standard for the Design of
High-Performance, Green Buildings Except Low-Rise Residential
Buildings.''
``Building America''--U.S. Department of Energy http://www.eere.energy.gov/buildings/building_america/
Building America is a private/public partnership that develops
energy solutions for new and existing homes. The Building America
project combines the knowledge and resources of industry leaders with
DOE's technical capabilities. Together, they act as a catalyst for
change in the home-building industry.
Energy & Environmental Building Association (EEBA) http://www.eeba.org/
EEBA's mission is to provide education and resources to transform
the residential design, development and construction industries to
profitably deliver energy efficient and environmentally responsible
buildings and communities.
The Partnership for Advancing Technology in Housing (PATH)--U.S.
Department of Housing and Urban Development http://www.pathnet.org/
PATH is dedicated to accelerating the development and use of
technologies that radically improve the quality, durability, energy
efficiency, environmental performance, and affordability of America's
housing. PATH is a voluntary partnership between leaders of the
homebuilding, product manufacturing, insurance, and financial
industries and representatives of Federal agencies concerned with
housing.
WaterSense Program http://www.epa.gov/watersense
Launched in 2006, WaterSense is an EPA-sponsored partnership
program that seeks to protect the future of our
[[Page 29940]]
nation's water supply by promoting water efficiency and enhancing the
market for water-efficient products, programs, and practices.
WaterSense helps consumers identify water-efficient products and
programs that meet WaterSense water efficiency and performance
criteria. Products carrying the WaterSense label perform well, help
save money, and encourage innovation in manufacturing.
Federal Energy Management Program http://www1.eere.energy.gov/femp/program/sustainable_resources.html
Executive Order 13514--Federal Leadership in Environmental, Energy, and
Economic Performance http://www1.eere.energy.gov/femp/regulations/eo13514.html
This executive order references the Guiding Principles which are
incorporated into this rulemaking.
IV. Regulatory Analysis
A. Review Under Executive Order 12866, ``Regulatory Planning and
Review''
Today's notice of public rulemaking is a significant regulatory
action under section 3(f)(1) of Executive Order 12866, ``Regulatory
Planning and Review,'' 58 FR 51735 (October 4, 1993). Accordingly,
today's action was reviewed by the Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget (OMB).
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, Proper Consideration of Small Entities in
Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process. 68 FR 7990. The Department
has made its procedures and policies available on the Office of General
Counsel's Web site: http://www.gc.doe.gov.
Today's proposed rule would amend standards for the design and
construction of new Federal buildings and major renovations of Federal
buildings. Today's rulemaking is related to public property, and
therefore, is not subject to any legal requirement to publish a general
notice of proposed rulemaking. The Regulatory Flexibility Act does not
apply.
C. Review Under the Paperwork Reduction Act of 1995
This rulemaking will impose no new information or record keeping
requirements. Accordingly, OMB clearance is not required under the
Paperwork Reduction Act. (44 U.S.C. 3501 et seq.)
D. Review Under the National Environmental Policy Act of 1969
The Department prepared a draft Environmental Assessment (EA) (DOE/
EA-1463) pursuant to the Council on Environmental Quality's (CEQ)
Regulations for Implementing the Procedural Provisions of the National
Environmental Policy Act (40 CFR parts 1500-1508), the National
Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et
seq.), and DOE's NEPA Implementing Procedures (10 CFR part 1021).
The draft EA addresses the potential incremental environmental
effects attributable to the application of the proposed rules. The
draft EA has been added to the docket for this rulemaking.
E. Review Under Executive Order 13132, ``Federalism''
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4,
1999), imposes certain requirements on agencies formulating and
implementing policies or regulations that preempt State law or that
have federalism implications. The Executive Order requires agencies to
examine the constitutional and statutory authority supporting any
action that would limit the policymaking discretion of the States and
to carefully assess the necessity for such actions. The Executive Order
also requires agencies to have an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
On March 14, 2000, DOE published a statement of policy describing the
intergovernmental consultation process it will follow in the
development of such regulations. (65 FR 13735). DOE examined this
notice of proposed rulemaking and determined that it does not preempt
State law and does not have a substantial direct effect on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of Government. The proposed rulemaking would establish
requirements for Federal buildings only. No further action is required
by Executive Order 13132.
F. Review Under Executive Order 12988, ``Civil Justice Reform''
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Federal agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct, rather than a general standard and
promote simplification and burden reduction. Section 3(b) of Executive
Order 12988 specifically requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct, while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this notice of proposed rulemaking meets the relevant
standards of Executive Order 12988.
G. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
L. 104-4) requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. For a proposed regulatory action likely to result in a
rule that may cause the expenditure by State, local, and Tribal
governments, in the aggregate, or by the private sector of $100 million
or more in any 1 year (adjusted annually for inflation), section 202 of
UMRA requires a Federal agency to publish a written statement that
estimates the resulting costs, benefits, and other effects on the
national economy. (2 U.S.C. 1532(a) and (b)) The UMRA also requires a
Federal agency to develop an effective process
[[Page 29941]]
to permit timely input by elected officers of State, local, and Tribal
governments on a proposed ``significant intergovernmental mandate,''
and requires an agency plan for giving notice and opportunity for
timely input to potentially affected small governments before
establishing any requirements that might significantly or uniquely
affect small governments. On March 18, 1997, DOE published a statement
of policy on its process for intergovernmental consultation under UMRA
(62 FR 12820) (also available at http://www.gc.doe.gov). This notice of
proposed rulemaking contains neither an intergovernmental mandate nor a
mandate that may result in the expenditure of $100 million or more in
any year, so these requirements under the Unfunded Mandates Reform Act
do not apply.
H. Review Under the Treasury and General Government Appropriations Act
of 1999
Section 654 of the Treasury and General Government Appropriations
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a
Family Policymaking Assessment for any rule that may affect family
well-being. This notice of proposed rulemaking would not have any
impact on the autonomy or integrity of the family as an institution.
Accordingly, DOE has concluded that it is not necessary to prepare a
Family Policymaking Assessment.
I. Review Under Executive Order 12630, ``Governmental Actions and
Interference With Constitutionally Protected Property Rights''
The Department has determined, under Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights,'' 53 FR 8859 (March 18, 1988), that this notice of
proposed rulemaking would not result in any takings which might require
compensation under the Fifth Amendment to the United States
Constitution.
J. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by
OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002),
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
DOE has reviewed today's notice of proposed rulemaking under the OMB
and DOE guidelines and has concluded that it is consistent with
applicable policies in those guidelines.
K. Review Under Executive Order 13211, ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use''
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to the
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any proposed
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgated or is expected to lead to
promulgation of a final rule, and that: (1) Is a significant regulatory
action under Executive Order 12866, or any successor order; and (2) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy, or (3) is designated by the
Administrator of OIRA as a significant energy action. For any proposed
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution, or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution, and use.
This notice of proposed rulemaking would not have a significant adverse
effect on the supply, distribution, or use of energy and, therefore, is
not a significant energy action. Accordingly, DOE has not prepared a
Statement of Energy Effects.
V. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of today's notice
of proposed rulemaking.
List of Subjects in 10 CFR Parts 433 and 435
Buildings and facilities, Energy conservation, Engineers, Federal
buildings and facilities, Housing, Sustainable design.
Issued in Washington, DC, on April 13, 2010.
Cathy Zoi,
Assistant Secretary, Energy Efficiency and Renewable Energy.
For the reasons set forth in the preamble, DOE is proposing to
amend chapter II of title 10 of the Code of Federal Regulations as set
forth below:
PART 433--ENERGY EFFICIENCY AND SUSTAINABLE DESIGN STANDARDS FOR
NEW FEDERAL COMMERCIAL AND MULTI-FAMILY HIGH-RISE RESIDENTIAL
BUILDINGS
1. The authority citation for part 433 continues to read as
follows:
Authority: 42 U.S.C. 6831-6832, 6834-6835; 42 U.S.C. 7101 et
seq.
2. The heading for part 433 is revised to read as set forth above.
3. Revise Sec. 433.1 to read as follows:
Sec. 433.1 Purpose and scope.
This part establishes an energy efficiency performance and
sustainable design standard for the new Federal commercial and multi-
family high-rise residential buildings, for which design for
construction began on or after January 3, 2007 (except as otherwise
indicated: Solar water heating, sustainable design, and green building
certification requirements are applicable 1 year after publication of
the final rule), as required by section 305(a) of the Energy
Conservation and Production Act, as amended (42 U.S.C. 6834(a)).
Additionally, this part establishes certain requirements applicable to
major renovations of Federal commercial and multi-family high-rise
residential buildings, as indicated. For renovated buildings, those
requirements apply only to the portions of the building or building
systems that are being renovated and to the extent that the scope of
the renovation permits compliance with the applicable requirements in
this rule. Unaltered portions of the building or building systems are
not required to comply with this rule.
4. Section 433.2 is amended by:
a. Adding in alphabetical order, definitions of ``Biobased,''
``Commissioning,'' ``Critical visual tasks,'' ``Daylight factor,''
``EPA-designated product,'' ``Major renovation,'' ``Postconsumer
material,'' ``Potable water'' and ``Rapidly renewable,'' ``To the
extent practicable'' and ``USDA-designated product;'' and
b. Revising the definitions of ``Life-cycle cost,'' ``Life-cycle
cost-effective,'' and ``New Federal building.''
The additions and revisions read as follows:
Sec. 433.2 Definitions.
* * * * *
Biobased means a commercial or industrial product (other than food
or feed) that is composed, in whole or in significant part, of
biological products, including renewable agricultural
[[Page 29942]]
materials (e.g., plant, animal, and marine materials) and forestry
materials.
* * * * *
Commissioning means a quality focused process for enhancing the
delivery of a project. The process focuses upon verifying and
documenting that the facility and all of its systems and assemblies are
planned, designed, installed, tested, operated, and maintained to meet
the owner's or occupant's project requirements.
Critical visual tasks means office/classroom type work which
involves reading printed text, entering data into computers, writing
and drawing.
Daylight factor means the illuminance due to daylight on the indoor
working plane divided by the illuminance outdoors on an unobstructed
horizontal plane.
* * * * *
EPA-designated product means a product listed by EPA as a
designated product under EPA's comprehensive procurement guidelines
established under section 6002 of the Solid Waste Disposal Act. (42
U.S.C. 6962)
* * * * *
Life-cycle cost means the total cost of owning, operating and
maintaining a building, building systems, or building components,
including any mechanical systems, service water heating systems and
electric power and lighting systems located on the building site and
supporting the building over its useful life (including its fuel and
water, energy, labor, and replacement components), determined on the
basis of a systematic evaluation and comparison of alternative building
systems, except that in the case of leased buildings, the life cycle
cost shall be calculated over the effective remaining term of the
lease.
Life-cycle cost-effective means that the building, energy or water
systems in the building, components of those energy or water systems,
and conservation measures as defined in 10 CFR 436.11 in the proposed
building or major renovation have a lower life-cycle cost than the
life-cycle costs of the corresponding systems and measures in the
baseline building, as described by 10 CFR 436.19, or has a positive
estimated net savings, as described by 10 CFR 436.20; or has a savings-
to-investment ratio estimated to be greater than one, as described by
10 CFR 436.21; or has an adjusted internal rate of return, as described
by 10 CFR 436.22, that is estimated to be greater than the FEMP
discount rate.
* * * * *
Major renovation means changes to a building that provide
significant opportunities for substantial improvement in energy
efficiency. This may include but is not limited to replacement of the
HVAC system, the lighting system, the building envelope, and other
components of the building that have a major impact on energy usage.
Major renovation also includes a renovation of any kind which has a
cost exceeding 25 percent of the replacement value of the building.
New Federal building means any new building (including a complete
replacement of an existing building from the foundation up) to be
constructed by, or for the use of, any Federal agency. Such term shall
include buildings built for the purpose of being leased by a Federal
agency, and privatized military housing.
Postconsumer material means a material or finished product that has
served its intended use and has been discarded for disposal or
recovery, having completed its life as a consumer item.
Potable water means water from public drinking water systems or
from natural freshwater sources such as lakes, streams, and aquifers
where water from such natural sources would or could meet drinking
water standards.
* * * * *
Rapidly renewable refers to materials and products made from plants
that are harvested within a 10-year cycle.
* * * * *
To the extent practicable means wherever feasible, taking into
consideration health and life safety, key project design and function
objectives, agency mission, product or material availability, net
increases in life cycle cost (if significant), and total funding
available.
USDA-designated product means a product listed by USDA as a
designated product under USDA's biobased procurement program
established Section 9002 of the Farm Security and Rural Investment Act
of 2008. (7 U.S.C. 8102)
5. Add in Sec. 433.4 a new paragraph (d) to read as follows:
Sec. 433.4 Energy efficiency performance standard.
(d) Solar hot water. (1) All Federal agencies shall design new
Federal commercial and multi-family high-rise residential buildings,
for which design for construction began 1 year after publication of the
final rule, such that at least 30 percent of the hot water demand is
provided through the installation of solar hot water heaters, to the
extent life-cycle cost-effective as compared to other reasonably
available technologies.
(2) Federal buildings undergoing a major renovation, for which
design for renovation began 1 year after publication of the final rule,
must provide at least 30 percent of the hot water demand for the
portion of the building that is being renovated through the
installation of solar hot water heaters, to the extent life-cycle cost-
effective as compared to other reasonably available technologies.
6. Add Sec. 433.6 to read as follows:
Sec. 433.6 Sustainable design principles for siting, design and
construction.
(a) This section applies to new Federal commercial and multi-family
high-rise residential buildings and major renovations to Federal
commercial and multi-family high-rise residential buildings for which
design for construction began 1 year after publication of the final
rule.
(b) All Federal agencies shall design new Federal commercial and
multi-family high-rise residential buildings and major renovations to
Federal commercial and multi-family high-rise residential buildings to
meet the requirements of paragraphs (e) and (f) of this section to the
extent practicable, and paragraph (g) of this section if:
(1) The subject building is a public building as defined in 40
U.S.C. 3301 and for which transmittal of a prospectus to Congress is
required under 40 U.S.C. 3307; or
(2) The cost of the building or major renovation is at least
$2,500,000 (in 2007 dollars, adjusted for inflation).
(c) All Federal agencies shall design new Federal commercial and
multi-family high-rise residential buildings other than those that meet
the criteria in paragraph (b) of this section to comply with the
requirements in paragraph (f) of this section to the extent the
requirements are life-cycle cost-effective and paragraph (g) of this
section.
(d) The requirements of this section are not applicable to major
renovations that do not meet the criteria in paragraph (b) of this
section.
(e) (1) Integrated design. Federal agencies must use a planning and
design process that:
(i) Initiates and maintains an integrated project team as described
in the National Institute of Building Science ``Whole Building Design
Guide'' in all stages of a project's planning and delivery.
(ii) Integrates the use of OMB's Circular A-11, Section 7, Exhibit
300: Capital Asset Plan and Business Case Summary.
(iii) Establishes performance specifications consistent with this
part for siting, energy, water, materials, and
[[Page 29943]]
indoor environmental quality along with other comprehensive design
goals and ensures incorporation of these goals throughout the design
and life-cycle of the building.
(iv) Considers all stages of the building's lifecycle, including
construction, occupancy, and deconstruction.
(2) Commissioning. Federal agencies must employ commissioning
practices to verify performance of building components and systems and
help ensure that design requirements are met. Commissioning practices
must include:
(i) An experienced commissioning provider;
(ii) Inclusion of commissioning requirements in construction
documents;
(iii) A commissioning plan;
(iv) Verification of the installation, performance, and operation
of systems to be commissioned; and
(v) A commissioning report.
(f) (1) Renewable energy. Federal agencies must implement renewable
energy generation projects on agency property for agency use, when
lifecycle cost effective.
(2) Indoor water. Federal agencies must employ strategies that in
aggregate use a minimum of 20 percent less potable water than the
indoor water use baseline calculated for the building. If baseline data
is not available, the baseline for the building shall be calculated
from the Federal water use indices issued by the DOE Federal Energy
Management Program for a building of the same building type as the
proposed building.
(i) Water meters must be installed to allow for the management of
water use during occupancy.
(ii) Harvested rainwater, treated wastewater, and air conditioner
condensate shall be used to the extent practicable for non-potable use
and potable use, but shall not be used to meet the 20 percent reduction
in potable water usage.
(3) Outdoor water. Federal agencies must use water efficient
landscape and irrigation strategies, such as water reuse, recycling,
and the use of harvested rainwater, to reduce outdoor potable water
consumption by a minimum of 50 percent over the outdoor water baseline
calculated for the building. If baseline data is not available, the
baseline for the building shall be calculated from the Federal water
use indices issued by the DOE Federal Energy Management Program for a
building of the same building type as the proposed building.
(4) Water-efficient products. Use of WaterSense labeled products,
or products with comparable water efficiency, for product categories
labeled by WaterSense is required.
(5) Moisture control. Federal agencies shall establish and
implement a moisture control strategy for controlling moisture flows
and condensation to prevent building damage, minimize mold
contamination, and reduce health risks related to moisture.
(6) Day lighting. (i) Federal agencies must achieve a minimum
daylight factor of 2 percent (excluding all direct sunlight
penetration) in 75 percent of all space occupied in new buildings and
major renovations for critical visual tasks.
(ii) Federal agencies should provide automatic dimming controls or
accessible manual lighting controls, and appropriate glare control.
(7) Low-emitting materials. Federal agencies must use materials and
products with low pollutant emissions, including composite wood
products, adhesives, sealants, interior paints and finishes, carpet
systems, and furnishings.
(8) Indoor air quality during construction. (i) Federal agencies
shall follow the appropriate recommended approach of the Sheet Metal
and Air Conditioning Contractor's National Association ``Indoor Air
Quality Guidelines for Occupied Buildings under Construction, 2007,''
(incorporated by reference, see Sec. 433.3)
(ii) After construction and prior to occupancy, Federal agencies
shall conduct a minimum 72-hour flush-out with maximum outdoor air
consistent with achieving relative humidity no greater than 60 percent.
(iii) After occupancy, Federal agencies shall continue flush-out as
necessary to minimize exposure to contaminants from new building
materials.
(iv) As an alternative to the requirements in paragraphs (f)(8)(i),
(ii), and (iii) of this section, demonstrate that the contaminant
maximum concentration levels listed in the table below are not exceeded
in the completed building:
------------------------------------------------------------------------
Contaminant Maximum concentration
------------------------------------------------------------------------
Formaldehyde........................... 27 parts per billion.
Particulates (PM10).................... 50 micrograms per cubic meter.
Total volatile organic compounds 500 micrograms per cubic meter.
(TVOCs).
4-Phenylcyclohexene (4-PCH) *.......... 6.5 micrograms per cubic meter.
Carbon monoxide (CO)................... 9 parts per million and no
greater than 2 parts per
million above outdoor levels.
------------------------------------------------------------------------
* This test is only required if carpets and fabrics with styrene
butadiene rubber (SBR) latex backing are installed as part of the base
building systems.
(9) Materials. (i) Recycled content. Selection of construction
materials and products shall reflect a preference for materials and
products containing recycled materials or made from recycled materials
such that the post-consumer recycled content, plus one-half of the pre-
consumer recycled content, shall constitute a minimum of 10 percent,
based on cost or replacement value, of the total materials in the
building project. To achieve the 10 percent requirement, the following
practices may be employed:
(A) For product categories that are designated in EPA's
Comprehensive Procurement Guidelines (CPG), products meeting or
exceeding EPA's recycled content recommendations shall be used.
(B) The reuse of lumber, and masonry units, such as brick, tile,
stone and concrete block, conforming to the requirements specified in
the International Building Code shall be recognized as recycled/
recovered content.
(C) Utilize recycled-content landscaping materials (e.g., shredded
wood, landscape trimmings, compost, crushed concrete)
(ii) Biobased content. (A) Per Section 9002 of the Farm Security
and Rural Investment Act for USDA designated products, use products
with the highest content level per USDA's biobased content
recommendations as specified in the USDA Biopreferred Program.
(B) For other products, specify biobased products made from rapidly
renewable resources and certified sustainable wood products.
(iii) Environmentally preferable products. Federal agencies must
use
[[Page 29944]]
products that have a lesser or reduced effect on human health and the
environment over their life-cycle when compared with competing products
or services that serve the same purpose. Federal agencies should
consider the number of standards and ecolabels are available in the
marketplace to assist specifiers in making environmentally preferable
decisions. Consult the EPA ``Federal Green Construction Guide for
Specifiers'' for recommendations.
(iv) Waste and materials management. (A) Buildings shall plan for
recycling of specific materials, such as paper, metals, plastics,
cardboard, and electronics (and associated products).
(B) Adequate space, equipment, and transport accommodations for
recycling must be included in the building design.
(C) During a project's planning stage, local recycling and salvage
operations that could process site-related construction and demolition
materials must be identified. If such operations are available locally,
materials must be recycled or salvaged.
(v) At least 50 percent of non-hazardous and non-radioactive
construction, demolition and land clearing materials, excluding soil,
must be recycled or salvaged.
(vi) Ozone depleting compounds. The use of ozone depleting
compounds during and after construction must be eliminated where
alternative environmentally preferable products are available.
(10) Siting. (i) The site selection for Federal building
construction shall comply with all applicable Federal rules, Executive
Orders, and other Federal actions governing environmental issues
impacted by Federal building construction.
(ii) Site selection must prioritize:
(A) Building orientation to maximize energy efficiency of the
building,
(B) Locations in central business districts and rural town center,
(C) Sites well served by transit,
(D) Site design elements that ensure safe and convenient pedestrian
access,
(E) Consideration of transit access and proximity to housing
affordable to a wide range of Federal employees,
(F) Adaptive reuse or renovation of buildings,
(G) Avoiding development of sensitive land resources (such as
greenfields and USDA Prime Farmland), and
(H) Evaluation of parking management strategies.
(g)(1) Ventilation and thermal comfort. Federal agencies shall
design new buildings and major renovations to meet the requirements of
ASHRAE 55 (incorporated by reference; see Sec. 433.3), including
continuous humidity control within established ranges per climate zone,
and ASHRAE 62.1 (incorporated by reference; see Sec. 433.3).
(2) Environmental tobacco smoke control. Federal agencies shall
implement a policy and post signage indicating that smoking is
prohibited within the building and within 25 feet of all building
entrances, operable windows, and building ventilation intakes during
building occupancy. Agency policy shall be consistent with all
applicable Federal rules, Executive Orders, and other relevant Federal
actions.
7. Add Sec. 433.7 to read as follows:
Sec. 433.7 Water conservation.
If water is used to achieve energy efficiency, water conservation
technologies must be applied to the extent practicable that the
technologies are life-cycle cost-effective.
8. Revise Sec. 433.8 to read as follows:
Sec. 433.8 Life-cycle costing.
For the purpose of this section, evaluation of whether compliance
with a requirement is life-cycle cost-effective shall be considered on
the basis of individual requirements, not the entire rule. If synergies
exist that make combinations of requirements life-cycle cost-effective
where individual requirements are not, then these combination of
requirements shall be complied with. If requirements containing
numerical savings values are not life-cycle cost-effective, the design
of the proposed building shall incorporate as much savings as is life-
cycle cost-effective.
9. Add a new Sec. 433.9 to read as follows:
Sec. 433.9 Green building certification.
(a) Green building certification system. If a new Federal building
or Federal building undergoing a major renovation, meeting the criteria
in Sec. 433.6(b) for which design for construction began 1 year after
publication of the final rule is to be certified under a green building
certification system, the system under which the building is certified
must--
(1) Have the ability for assessors and auditors to independently
verify the criteria and measurement metrics of the system;
(2) Be developed by a certification organization that
(i) Provides an opportunity for public comment on the system; and
(ii) Provides an opportunity for development and revision of the
system through a consensus based process;
(3) Be nationally recognized within the building industry;
(4) Be subject to periodic evaluation and assessment of the
environmental and energy benefits that result under the rating system;
and
(5) Include a verification system for post occupancy assessment of
the rated buildings to periodically demonstrate continued environmental
benefits and energy savings.
(b) Certification level. If a new Federal building or Federal
building undergoing a major renovation meeting either of the two
criteria in Sec. 433.6(b) is to be certified under a green building
certification system, the building must be certified to a level that--
(1) Ensures compliance with--
(i) The energy efficiency performance standards of this part; and
(ii) Water use requirements of this part; and
(iii) Sustainable design requirements of this part.
(2) Promotes the high performance sustainable building guidelines
referenced in E. O. 13423 ``Strengthening Federal Environmental,
Energy, and Transportation Management.''
(c) Federal agencies may request DOE approval of internal
certification processes, using certified professionals, in lieu of
certification by a system meeting the criteria in paragraph (a) of this
section. Requests for approval must be sent to the Office of the
Federal Energy Management Program in DOE. Submissions should
demonstrate how the internal certification process would ensure
compliance with all applicable regulations under this Part. The Office
of the Federal Energy Management Program may request additional
information as necessary. The Office of Federal Energy Management will
make a determination within 120 days of a completed submission. An
agency may then employ the approved internal certification process but
must obtain external certification by a system meeting the criteria in
paragraph (a) of this section for at least 5 percent of the total
number of buildings certified annually by the agency.
PART 435--ENERGY EFFICIENCY AND SUSTAINABLE DESIGN STANDARDS FOR
NEW FEDERAL LOW-RISE RESIDENTIAL BUILDINGS
10. The authority citation for part 435 continues to read as
follows:
Authority: 42 U.S.C. 6831-6832, 6834-6835; 42 U.S.C. 8253-54; 42
U.S.C. 7101 et seq.
11. The heading for part 435 is revised to read as set forth above.
[[Page 29945]]
12. Revise Sec. 435.1 to read as follows:
Sec. 435.1 Purpose and scope.
This part establishes an energy efficiency performance and
sustainable design standard for the new Federal low-rise residential
buildings, for which design for construction began on or after January
3, 2007 (except as otherwise indicated: solar water heating,
sustainable design, and green building certification requirements are
applicable 1 year after publication of the final rule), as required by
section 305(a) of the Energy Conservation and Production Act, as
amended (42 U.S.C. 6834(a)). Additionally, this Part establishes
certain requirements applicable to major renovations of Federal low-
rise buildings, as indicating in the regulatory text. For renovated
buildings, those requirements apply only to the portions of the
building or building systems that are being renovated and to the extent
that the scope of the renovation permits compliance with the applicable
requirements in this rule. Unaltered portions of the building or
building systems are not required to comply with this rule.
13. Section 435.2 is amended by:
a. Adding in alphabetical order, the definitions ``ASHRAE,''
``Biobased,'' ``Commissioning,'' ``Critical visual tasks,'' ``Daylight
factor,'' ``EPA-designated product,'' ``High radon potential,'' ``Major
renovation,'' ``Post consumer material,'' ``Potable water,'' ``Rapidly
renewable,'' ``To the extent practicable'' and ``USDA-designated
product;'' and
b. Revising the definitions of ``Life-cycle cost,'' Life-cycle
cost-effective,'' and ``New Federal building.''
The additions and revisions read as follows:
Sec. 435.2 Definitions.
ASHRAE means the American Society of Heating, Refrigerating and
Air-Conditioning Engineers.
* * * * *
Biobased means a commercial or industrial product (other than food
or feed) that is composed, in whole or in significant part, of
biological products, including renewable agricultural materials (e.g.,
plant, animal, and marine materials) and forestry materials.
Commissioning means a quality-focused process for enhancing the
delivery of a project. The process focuses upon verifying and
documenting that the facility and all of its systems and assemblies are
planned, designed, installed, tested, operated, and maintained to meet
the owner's or occupant's project requirements.
Critical visual tasks means office/classroom type work which
involves reading printed text, entering data into computers, writing
and drawing.
Daylight factor means the illuminance due to daylight on the indoor
working plane divided by the illuminance outdoors on an unobstructed
horizontal plane.
* * * * *
EPA-designated product means a product listed by EPA as a
designated product under EPA's comprehensive procurement guidelines
established under Section 6002 of the Solid Waste Disposal Act. (42
U.S.C. 6962)
* * * * *
High radon potential means locations that have a predicted average
indoor radon screening level greater than 4 pCi/L (picocuries per
liter). For locations within the United States, these are shown on the
map at: http://www.epa.gov/radon/zonemap.html.
* * * * *
Life-cycle cost means the total cost of owning, operating and
maintaining a building, building systems, or building components,
including any mechanical systems, service water heating systems and
electric power and lighting systems located on the building site and
supporting the building over its useful life (including its fuel and
water, energy, labor, and replacement components), determined on the
basis of a systematic evaluation and comparison of alternative building
systems, except that in the case of leased buildings, the life-cycle
cost shall be calculated over the effective remaining term of the
lease.
Life-cycle cost-effective means that the building, energy or water
systems in the building, components of those energy or water systems,
and conservation measures as defined in 10 CFR 436.11 in the proposed
building or major renovation have a lower life-cycle cost than the
life-cycle costs of the corresponding systems and measures in the
baseline building, as described by 10 CFR 436.19, or has a positive
estimated net savings, as described by 10 CFR 436.20; or has a savings-
to-investment ratio estimated to be greater than one, as described by
10 CFR 436.21; or has an adjusted internal rate of return, as described
by 10 CFR 436.22, that is estimated to be greater than the FEMP
discount rate.
* * * * *
Major renovation means changes to a building that provide
significant opportunities for substantial improvement in energy
efficiency. This may include but is not limited to replacement of the
HVAC system, the lighting system, the building envelope, and other
components of the building that have a major impact on energy usage.
Major renovation also includes a renovation of any kind which has a
cost exceeding 25 percent of the replacement value of the building.
New Federal building means any new building (including a complete
replacement of an existing building from the foundation up) to be
constructed by, or for the use of, any Federal agency. Such term shall
include buildings built for the purpose of being leased by a Federal
agency, and privatized military housing.
Postconsumer material means a material or finished product that has
served its intended use and has been discarded for disposal or
recovery, having completed its life as a consumer item.
Potable water means water from public drinking water systems or
from natural freshwater sources such as lakes, streams, and aquifers
where water from such natural sources would or could meet drinking
water standards.
* * * * *
Rapidly renewable refers to materials and products made from plants
that are harvested within a 10-year cycle.
To the extent practicable means wherever feasible, taking into
consideration health and life safety, key project design and function
objectives, agency mission, product or material availability, net
increases in life-cycle cost (if significant), and total funding
available.
USDA-designated product means a product listed by USDA as a
designated product under USDA's biobased procurement program
established Section 9002 of the Farm Security and Rural Investment Act
of 2008. (7 U.S.C. 8102)
14. Add in Sec. 435.4 a new paragraph (d) to read as follows:
Sec. 435.4 Energy efficiency performance standard.
* * * * *
(d) Solar hot water. (1) All Federal agencies shall design new
Federal low-rise residential buildings, for which design for
construction began 1 year after publication of the final rule, such
that at least 30 percent of the hot water demand is provided through
the installation of solar hot water heaters, to the extent life-cycle
cost-effective as compared to other reasonably available technologies.
(2) Federal buildings undergoing a major renovation, for which
design for renovation began 1 year after publication of the final rule,
must provide at least 30 percent of the hot water demand for the
portion of the building that is being renovated through the
installation of solar hot water
[[Page 29946]]
heaters, to the extent life-cycle cost-effective as compared to other
reasonably available technologies.
15. Add Sec. 435.6 to read as follows:
Sec. 435.6 Sustainable design principles for siting, design and
construction.
(a) This section applies to new Federal low-rise residential
buildings and major renovations to Federal low-rise residential
buildings for which design for construction began 1 year after
publication of the final rule.
(b) All Federal agencies shall design new Federal low-rise
residential buildings and major renovations to Federal low-rise
residential buildings to meet the requirements of paragraphs (e) and
(f) of this section to the extent practicable, and paragraph (g) of
this section if:
(1) The subject building is a public building as defined in 40
U.S.C. 3301 and for which transmittal of a prospectus to Congress is
required under 40 U.S.C. 3307; or
(2) The cost of the building or major renovation is at least
$2,500,000 (in 2007 dollars, adjusted for inflation).
(c) All Federal agencies shall design new Federal low-rise
residential buildings other than those that meet the criteria in
paragraph (b) of this section to comply with the requirements in
paragraphs (f) of this section to the extent the requirements are life-
cycle cost-effective and paragraph (g) of this section.
(d) The requirements of this section are not applicable to major
renovations that do not meet the criteria in paragraph (b) of this
section.
(e)(1) Integrated design. Federal agencies must use a planning and
design process that:
(i) Initiates and maintains an integrated project team as described
on the National Institute of Building Science ``Whole Building Design
Guide'' in all stages of a project's planning and delivery;
(ii) Integrates the use of OMB's Circular A-11, Section 7, Exhibit
300: ``Capital Asset Plan and Business Case Summary'';
(iii) Establishes performance specifications consistent with this
Part for siting, energy, water, materials, and indoor environmental
quality along with other comprehensive design goals and ensures
incorporation of these goals throughout the design and life-cycle of
the building; and
(iv) Considers all stages of the building's lifecycle, including
construction, occupancy, and deconstruction.
(2) Commissioning. Federal agencies must employ commissioning
practices to verify performance of building components and systems and
help ensure that design requirements are met. Commissioning practices
must include:
(i) An experienced commissioning provider,
(ii) Inclusion of commissioning requirements in construction
documents,
(iii) A commissioning plan,
(iv) Verification of the installation, performance, and operation
of systems to be commissioned, and
(v) A commissioning report.
(f)(1) Renewable energy. Federal agencies must implement renewable
energy generation projects on agency property for agency use, when
life-cycle cost-effective.
(2) Indoor water. Federal agencies must employ strategies that in
aggregate use a minimum of 20 percent less potable water than the
indoor water use baseline calculated for the building. If baseline data
is not available, the baseline for the building shall be calculated
from the Federal water use indices issued by the DOE Federal Energy
Management Program for a building of the same building type as the
proposed building.
(i) Water meters must be installed to allow for the management of
water use during occupancy.
(ii) Harvested rainwater, treated wastewater, and air conditioner
condensate shall be used for nonpotable use and potable use, but shall
not be used to meet the 20 percent reduction in potable water usage.
(3) Outdoor water. Federal agencies must use water efficient
landscape and irrigation strategies, such as water reuse, recycling,
and the use of harvested rainwater, to reduce outdoor potable water
consumption by a minimum of 50 percent over the outdoor water baseline
calculated for the building. If baseline data is not available, the
baseline for the building shall be calculated from the Federal water
use indices issued by the DOE Federal Energy Management Program for a
building of the same building type as the proposed building.
(4) Water-efficient products. Use of WaterSense labeled products,
or products with comparable water efficiency, for product categories
labeled by WaterSense is required.
(5) Moisture control. Federal agencies shall establish and
implement a moisture control strategy for controlling moisture flows
and condensation to prevent building damage, minimize mold
contamination, and reduce health risks related to moisture.
(6) Day lighting. (i) Federal agencies must achieve a minimum
daylight factor of 2 percent (excluding all direct sunlight
penetration) in 75 percent of all space occupied in new buildings and
major renovations for critical visual tasks.
(ii) Federal agencies should provide automatic dimming controls or
accessible manual lighting controls, and appropriate glare control.
(7) Low-emitting materials. Federal agencies must use materials and
products with low pollutant emissions, including composite wood
products, adhesives, sealants, interior paints and finishes, carpet
systems, and furnishings.
(8) Materials. (i) Recycled content. Selection of construction
materials and products shall reflect a preference for materials and
products containing recycled materials or made from recycled materials
such that the post-consumer recycled content, plus one half of the pre-
consumer recycled content, shall constitute a minimum of 10 percent,
based on cost or replacement value, of the total materials in the
building project. To achieve the 10 percent requirement, the following
practices may be employed:
(A) For product categories that are designated in EPA's
Comprehensive Procurement Guidelines (CPG), products meeting or
exceeding EPA's recycled content recommendations shall be used.
(B) The reuse of lumber, masonry units, such as brick, tile, stone
and concrete block, conforming to the requirements specified in the
International Building Code shall be recognized as recycled/recovered
content.
(C) Utilize recycled-content landscaping materials (e.g., shredded
wood, landscape trimmings, compost, crushed concrete).
(ii) Biobased content. (A) Per Section 9002 of the Farm Security
and Rural Investment Act for USDA designated products, use products
with the highest content level per USDA's biobased content
recommendations as specified in the USDA Biopreferred Program.
(B) For other products, specify biobased products made from rapidly
renewable resources and certified sustainable wood products.
(iii) Environmentally preferable products. Federal agencies must
use products that have a lesser or reduced effect on human health and
the environment over their life-cycle when compared with competing
products or services that serve the same purpose. Federal agencies
should consider the number of standards and ecolabels are available in
the marketplace to assist specifiers in making environmentally
preferable decisions. Consult the ``EPA
[[Page 29947]]
Federal Green Construction Guide for Specifiers'' for recommendations.
(iv) Waste and materials management. (A) Buildings shall plan for
recycling of specific materials, such as paper, metals, plastics,
cardboard, and electronics (and associated products).
(B) Adequate space, equipment, and transport accommodations for
recycling must be included in the building design.
(C) During a project's planning stage, local recycling and salvage
operations that could process site-related construction and demolition
materials must be identified. If such operations are available locally,
materials must be recycled or salvaged.
(v) At least 50 percent of non-hazardous and non-radioactive
construction, demolition and land clearing materials, excluding soil,
must be recycled or salvaged.
(vi) Ozone-depleting compounds. The use of ozone-depleting
compounds during and after construction must be eliminated where
alternative environmentally preferable products are available.
(9) Siting. (i) The site selection for Federal building
construction shall comply with all applicable Federal rules, Executive
Orders, and other Federal actions governing environmental issues
impacted by Federal building construction.
(ii) Site selection must prioritize;
(A) Building orientation to maximize energy efficiency of the
building;
(B) Locations in central business districts and rural town center;
(C) Sites well served by transit;
(D) Site design elements that ensure safe and convenient pedestrian
access;
(E) Consideration of transit access and proximity to housing
affordable to a wide range of Federal employees;
(F) Adaptive reuse or renovation of buildings;
(G) Avoiding development of sensitive land resources (such as
greenfields and USDA Prime Farmland); and
(H) Evaluation of parking management strategies.
(g)(1) Ventilation and thermal comfort. Federal agencies shall
design new buildings and major renovations to meet the requirements of
ASHRAE 55 (incorporated by reference; see Sec. 435.3), including
continuous humidity control within established ranges per climate zone,
and ASHRAE 62.2, (incorporated by reference; see Sec. 435.3).
(2) Radon. New Federal low-rise residential buildings and major
renovations to such buildings in locations with a high radon potential
shall comply with ASTM 1465-08a (incorporated by reference; see Sec.
435.3).
16. Add Sec. 435.7 to read as follows:
Sec. 435.7 Water conservation.
If water is used to achieve energy efficiency, water conservation
technologies must be applied to the extent practical that the
technologies are life-cycle cost-effective.
17. Revise Sec. 435.8 to read as follows:
Sec. 435.8 Life-cycle costing.
For the purpose of this section, evaluation of whether compliance
with a requirement is life-cycle cost-effective shall be considered on
the basis of individual requirements, not the entire rule. If synergies
exist that make combinations of requirements life-cycle cost-effective
where individual requirements are not, then these combination of
requirements shall be complied with. If requirements containing
numerical savings values are not life-cycle cost-effective, the design
of the proposed building shall incorporate as much savings as is life-
cycle cost-effective.
18. Add a new Sec. 435.9 to read as follows:
Sec. 435.9 Green building certification.
(a) Green building certification system. If a new Federal building
or Federal building undergoing a major renovation, meeting the criteria
in Sec. 435.6(b) for which design for construction began 1 year after
publication of the final rule is to be certified under a green building
certification system, the system under which the building is certified
must -
(1) Have the ability for assessors and auditors to independently
verify the criteria and measurement metrics of the system;
(2) Be developed by a certification organization that
(i) Provides an opportunity for public comment on the system; and
(ii) Provides an opportunity for development and revision of the
system through a consensus based process;
(3) Be nationally recognized within the building industry;
(4) Be subject to periodic evaluation and assessment of the
environmental and energy benefits that result under the rating system;
and
(5) Include a verification system for post occupancy assessment of
the rated buildings to periodically demonstrate continued environmental
benefits and energy savings.
(b) Certification level. If a new Federal building or Federal
building undergoing a major renovation meeting either of the two
criteria in Sec. 435.6(b) is to be certified under a green building
certification system, the building must be certified to a level that -
(1) Ensures compliance with--
(i) The energy efficiency performance standards of this part; and
(ii) Water use requirements of this part; and
(iii) Sustainable design requirements of this part.
(2) Promotes the high performance sustainable building guidelines
referenced in E.O. 13423 ``Strengthening Federal Environmental, Energy,
and Transportation Management.''
(c) Federal agencies may request DOE approval of internal
certification processes, using certified professionals, in lieu of
certification by a system meeting the criteria in paragraph (a) of this
section. Requests for approval must be sent to the Office of the
Federal Energy Management Program in the DOE. Submissions should
demonstrate how the internal certification process would ensure
compliance with all applicable regulations under this Part. The Office
of the Federal Energy Management Program may request additional
information as necessary. The Office of Federal Energy Management will
make a determination within 120 days of a completed submission. An
agency may then employ the approved internal certification process but
must obtain external certification by a system meeting the criteria in
paragraph (a) of this section for at least 5 percent of the total
number of buildings certified annually by the agency.
[FR Doc. 2010-12677 Filed 5-27-10; 8:45 am]
BILLING CODE 6450-01-P