[Federal Register Volume 76, Number 154 (Wednesday, August 10, 2011)]
[Rules and Regulations]
[Pages 49279-49285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20024]
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Rules and Regulations
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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 /
Rules and Regulations
[[Page 49279]]
DEPARTMENT OF ENERGY
10 CFR Parts 433 and 435
[Docket No. EERE-2011-BT-STD-0005]
RIN 1904-AC41
Energy Efficiency Design Standards for New Federal Commercial and
Multi-Family High-Rise Residential Buildings and New Federal Low-Rise
Residential Buildings
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Final rule.
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SUMMARY: The U.S. Department of Energy (DOE) is publishing this final
rule to implement provisions in the Energy Conservation and Production
Act (ECPA) that require DOE to update the baseline Federal energy
efficiency performance standards for the construction of new Federal
buildings, including commercial and multi-family high-rise residential
buildings and low-rise residential buildings. This rule updates the
baseline Federal commercial standard to the American Society of
Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE)
Standard 90.1-2007. This rule also updates the baseline Federal
residential standard to the 2009 International Energy Conservation Code
(IECC).
DATES: This rule is effective October 11, 2011. The incorporation by
reference of certain publications in the rule is approved by the
Director of the Federal Register as of October 11, 2011.
ADDRESSES: Docket: For access to the docket to read background
documents or comments received by DOE, go to the U.S. Department of
Energy, (Office of Building Technologies Resource Room), 950 L'Enfant
Plaza, SW., Washington, DC 20024 between 9 a.m. and 4 p.m., Monday
through Friday, except Federal holidays. Please call Brenda Edwards at
(202) 586-2945 for additional information regarding visiting the
Building Technologies Resource Room. Resource Room hours are between 9
a.m. and 4 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mr. Michael Erbesfeld, U.S. Department
of Energy, Office of Energy Efficiency and Renewable Energy, Building
Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW.,
Washington, DC 20585, (202) 287-1874, e-mail:
[email protected], or Ms. Ami Grace-Tardy, Esq., U.S.
Department of Energy, Office of the General Counsel, Forrestal
Building, GC-71, 1000 Independence Avenue, SW., Washington, DC 20585,
(202) 586-5709, e-mail: [email protected].
SUPPLEMENTARY INFORMATION: This rulemaking incorporates by reference
the following standard into Part 433:
ANSI/ASHRAE/IESNA Standard 90.1-2007, Energy Standard for
Buildings Except Low-Rise Residential Buildings, 2007, American Society
of Heating Refrigerating and Air-Conditioning Engineers, Inc., ISSN
1041-2336.
Copies of this standard are available from the American Society of
Heating Refrigerating and Air-Conditioning Engineers, Inc., 1791 Tullie
Circle, NE., Atlanta, GA 30329, (404) 636-8400, http://www.ashrae.org//.
This rulemaking also incorporates by reference the following
standard into part 435:
ICC International Energy Conservation Code (IECC), 2009
Edition, January 2009, International Code Council, ISBN 978-1-58001-
742-8.
Copies of this standards are available from International Code
Council, 500 New Jersey Avenue, NW., 6th Floor, Washington, DC 20001,
1-888-ICC-SAFE (422-7233) or (202) 370-1800, http://www.iccsafe.org/Pages/default.aspx.
I. Introduction
II. Discussion of Today's Action
III. Compliance Date
IV. Reference Resources
V. Regulatory Analysis
VI. Congressional Notification
I. Introduction
Section 305 of the Energy Conservation and Production Act (ECPA),
as amended, requires DOE to establish building energy efficiency
standards for all new Federal buildings. (42 U.S.C. 6834(a)(1)) The
standards established under section 305(a)(1) of ECPA must contain
energy efficiency measures that are technologically feasible,
economically justified, and meet the energy efficiency levels in the
applicable voluntary consensus energy codes specified in section 305.
(42 U.S.C. 6834(a)(1)-(3))
Under section 305 of ECPA, the referenced voluntary consensus code
for commercial buildings (including multi-family high rise residential
buildings) is the American Society of Heating, Refrigerating, and Air-
Conditioning Engineers (ASHRAE) Standard 90.1 and the referenced code
for low-rise residential buildings is the International Energy
Conservation Code (IECC). (42 U.S.C. 6834(a)(2)(A)) DOE codified these
referenced codes into energy efficiency standards in 10 CFR parts 433,
434, and 435. Also under section 305 of ECPA, DOE must establish, by
rule, revised Federal building energy efficiency performance standards
for new Federal buildings that require such buildings be designed to
achieve energy consumption levels that are at least 30 percent below
the levels established in the referenced codes, if life-cycle cost-
effective. (42 U.S.C. 6834(a)(3)(A)(i)(I))
Under section 305 of ECPA, not later than one year after the date
of approval of each subsequent revision of the ASHRAE Standard or the
IECC, DOE must determine whether to amend the Federal building
standards with the revised voluntary standard based on the cost-
effectiveness of the revised voluntary standard. (42 U.S.C.
6834(a)(3)(B)) It is this requirement that today's rulemaking
addresses. ASHRAE Standard 90.1 and the IECC have been updated from the
versions currently referenced in DOE's regulations at 10 CFR parts 433
and 435. DOE is now revising the baseline Federal building standards
for 10 CFR parts 433 and 435.
Section 306(a) of ECPA provides that each Federal agency and the
Architect of the Capitol must adopt procedures to ensure that new
Federal buildings will meet or exceed the Federal building energy
efficiency standards established under section 305. (42 U.S.C. 6835(a))
Section 306(b) bars the head of a Federal agency from expending Federal
funds for the construction of a new Federal building unless the
building meets or
[[Page 49280]]
exceeds the applicable Federal building energy standards established
under section 305. (42 U.S.C. 6835(b)) This includes both the
requirement that all new Federal buildings comply with the baseline
standards in ASHRAE Standard 90.1 and the IECC and the requirement that
new Federal buildings achieve energy consumption levels at least 30
percent below these minimum baseline standards where life-cycle cost-
effective. (42 U.S.C. 6834 (a)(3)(A))
II. Discussion of Today's Action
DOE is issuing today's action as a final rule. As indicated above,
DOE must determine whether the energy efficiency standards for new
Federal buildings should be updated to reflect revisions to ASHRAE
Standard 90.1 or the IECC based on the cost-effectiveness of the
revisions. (42 U.S.C. 6834(a)(3)(B)) In today's final rule, DOE
determines that the energy efficiency standards for new Federal
buildings should be updated to reflect the 2007 revisions to ASHRAE
Standard 90.1 and the 2009 revisions to the IECC based on the cost-
effectiveness of the revisions.
DOE reviewed ASHRAE Standard 90.1 and the IECC standard for DOE's
state building codes program and determined that the 2007 version of
ASHRAE Standard 90.1 and the 2009 version of the IECC would achieve
greater energy efficiency than their respective prior versions. These
determinations were subject to notice and comment. See 75 FR 54117
(September 3, 2010) and 75 FR 54131 (September 3, 2010). In those prior
determinations, and again in today's rule, DOE states that the cost-
effectiveness of revisions to the voluntary codes is considered through
DOE's statutorily directed involvement in the codes process. See 75 FR
54121. Section 307 of ECPA requires DOE to participate in the ASHRAE
and IECC codes development process and to assist in determining the
cost-effectiveness of the voluntary standards. (42 U.S.C. 6836) DOE is
required to periodically review the economic basis of the voluntary
building energy codes and participate in the industry process for
review and modification, including seeking adoption of all
technologically feasible and economically justified energy efficiency
measures. (42 U.S.C. 6836(b))
ASHRAE Standard 90.1 is developed through an American National
Standards Institute (ANSI) consensus process. The ANSI consensus
process involves representatives of producers (industry), users (owners
and designers), and general (advocates and government) segments of the
building industry. Part of that process involves development of cost-
effectiveness criteria to use in the development of Standard 90.1.
Another part of the process is extensive public review and comment of
each change to Standard 90.1. During the course of the public review
and comment process, cost-effectiveness is often a topic. One of the
objectives considered by the committee developing Standard 90.1 is for
the requirements of Standard 90.1 to be cost-effective for use in the
private sector. The 90.1 committee uses a scalar ratio for cost-
effectiveness based on ASTM Standard E917-Standard Practice for
Measuring Life-Cycle Costs of Buildings and Building Systems.
Similarly, the IECC is developed by the International Code Council
(ICC) in a government-consensus process. In the ICC process, only
voting members of the ICC who are representative of state and local
governments and who are responsible for code enforcement vote on any
changes to the IECC. The public may participate in hearings and the
hearings are widely attended by the building community. The process in
the ICC is somewhat different than in Standard 90.1 in that explicit
use of life-cycle costing is not required for each change proposed to
the IECC. However, proponents of changes are required to state if a
proposed change will increase the first cost of construction and the
cost-effectiveness of proposals is widely debated during the hearings.
Given the level of debate by the entire building community, DOE
believes that the end result of the ICC code development process is an
energy code that is cost-effective.
In today's rule, DOE is amending the energy efficiency standards
applicable to new Federal buildings based on the determinations made by
DOE as to the energy efficiency improvements of ASHRAE Standard 90.1-
2007 and the 2009 IECC, as compared to their respective predecessor
versions, and based on the considerations of cost-effectiveness
incorporated into the codes processes, as well as DOE's involvement in
those processes. This final rule amends 10 CFR Parts 433 and 435 to
update the referenced baseline Federal energy efficiency performance
standards. No other changes are proposed to 10 CFR parts 433 and 435 by
this rule.
DOE notes that it is currently working on preliminary
determinations for ASHRAE Standard 90.1-2010 and the 2012 IECC. If DOE
finalizes these determinations, the Department intends to update 10 CFR
Part 433 with ASHRAE Standard 90.1-2010 and 10 CFR part 435 with the
2012 IECC.
III. Compliance Date
Today's final rule applies to new Federal buildings for which
design for construction begins on or after one year from the date of
this notice. Such buildings must be designed to exceed the energy
efficiency level of the appropriate updated voluntary standard by 30
percent if life-cycle cost-effective. However, at a minimum, such
buildings must achieve the energy efficiency equal to that of the
appropriate updated voluntary standard. One year lead time is
consistent with DOE's previous updates to the energy efficiency
baselines and the original statutory mandate for Federal building
standards. One year lead time helps minimize compliance costs to
agencies, which may have planned buildings in various stages of design,
and allows for design changes to more fully consider life-cycle cost-
effective measures (as opposed to having to revise designs in
development, which may make incorporation of energy efficiency measure
more difficult or expensive.)
IV. Reference Resources
The Department originally prepared this list of resources to help
Federal agencies achieve building energy efficiency levels of at least
30 percent below ASHRAE Standard 90.1-2004 or the 2004 IECC. The
Department has reviewed these resources and believes that they are
still applicable to helping agencies achieve building energy efficiency
levels of at least 30% better than ASHRAE Standard 90.1-2007 or the
2009 IECC. The Department has updated this resource list as necessary.
These resources come in many forms and in a variety of media. Resources
are provided for three categories: For all buildings, specifically for
commercial and multi-family high-rise residential buildings, and
specifically for low-rise residential buildings.
Resources for All Buildings
Energy Efficient Products--U.S. DOE Federal Energy Management Program
and U.S. Environmental Protection Agency (EPA) ENERGY STAR Program
http://www.eere.energy.gov/femp/procurement/ and http://www.energystar.gov/products.
Federal agencies are required by the Energy Policy Act of 2005 to
specify Federal Energy Management Program (FEMP) designated or ENERGY
STAR equipment, including building mechanical and lighting equipment
and builder-supplied appliances, for purchase and installation in all
new construction. This equipment is generally more efficient than the
[[Page 49281]]
corresponding requirements of ASHRAE Standard 90.1-2004 and the 2004
IECC, and may be used to achieve part of the savings required of
Federal building designs. (Today's rule does not specifically address
the use of this equipment, but this Web site is listed for convenience
because it is a very useful resource for achieving part of the energy
savings required by the rule.)
Life-Cycle Cost Analysis--U.S. DOE Federal Energy Management Program
http://www.access.gpo.gov/nara/cfr/waisidx_04/10cfr436_04.html.
The life-cycle cost analysis rules promulgated in 10 CFR part 436
Subpart A Life-Cycle Cost Methodology and Procedures conform to
requirements in the Federal Energy Management Improvement Act of 1988
(Pub. L. 100-615) and subsequent energy conservation legislation, as
well as Executive Order 13123, Greening the Government through
Efficient Energy Management. The life-cycle cost guidance and required
discount rates and energy price projections are determined annually by
FEMP and the Energy Information Administration, and are published in
the Annual Supplement to The National Institute of Standards and
Technology Handbook 135: ``Energy Price Indices and Discount Factors
for Life-Cycle Cost Analysis'' http://www1.eere.energy.gov/femp/pdfs/ashb10.pdf. FEMP also provides guidance on the life-cycle cost
requirements of Executive Order 13123 at http://www1.eere.energy.gov/femp/information/download_blcc.html.
ENERGY STAR Buildings--U.S. Environmental Protection Agency and U.S.
Department of Energy
http://www.energystar.gov/index.cfm?c=new_homes.nh_features
(homes) and http://www.energystar.gov/index.cfm?c=new_bldg_design.bus_target_finder (non-residential buildings).
ENERGY STAR is a Government-backed program helping businesses and
individuals protect the environment through superior energy efficiency.
The EPA specifications for ENERGY STAR-labeled homes, effective as of
the date of this rule, provide a useful prescriptive guide for meeting
the Federal energy efficiency standard for low-rise residential
buildings. EPA plans to launch ENERGY STAR specifications for new
construction and substantially rehabilitated multifamily high rise
buildings in July 2011. The benchmarking tool and other information at
the ENERGY STAR Target Finder Web site can be useful in determining an
annual energy target for building design and computer simulations,
evaluating cost-effectiveness of efficiency measures, and tracking a
building's actual energy performance after construction.
Commercial Building Initiative--U.S. DOE Building Technologies Program
http://www1.eere.energy.gov/buildings/commercial_initiative/.
A collection of design approaches, tools, technologies and case
studies focused on high performance buildings that achieve savings of
30 percent to 50 percent better than generally accepted good practice.
Building Energy Software Tools--U.S. DOE Building Technologies Program
http://www.eere.energy.gov/buildings/tools_directory/.
This directory provides information on building software tools for
evaluation energy efficiency, renewable energy, and sustainability in
buildings.
Resources for Commercial and Multi-Family High-Rise Residential
Buildings
ASHRAE Standard 90.1-2007--ASHRAE
http://www.ashrae.org (search for Standard 90.1-2007) or http://www.techstreet.com/standards/ASHRAE/90_1_2007_I_P_?product_id=1536065.
The baseline energy efficiency standard for commercial and multi-
family high-rise buildings is ANSI/ASHRAE/IESNA Standard 90.1-2007.
This link also contains a link to a read-only version of Standard 90.1-
2007.
Whole Building Design Guide--National Institute of Building Sciences
http://www.wbdg.org.
A portal providing one-stop access to up-to-date information on a
wide range of building-related guidance, criteria and technology from a
``whole buildings'' perspective.
Advanced Energy Design Guides--ASHRAE
http://www.ashrae.org/aedg.
A set of design guides for users who wish to go beyond Standard
90.1. The design guides are targeted at 30 percent better than ASHRAE
Standard 90.1-2004 (which translates to approximately 25 percent better
than Standard 90.1-2007). (DOE's final determination of energy savings
for Standard 90.1-2007 (available at http://www.energycodes.gov/status/determinations_com.stm) indicates that Standard 90.1-2007 is
approximately 4.6 percent better than Standard 90.1-2004 on a site
energy basis.) The design guides are available for free download.
Advanced Buildings\TM\ Core Performance Guide\TM\--New Buildings
Institute
http://www.newbuildings.org/advanced-design/advanced-buildings.
A set of guidelines for the design, construction, and operation of
new and renovated nonresidential buildings targeted at 30 percent
better than ASHRAE Standard 90.1-2004 (which translates to
approximately 25 percent better than ASHRAE Standard 90.1-2007).
Labs for the 21st Century--U.S. EPA and U.S. DOE
http://www.labs21century.gov/.
A Web site focused on improving the energy efficiency and
environmental performance of laboratory space. This site includes
training and educational resources and design tools focused on
laboratories.
Resources for Low-Rise Residential Buildings
2009 IECC--ICC
http://www.iccsafe.org (search for 2009 IECC) or http://www.iccsafe.org/Store/Pages/Product.aspx?category=0&cat=ICCSafe&id=3800X09.
The baseline energy efficiency standard for low-rise residential
buildings is the International Code Council (ICC) 2009 IECC.
Building America--U.S. Department of Energy
http://www.eere.energy.gov/buildings/building_america/.
Building America is a private/public partnership that develops
energy solutions for new and existing homes. The Building America
project combines the knowledge and resources of industry leaders with
DOE's technical capabilities.
Energy & Environmental Building Association (EEBA)
http://www.eeba.org/.
EEBA's mission is to provide education and resources to transform
the residential design, development and construction industries to
profitably deliver energy efficient and environmentally responsible
buildings and communities.
The Partnership for Advancing Technology in Housing (PATH)--U.S.
Department of Housing and Urban Development
http://www.pathnet.org/sp.asp?mc=about_path.
PATH is dedicated to accelerating the development and use of
technologies that radically improve the quality,
[[Page 49282]]
durability, energy efficiency, environmental performance, and
affordability of America's housing. PATH is a voluntary partnership
between leaders of the homebuilding, product manufacturing, insurance,
and financial industries and representatives of Federal agencies
concerned with housing.
V. Regulatory Analysis
A. Review Under Executive Order 12866, ``Regulatory Planning and
Review''
Today's final rule is a ``significant regulatory action'' under
Executive Order 12866, ``Regulatory Planning and Review.'' 58 FR 51735
(October 4, 1993). Accordingly, today's action was subject to review by
the Office of Information and Regulatory Affairs in the Office of
Management and Budget (OMB). OMB has completed its review.
DOE believes that although cost increases vary from project to
project, the construction cost of Federal buildings will increase only
slightly as a result of this rule. DOE estimates a construction cost
increase of less than 1% for both commercial and multi-family high-rise
residential buildings and low-rise residential buildings. The cost
estimate for commercial and multi-family high-rise residential
buildings is based on an interpolation of a cost study conducted on
several building types that are 30% or 50% more efficient than ASHRAE
Standard 90.1-2004. The cost estimate for low-rise residential
buildings is based on the national average cost increase of homes under
the 2009 IECC compared to the 2006 IECC. The 2004 and 2006 IECC are
approximately equivalent on a national average in terms of baseline
cost and efficiency, therefore it is reasonable to estimate the cost
increase for the 2009 IECC by comparing it to the 2006 IECC.
B. Administrative Procedure Act
DOE notes that the determinations regarding the updated voluntary
consensus codes were subject to notice and comment in evaluating the
voluntary consensus codes in the context of State building codes. See
75 FR 54117 (September 3, 2010) and 75 FR 54131 (September 3, 2010).
The determinations made in the context of the State codes are equally
applicable in the context of Federal buildings. DOE finds that
providing notice and comment on the determinations again in the context
of Federal buildings would be unnecessary. The fact that the voluntary
consensus codes apply to Federal buildings as opposed to the general
building stock does not require a different evaluation of energy
efficiency and cost-effectiveness. Additionally, DOE notes that today's
rule, amending standards on energy efficiency performance standards for
the design and construction of new Federal buildings, is a rule
relating to public property, and therefore, is not subject to the
rulemaking requirements of the Administrative Procedure Act, including
the requirement to publish a notice of proposed rulemaking. (See, 5
U.S.C. 553(a)(2))
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, Proper Consideration of Small Entities in
Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process, 68 FR 7990. The Department
has made its procedures and policies available on the Office of General
Counsel's Web site: http://www.gc.doe.gov.
DOE has determined that a notice of proposed rulemaking is not
required by 5 U.S.C. 553 or any other law for issuance of this rule. As
such the analytical requirements of the Regulatory Flexibility Act do
not apply.
D. Review Under the Paperwork Reduction Act of 1995
This rulemaking will impose no new information or recordkeeping
requirements. Accordingly, Office of Management and Budget (OMB)
clearance is not required under the Paperwork Reduction Act. (44 U.S.C.
3501 et seq.)
E. Review Under the National Environmental Policy Act of 1969
The Department prepared an Environmental Assessment (EA) (DOE/EA-
1871) entitled, ``Environmental Assessment for Final Rule, 10 CFR part
433, `Energy Efficiency Standards for New Federal Commercial and Multi-
Family High-Rise Residential Buildings,' and 10 CFR part 435, `Energy
Efficiency Standards for New Federal Low-Rise Residential Buildings'
Baseline Standards Update,'' pursuant to the Council on Environmental
Quality's (CEQ) Regulations for Implementing the Procedural Provisions
of the National Environmental Policy Act (40 CFR parts 1500-1508), the
National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C.
4321 et seq.), and DOE's NEPA Implementing Procedures (10 CFR part
1021).
The EA addresses the possible incremental environmental effects
attributable to the application of the final rule. The only anticipated
impact would be a decrease in outdoor air pollutants resulting from
decreased fossil fuel burning for energy use in Federal buildings.
Therefore, DOE has issued a Finding of No Significant Impact (FONSI),
pursuant to NEPA, the regulations of the Council on Environmental
Quality (40 CFR parts 1500-1508), and DOE's regulations for compliance
with NEPA (10 CFR part 1021).
To identify the potential environmental impacts that may result
from implementing the final rule on new Federal commercial buildings,
DOE compared the final rule with the ``no-action alternative'' of using
the current Federal standards. This comparison essentially compares the
baseline standards--ANSI/ASHRAE/IESNA Standards 90.1-2004 and 90.1-2007
for Federal commercial and multi-family high-rise residential
buildings, and the 2004 Supplement to the 2003 IECC to the 2009 IECC
for Federal low-rise residential buildings. This comparison is
identical to that undertaken by DOE in its determinations of energy
savings of those standards and codes. For the purposes of this
environmental assessment, DOE also investigated the impact of buildings
achieving energy consumption below Standard 90.1-2007 or the 2009 IECC
in increments of 10 percent, up to 50 percent. The Federal government
is estimated to construct about 2000 covered, low-rise housing units
annually, which, if built to realize a 30 percent savings over the 2009
IECC, will avoid 3,600 metric tons of carbon dioxide emissions, 22
metric tons of methane emissions, 1 metric ton of nitrogen oxide, and 2
metric tons of sulfur dioxide each in the first year the final rule is
in effect. These savings would compound in future years as more and
more Federal construction occurs.
For commercial and multi-family high-rise residential buildings,
the Federal government is projected to construct 40 million square feet
of Federal commercial buildings annually. Federal multi-family high-
rise residential buildings are rare. Looking just at Federal commercial
buildings,
[[Page 49283]]
and assuming a 30 percent savings over Standard 90.1-2007, 6,200 metric
tons of carbon dioxide will be avoided (relative to the existing 10 CFR
part 433) in the first year the final rule is in effect. These savings
would compound in future years as more and more Federal construction
occurs. Again assuming a 30 percent savings over Standard 90.1-2007, 24
metric tons of methane emissions will be avoided, 6 metric tons of
nitrogen oxide emissions will be avoided, and 14 metric tons of sulfur
dioxide emissions will be avoided, all in the first year the rule is in
effect.
F. Review Under Executive Order 13132, ``Federalism''
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4,
1999), imposes certain requirements on agencies formulating and
implementing policies or regulations that preempt State law or that
have federalism implications. The Executive Order requires agencies to
examine the constitutional and statutory authority supporting any
action that would limit the policymaking discretion of the States and
to carefully assess the necessity for such actions. The Executive Order
also requires agencies to have an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
On March 14, 2000, DOE published a statement of policy describing the
intergovernmental consultation process it will follow in the
development of such regulations, 65 FR 13735. DOE examined this rule
and determined that it does not preempt State law and does not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of Government. No further
action is required by Executive Order 13132.
G. Review Under Executive Order 12988, ``Civil Justice Reform''
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Federal agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct, rather than a general standard and
promote simplification and burden reduction. Section 3(b) of Executive
Order 12988 specifically requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct, while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this rule meets the relevant standards of Executive
Order 12988.
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
L. 104-4) requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. For a proposed regulatory action likely to result in a
rule that may cause the expenditure by State, local, and Tribal
governments, in the aggregate, or by the private sector of $100 million
or more in any one year (adjusted annually for inflation), section 202
of UMRA requires a Federal agency to publish a written statement that
estimates the resulting costs, benefits, and other effects on the
national economy. (2 U.S.C. 1532(a) and (b)) The UMRA also requires a
Federal agency to develop an effective process to permit timely input
by elected officers of State, local, and Tribal governments on a
proposed ``significant intergovernmental mandate'' and requires an
agency plan for giving notice and opportunity for timely input to
potentially affected small governments before establishing any
requirements that might significantly or uniquely affect small
governments. On March 18, 1997, DOE published a statement of policy on
its process for intergovernmental consultation under UMRA (62 FR 12820)
(also available at http://www.gc.doe.gov). This final rule contains
neither an intergovernmental mandate nor a mandate that may result in
the expenditure of $100 million or more in any year by State, local,
and Tribal governments, in the aggregate, or by the private sector, so
these requirements under the Unfunded Mandates Reform Act do not apply.
I. Review Under the Treasury and General Government Appropriations Act
of 1999
Section 654 of the Treasury and General Government Appropriations
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a
Family Policymaking Assessment for any rule that may affect family
well-being. This final rule would not have any impact on the autonomy
or integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
J. Review Under Executive Order 12630, ``Governmental Actions and
Interference With Constitutionally Protected Property Rights''
The Department has determined, under Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights'' 53 FR 8859 (March 18, 1988), that this rule would not
result in any takings which might require compensation under the Fifth
Amendment to the United States Constitution.
K. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by
OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002),
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
DOE has reviewed today's final rule under the OMB and DOE guidelines
and has concluded that it is consistent with applicable policies in
those guidelines.
L. Review Under Executive Order 13211, ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use''
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to the
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any proposed
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgated or is expected to lead to
promulgation of a final rule, and that:
[[Page 49284]]
(1) Is a significant regulatory action under Executive Order 12866, or
any successor order; and (2) is likely to have a significant adverse
effect on the supply, distribution, or use of energy, or (3) is
designated by the Administrator of OIRA as a significant energy action.
For any proposed significant energy action, the agency must give a
detailed statement of any adverse effects on energy supply,
distribution, or use should the proposal be implemented, and of
reasonable alternatives to the action and their expected benefits on
energy supply, distribution, and use. This final rule would not have a
significant adverse effect on the supply, distribution, or use of
energy and, therefore, is not a significant energy action. Accordingly,
DOE has not prepared a Statement of Energy Effects.
VI. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule prior to its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(2).
List of Subjects in 10 CFR Parts 433 and 435
Buildings and facilities, Energy conservation, Engineers, Federal
buildings and facilities, Housing, Incorporation by reference.
Issued in Washington, DC, on July 13, 2011.
Kathleen Hogan,
Deputy Assistant Secretary for Energy Efficiency, Office of Technology
Development, Energy Efficiency and Renewable Energy.
For the reasons set forth in the preamble, the Department of Energy
amends chapter II of title 10 of the Code of Federal Regulations as set
forth below:
PART 433--ENERGY EFFICIENCY STANDARDS FOR NEW FEDERAL COMMERCIAL
AND MULTI-FAMILY HIGH-RISE RESIDENTIAL BUILDINGS
0
1. The authority citation for part 433 continues to read as follows:
Authority: 42 U.S.C. 6831-6832; 6834-6835; 42 U.S.C. 7101 et
seq.
0
2. The heading for part 433 is revised to read as set forth above.
0
3. Amend Sec. 433.2 by removing the definition of ``Baseline
building'' and adding in alphabetical order the definitions of ``ASHRAE
Baseline Building 2004'' and ``ASHRAE Baseline Building 2007'' to read
as follows:
Sec. 433.2 Definitions.
* * * * *
ASHRAE Baseline Building 2004 means a building that is otherwise
identical to the proposed building but is designed to meet, but not
exceed, the energy efficiency specifications in ANSI/ASHRAE/IESNA
Standard 90.1-2004, Energy Standard for Buildings Except Low-Rise
Residential Buildings, January 2004 (incorporated by reference, see
Sec. 433.3).
ASHRAE Baseline Building 2007 means a building that is otherwise
identical to the proposed building but is designed to meet, but not
exceed, the energy efficiency specifications in ANSI/ASHRAE/IESNA
Standard 90.1-2007, Energy Standard for Buildings Except Low-Rise
Residential Buildings, December 2007 (incorporated by reference, see
Sec. 433.3).
* * * * *
0
4. Revise Sec. 433.3 to read as follows:
Sec. 433.3 Materials incorporated by reference.
(a) General. The Department of Energy incorporates by reference the
energy performance standards listed in paragraph (b) of this section
into 10 CFR part 433. The Director of the Federal Register has approved
the material listed in paragraph (b) of this section for incorporation
by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Any
subsequent amendment to a standard by the standard-setting organization
will not affect DOE regulations unless and until DOE amends its energy
performance standards. Material is incorporated as it exists on the
date of the approval, and a notice of any change in the material will
be published in the Federal Register. All approved material is
available for inspection at the U.S. Department of Energy, Office of
Energy Efficiency and Renewable Energy, Building Technologies Program,
Sixth Floor, 950 L'Enfant Plaza, SW., Washington, DC 20024, (202) 586-
2945. Also, this material is available for inspection at the National
Archives and Records Administration (NARA). For information on the
availability of this material at NARA, call 202-741-6030, or go to:
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
(b) ASHRAE. American Society of Heating Refrigerating and Air-
Conditioning Engineers, Inc., 1791 Tullie Circle, NE. Atlanta, GA
30329, (404) 636-8400; or go to, http://www.ashrae.org//.
(1) ANSI/ASHRAE/IESNA 90.1-2004, (``ASHRAE 90.1-2004''), Energy
Standard for Buildings Except Low-Rise Residential Buildings, January
2004, ISSN 1041-2336, IBR approved for Sec. Sec. 433.2, 433.4, 433.5;
(2) ANSI/ASHRAE/IESNA Standard 90.1-2007, (``ASHRAE 90.1-2007''),
Energy Standard for Buildings Except Low-Rise Residential Buildings,
2007, ISSN 1041-2336, IBR approved for Sec. Sec. 433.2, 433.4, 433.5.
0
5. In Sec. 433.4, revise paragraph (a) to read as follows:
Sec. 433.4 Energy efficiency performance standard.
(a) (1) All Federal agencies shall design new Federal buildings
that are commercial and multi-family high-rise residential buildings,
for which design for construction began on or after January 3, 2007,
but before August 10, 2012, to:
(i) Meet ASHRAE 90.1-2004, (incorporated by reference, see Sec.
433.3); and
(ii) If life-cycle cost-effective, achieve energy consumption
levels, calculated consistent with paragraph (b) of this section, that
are at least 30 percent below the levels of the ASHRAE Baseline
Building 2004.
(2) All Federal agencies shall design new Federal buildings that
are commercial and multi-family high-rise residential buildings, for
which design for construction began on or after August 10, 2012, to:
(i) Meet ASHRAE 90.1-2007, (incorporated by reference, see Sec.
433.3); and
(ii) If life-cycle cost-effective, achieve energy consumption
levels, calculated consistent with paragraph (b) of this section, that
are at least 30 percent below the levels of the ASHRAE Baseline
Building 2007.
* * * * *
0
6. In Sec. 433.5, revise paragraph (a) to read as follows:
Sec. 433.5 Performance level determination.
(a)(1) For Federal buildings for which design for construction
began on or after January 3, 2007, but before August 10, 2012, each
Federal agency shall determine energy consumption levels for both the
ASHRAE Baseline Building 2004 and proposed building by using the
Performance Rating Method found in Appendix G of ASHRAE 90.1-2004
(incorporated by reference, see Sec. 433.3), except the formula for
calculating the Performance Rating in paragraph G1.2 shall read as
follows:
Percentage improvement = 100 x ((Baseline building consumption--
Receptacle and process loads)--(Proposed building consumption -
[[Page 49285]]
Receptacle and process loads))/(Baseline building consumption--
Receptacle and process loads) (which simplifies as follows):
Percentage improvement = 100 x (Baseline building consumption--Proposed
building consumption)/(Baseline building consumption--Receptacle and
process loads).
(2) For Federal buildings for which design for construction began
on or after August 10, 2012, each Federal agency shall determine energy
consumption levels for both the ASHRAE Baseline Building 2007 and
proposed building by using the Performance Rating Method found in
Appendix G of ASHRAE 90.1-2007 (incorporated by reference, see Sec.
433.3), except the formula for calculating the Performance Rating in
paragraph G1.2 shall read as follows:
Percentage improvement = 100 x ((Baseline building consumption--
Receptacle and process loads)--(Proposed building consumption -
Receptacle and process loads))/(Baseline building consumption--
Receptacle and process loads) (which simplifies as follows):
Percentage improvement = 100 x (Baseline building consumption--Proposed
building consumption)/(Baseline building consumption-Receptacle and
process loads).
* * * * *
PART 435--ENERGY EFFICIENCY STANDARDS FOR NEW FEDERAL LOW-RISE
RESIDENTIAL BUILDINGS
0
7. The authority citation for part 435 continues to read as follows:
Authority: 42 U.S.C. 6831-6832, 6834-6836; 42 U.S.C. 8253-54, 42
U.S.C. 7101 et seq.
0
8. Amend Sec. 435.2 by removing the definition of ``Baseline
building'' and adding in alphabetical order the definitions of ``IECC
Baseline Building 2004'' and ``IECC Baseline Building 2009'' to read as
follows:
Sec. 435.2 Definitions.
* * * * *
IECC Baseline Building 2004 means a building that is otherwise
identical to the proposed building but is designed to meet, but not
exceed, the energy efficiency specifications in the ICC International
Energy Conservation Code, 2004 Supplement Edition, January 2005
(incorporated by reference, see Sec. 435.3).
IECC Baseline Building 2009 means a building that is otherwise
identical to the proposed building but is designed to meet, but not
exceed, the energy efficiency specifications in the ICC International
Energy Conservation Code, 2009 Edition, January 2009 (incorporated by
reference, see Sec. 435.3).
* * * * *
0
9. Revise Sec. 435.3 to read as follows:
Sec. 435.3 Materials incorporated by reference.
(a) General. The Department of Energy incorporates by reference the
energy performance standards listed in paragraph (b) of this section
into 10 CFR part 435. The Director of the Federal Register has approved
the material listed in paragraph (b) of this section for incorporation
by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Any
subsequent amendment to a standard by the standard-setting organization
will not affect DOE regulations unless and until DOE amends its energy
performance standards. Material is incorporated as it exists on the
date of the approval, and a notice of any change in the material will
be published in the Federal Register. All approved material is
available for inspection at the U.S. Department of Energy, Office of
Energy Efficiency and Renewable Energy, Building Technologies Program,
Sixth Floor, 950 L'Enfant Plaza, SW., Washington, DC 20024, (202) 586-
2945. Also, this material is available for inspection at the National
Archives and Records Administration (NARA). For information on the
availability of this material at NARA, call 202-741-6030, or go to:
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
(b) ICC. International Code Council, 500 New Jersey Avenue, NW.,
6th Floor, Washington, DC 20001, 1-888-ICC-SAFE or (202) 370-1800, or
go to http://www.iccsafe.org/Pages/default.aspx.
(1) ICC International Energy Conservation Code (IECC), 2004
Supplement Edition (``IECC 2004''), January 2005, ISBN 7801S04, IBR
approved for Sec. Sec. 435.2, 435.4, 435.5;
(2) ICC International Energy Conservation Code (IECC), 2009 Edition
(``IECC 2009''), January 2009, ISBN 978-1-58001-742-8, IBR approved for
Sec. Sec. 435.2, 435.4, 435.5.
0
10. In Sec. 435.4, revise paragraph (a) to read as follows:
Sec. 435.4 Energy efficiency performance standard.
(a)(1)All Federal agencies shall design new Federal buildings that
are low-rise residential buildings, for which design for construction
began on or after January 3, 2007, but before August 10, 2012, to:
(i) Meet the IECC 2004 (incorporated by reference, see Sec.
435.3), and
(ii) If life-cycle cost-effective, achieve energy consumption
levels, calculated consistent with paragraph (b) of this section, that
are at least 30 percent below the levels of the IECC Baseline Building
2004.
(2) All Federal agencies shall design new Federal buildings that
are low-rise residential buildings, for which design for construction
began on or after August 10, 2012, to:
(i) Meet the IECC 2009 (incorporated by reference, see Sec.
435.3), and
(ii) If life-cycle cost-effective, achieve energy consumption
levels, calculated consistent with paragraph (b) of this section, that
are at least 30 percent below the levels of the IECC Baseline Building
2009.
* * * * *
0
11. Revise Sec. 435.5 to read as follows:
Sec. 435.5 Performance level determination.
(a) For Federal buildings for which design for construction began
on or after January 3, 2007, but before August 10, 2012, each Federal
agency shall determine energy consumption levels for both the IECC
Baseline Building 2004 and proposed building by using the Simulated
Performance Alternative found in section 404 of the IECC 2004
(incorporated by reference, see Sec. 435.3).
(b) For Federal buildings for which design for construction began
on or after August 10, 2012, each Federal agency shall determine energy
consumption levels for both the IECC Baseline Building 2009 and
proposed building by using the Simulated Performance Alternative found
in section 405 of the IECC 2009 (incorporated by reference, see Sec.
435.3).
[FR Doc. 2011-20024 Filed 8-9-11; 8:45 am]
BILLING CODE 6450-01-P