DoE Proposes New Fed Energy Saving Standards

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4 December 2006

[Federal Register: December 4, 2006 (Volume 71, Number 232)]

[Rules and Regulations]

[Page 70275-70284]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr04de06-2]

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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Parts 433, 434, and 435

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

RIN 1904-AB13

Energy Conservation Standards for New Federal Commercial and

Multi-Family High-Rise Residential Buildings and New Federal Low-Rise

Residential Buildings

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

Energy.

ACTION: Interim final rule; request for comments.

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SUMMARY: The U.S. Department of Energy (DOE) is publishing this interim

final rule to implement provisions in the Energy Policy Act of 2005

that require DOE to establish revised energy efficiency performance

standards for the construction of all new Federal buildings, including

both commercial and multi-family high-rise residential buildings and

low-rise residential buildings.

DATES: The amendment made by this interim final rule is effective

January 3, 2007. The incorporation by reference of certain publications

in the interim final

[[Page 70276]]

rule is approved by the Director of the Federal Register as of January

3, 2007.

Comment Date: Comments must be received by DOE no later than

February 2, 2007. 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 10 CFR 1004.11.

ADDRESSES: You may submit comments, identified by any of the following

methods:

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

E-mail: cyrus.nasseri@ee.doe.gov. Include EE-RM/STD-02-112

and/or RIN 1904-AB13 in the subject line of the message.

Postal Mail: Mr. Cyrus Nasseri, U.S. Department of Energy,

Federal Energy Management Program, Mailstop EE-2L, Energy Standard for

New Federal Commercial and Multi-Family High-Rise Residential Buildings

and Energy Standards for New Federal Low-Rise Residential Buildings,

EE-RM/STD-02-112 and/or RIN 1904-AB13, 1000 Independence Avenue, SW.,

Washington, DC 20585-0121. Telephone: (202) 586-9138. Please submit one

signed paper original.

Hand Delivery/Courier: Mr. Cyrus Nasseri, U.S. Department

of Energy, Federal Energy Management Program, Room 1M-048, 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 1M-048 (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 Mr. Cyrus Nasseri at the above

telephone number for additional information regarding visiting the

Resource Room.

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:

cyrus.nasseri@ee.doe.gov, or Stephen P. Walder, 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) 586-9209, e-mail:

stephen.walder@ee.doe.gov, or Chris Calamita, Esq., U.S. Department of

Energy, Office of the General Counsel, Forrestal Building, GC-72, 1000

Independence Avenue, SW., Washington, DC 20585, (202) 586-9507, e-mail:

Christopher.Calamita@hq.doe.gov.

SUPPLEMENTARY INFORMATION: In this rule, DOE incorporates by reference

into Title 10, Code of Federal Regulations (CFR), Parts 433 and 435,

ANSI/ASHRAE/IESNA Standard 90.1-2004, Energy Standard for Buildings

Except Low-Rise Residential Buildings, January 2004, American Society

of Heating Refrigerating and Air-Conditioning Engineers, Inc., ISSN

1041-2336, and ICC International Energy Conservation Code (IECC), 2004

Supplement Edition, January 2005, International Code Council, ISBN

7801S04.

You can view copies of these standards in the resource room of the

Building Technologies Program, Room IJ-018 at the U.S. Department of

Energy, 1000 Independence Avenue, SW., Washington, DC 20585, between

the hours of 9 a.m. and 4 p.m., Monday through Friday, except Federal

holidays. Please call Ms. Brenda Edwards-Jones at (202) 586-2945 for

additional information regarding visiting the resource room.

You can purchase copies of ASHRAE Standard 90.1-2004 from ASHRAE

Publication Sales, 1791Tullie Circle, NE, Atlanta, GA 30329, http://resourcecenter.ashrae.org/store/ashrae/

; and copies of the 2004

International Energy Conservation Code, chapters 1-4 from the

International Code Council, Publications, 4051 West Flossmoor Road,

Country Club Hills, IL 60478-5795, http://www.iccsafe.org/e/category.html

I. Introduction

II. Discussion of Today's Action

III. Section 109 of the Energy Policy Act of 2005 Requirements Not

Addressed in Today's Rule

IV. Reference Resources

V. Procedural Requirements

VI. Congressional Notification

VII. Approval of the Office of the Secretary

I. Introduction

Section 305 of the Energy Conservation and Production Act (Pub. L.

94-385, ECPA) was amended by Title I of the Energy Policy Act of 1992

(Pub. L. 102-486). Section 305(a)(1) of ECPA requires DOE to establish

building energy efficiency standards for all new Federal buildings. (42

U.S.C. 6834(a)(1).) Section 305(a)(1) requires standards for Federal

buildings that contain energy efficiency measures that are

technologically feasible and economically justified but, at a minimum,

require the subject buildings to meet the energy saving and renewable

energy specifications in the applicable voluntary consensus energy code

specified in section 305(a)(2). (42 U.S.C. 6834(a)(1) and (2).) Until

amended by the Energy Policy Act of 2005 (Pub. L. 109-58), section

305(a)(2) set the minimum or baseline standards as the CABO (Council of

American Building Officials) Model Energy Code, 1992 (for residential

buildings) and ASHRAE (American Society of Heating, Refrigerating, and

Air-Conditioning Engineers) Standard 90.1-1989 (for commercial and

multi-family high rise residential buildings). Section 305(a)(2)(C) of

ECPA requires that DOE consider, in consultation with the Environmental

Protection Agency and other Federal agencies, and where appropriate,

measures regarding radon and other indoor air pollutants.

Section 306(a)(1) of ECPA provides that each Federal agency must

adopt procedures to ensure that new Federal buildings will meet or

exceed the Federal building energy efficiency standards established

under section 305. (42 U.S.C. 6835(a)(1).) Additionally, section

306(a)(2) extends the requirements for new Federal buildings

established under section 305 to buildings under the jurisdiction of

the Architect of the Capitol. (42 U.S.C. 6835(a)(2).) Section 306(b)

bars the head of a Federal agency from expending Federal funds for the

construction of a new Federal building unless the building meets or

exceeds the applicable Federal building energy standards established

under section 305. (42 U.S.C. 6835(b).)

DOE established Federal building standards under ECPA and initially

placed both the commercial and residential standards in Part 435 of

Title 10 of the CFR. In a final rule published on October 6, 2000, DOE

established new energy efficiency standards for new Federal commercial

and multi-family high-rise residential buildings (65 FR 59999). DOE

placed the revised Federal commercial and multi-family high-rise

[[Page 70277]]

residential building standards in a new 10 CFR Part 434, entitled

``Energy Code for New Federal Commercial and Multi-Family High Rise

Residential Buildings.'' The standards for Federal low-rise residential

buildings remain in 10 CFR Part 435.

Section 109 of the Energy Policy Act of 2005 amended section 305 of

ECPA. (42 U.S.C. 6835.) Section 109 replaced the minimum standards

referenced in section 305(a)(2)(A) with references to updated building

codes that are widely used today. For residential buildings, CABO Model

Energy Code, 1992, was replaced with the 2004 International Energy

Conservation Code (IECC). For commercial and multi-family high rise

buildings, ASHRAE Standard 90.1-1989 was replaced with ASHRAE Standard

90.1-2004.

Section 109 of the Energy Policy Act of 2005 also added a new

section 305(a)(3)(A) that requires DOE to, by rule, establish revised

Federal building energy efficiency performance standards not later than

August 8, 2006. (42 U.S.C. 6834(a)(3)(A).) Under the revised standards,

new Federal buildings must be designed to achieve energy consumption

levels that are at least 30 percent below the updated minimum standards

referenced in section 305(a)(2), if life-cycle cost-effective. (42

U.S.C. 6834(a)(3)(A)(i)(I).) Additionally, Federal agencies must apply,

if life-cycle cost-effective, sustainable design principles to the

siting, design, and construction of all new and replacement buildings.

(42 U.S.C. 6834(a)(3)(A)(i)(II).) If water is used to achieve energy

efficiency, water conservation technologies shall be applied to the

extent that such technologies are life-cycle cost-effective. (42 U.S.C.

6834 (a)(3)(A)(ii).)

II. Discussion of Today's Action

DOE is issuing today's action as an interim final rule. Today's

final rule deals solely with the energy efficiency of new Federal

buildings, which are public property. Matters that relate to public

property are excepted from prior notice and comment requirements. (5

U.S.C. 553(a)(2).) Additionally, the explicitness of the direction

provided to DOE for this rule in Section 109 of the Energy Policy Act

of 2005 supports issuance of an interim final rule, as a matter of

policy. The interim final rule incorporates updated versions of ANSI/

ASHRAE/IESNA Standard 90.1-2004, and the IECC standard as directed by

statute. The interim final rule also establishes a requirement for new

Federal buildings to achieve a level of energy efficiency 30 percent

greater than that of the ANSI/ASHRAE/IESNA or IECC levels, as

appropriate, when life-cycle cost-effective, again as directed by the

statute. DOE also decided that the interim final rule approach offered

the best opportunity to achieve the goals of Section 109 of the Energy

Policy Act of 2005 as soon as possible.

This interim final rule incorporates by reference ANSI/ASHRAE/IESNA

Standard 90.1-2004, Energy Standard for Buildings Except Low-Rise

Residential Buildings, and the 2004 International Energy Conservation

Code as prescribed by Congress in section 109 of the Energy Policy Act

of 2005, into 10 CFR Parts 433 and 435, respectively. Under today's

interim final rule, new Federal commercial and multi-family high-rise

residential buildings, for which design for construction begins on or

after the effective date of today's interim final rule, must be

designed to comply with the ASHRAE standard. New Federal low-rise

residential buildings, for which design for construction begins on or

after the effective date of today's interim final rule, must be

designed to comply with the IECC standard.

In addition to complying with the appropriate incorporated

standard, a new Federal building must also be designed to achieve an

energy consumption level that is at least 30 percent below the level

achieved under that standard, if life-cycle cost-effective. Congress

expressly specified a minimum performance requirement of a 30 percent

improvement, if life-cycle cost effective. Although the statute

requires DOE to establish performance standards that are ``at least''

30 percent below the levels in the incorporated ASHRAE and IECC

standards, the standards that DOE establishes today do not require

Federal agencies to consider the life-cycle cost effectiveness of

improvements beyond the 30 percent level.

It is DOE's view that had Congress sought to require improvements

at a maximum level of life-cycle cost effectiveness, it would have

mandated designs to achieve that level and would not have specified the

30 percent minimum. Moreover, absent some direction in the statute, DOE

is unable to specify in today's rule an energy consumption level that

is greater than 30 percent below the levels achieved under the

incorporated standards, but less than the maximum level that would be

cost effective. However, as indicated by the words ``at least,''

Federal agencies are not precluded from designing buildings to achieve

greater improvements, and DOE encourages agencies to design new Federal

buildings to achieve lower energy consumption levels if life-cycle cost

effective.

Further, the experiences of ASHRAE (with the development of their

Advanced Energy Design Guides for small office and small retail

buildings) and the New Buildings Institute's (NBI) Advanced Buildings

program indicate that a savings 30 percent beyond that achieved through

the incorporated standards is achievable in most building types with

measures that are relatively ``standard;'' i.e., with measures that are

widely available and with which the general industry is familiar. The

30-percent requirement should not necessitate consideration of measures

that are limited in availability or with which the general industry is

unfamiliar.

If the additional 30 percent savings is not life-cycle cost-

effective, an agency must evaluate the cost-effectiveness of

alternative designs at successive decrements below 30 percent (e.g., 25

percent, 20 percent, etc.) in order to identify the most energy-

efficient design that is life-cycle cost-effective for that building.

However, the building must remain compliant with the ANSI/ASHRAE/IESNA

Standard 90.1-2004, or IECC standard, as applicable. By requiring

consideration of the life-cycle cost effectiveness of improvements if a

30 percent improvement is not life-cycle cost effective, today's final

rule ensures that all readily available energy saving measures are

considered.

Today's rule also specifies that the methodology defined in 10 CFR

part 436, subpart A, be used to establish the life-cycle cost-

effectiveness of design measures used to achieve energy consumption

levels below the criteria found in the minimum level standards

described above. This is done to be consistent with Executive Order

13123, which requires Federal agencies to use this methodology in the

design of new Federal buildings, and to respond to the requirements in

the Energy Policy Act of 2005 that requirements of the new standards be

life-cycle cost-effective. Federal agencies may choose 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 discount rate as listed in OMB

Circular Number A-94 ``Guidelines and Discount Rates for Benefit-Cost

Analysis of Federal Programs.''

In applying this methodology to analysis of new Federal buildings,

agencies must estimate the life-cycle

[[Page 70278]]

costs and energy consumption of the planned building as designed and an

otherwise identical building just meeting the minimum criteria set

forth in the applicable baseline ASHRAE or IECC standard. The agencies

must try to find a design that reduces energy consumption by a total of

30 percent or more without increasing the planned building's expected

life-cycle cost. DOE intends to provide additional guidance and tools

to assist Federal agencies in meeting these new building design

requirements.

Today's rule does not take a prescriptive approach as to how the 30

percent reduction is to be obtained. The baseline standards contain a

limited set of mandatory requirements, such as sealing leaks in the

building envelope and air duct systems. Beyond this, there are no

restrictions on how the Federal agency achieves cost-effective energy

savings. DOE believes that Federal agencies should be given the

flexibility necessary to determine the most effective ways to achieve

energy savings above that of the incorporated standards, rather than

relying on prescriptive requirements that may not be appropriate in all

cases.

Today's interim final rule is effective beginning 30 days following

Federal Register publication. All new Federal buildings for which

design for construction begins on or after that date must comply with

the requirements established in this rule. All new Federal buildings

for which design for construction has begun prior to that date must

comply with the requirements in 10 CFR part 434 or subpart C of part

435, as applicable.

DOE is accepting comments on this interim final rule. The interim

final rule will take effect on the date listed above in the DATES

heading, and will become part of the CFR. Following close of the

comment period, DOE will issue a notice of final rulemaking. If no

comments are received, the notice of final rulemaking will adopt as

final the interim final rule without change. If comments are received,

DOE will respond to issues raised by the comments in the notice of

final rulemaking, and either adopt as final the interim final rule

without change, or adopt the final rule with change in response to

comments.

III. Section 109 of the Energy Policy Act of 2005 Requirements Not

Addressed in Today's Rule

Today's rule does not address the requirement that, if life-cycle

cost-effective for new Federal buildings, agencies must apply

sustainable design principles to the siting, design, and construction

of all new and replacement buildings. Today's rule also does not

address the requirement that ``if water is used to achieve energy

efficiency, the revised standards also must require water conservation

technologies to be applied to the extent that such technologies are

life-cycle cost-effective.'' Finally, today's rule does not consider

measures with regard to radon and other indoor air pollutants. (42

U.S.C. 6834 (a)(3)(A)(ii)) The developmental process for addressing

these complicated issues will take more time and DOE will issue a

rulemaking notice containing provisions on these subjects at a later

date. DOE is proceeding with the implementation of only the energy

efficiency element from the directives of section 305(a) of the Energy

Policy Act of 2005 in this interim final rule so that energy efficiency

in Federal buildings can be improved as soon as possible.

IV. Reference Resources

The Department has prepared a list of resources to help Federal

agencies achieve building energy efficiency levels of at least 30

percent below that of ASHRAE Standard 90.1-2004 or the 2004 IECC. These

resources come in many forms--design guidance, case studies and in a

variety of media--in printed document or on Web site. Resources are

provided in three categories--for all buildings, specifically for

commercial and high-rise multi-family 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/[fxsp0]femp/procurement/ and http://www

.energystar.gov/products

Federal agencies are required by the Energy Policy Act of 2005 to

specify 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 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 the Web site is

listed for the convenience of the agencies and to point out that this

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/[fxsp0]nara/cfr/waisidx--[fxsp0]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, 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 published in the Annual

Supplement to The National Institute of Science and Technology Handbook

135: ``Energy Price Indices and Discount Factors for Life-Cycle Cost

Analysis.''

http://www.eere.energy.gov/[fxsp0]femp/pdfs/ashb06.pdf. FEMP also

provides guidance on the LCC requirements of Executive Order 13123 at

http://www1.eere.energy.gov/[fxsp0]femp/program/lifecycle.html and

http://www1.eere.energy.gov/femp/[fxsp0]information/download--

blcc.html.

ENERGY STAR Buildings--The U.S. Environmental Protection Agency and

U.S. Department of Energy

https://www.energystar.gov/[fxsp0]index.cfm?c=bldrs--lenders--

[fxsp0]raters.homes--guidelns09 (homes) and https://www.energystar.gov/[fxsp0

]index.cfm?c=new--bldg[fxsp0]--design.bus--[fxsp0]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. The benchmarking tool and other information at the ENERGY

STAR TargetFinder Web site can be useful in determining an annual

energy target for the building design and computer simulations,

evaluating cost-effectiveness of efficiency measures, and tracking the

building's actual energy performance after construction.

[[Page 70279]]

High Performance Buildings--U.S. DOE Building Technologies Program

http://www.eere.energy.gov/[fxsp0]buildings/highperformance/

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/[fxsp0]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 High-Rise Multi-Family Residential

Buildings

ASHRAE Standard 90.1-2004--ASHRAE

http://www.ashrae.org (search for Standard 90.1-2004) or

http://resourcecenter.ashrae.org/[fxsp0]store/ashrae/

newstore.cgi?itemid=27679[fxsp0]&view=item&page=1[fxsp0]&loginid=6683225

[fxsp0]&words=Standard%2090.1-[fxsp0]2004&method=and&

The Minimum Energy Performance Standard for commercial and high-

rise multi-family buildings is ANSI/ASHRAE/[fxsp0]IESNA Standard 90.1-

2004. This link also contains a link to a read-only version of Standard

90.1-2004.

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 Guide--ASHRAE

http://www.ashrae.org (search for Advanced Energy Design Guide) or

http://resourcecenter.[fxsp0]ashrae.org/[fxsp0]store/ashrae/

[fxsp0]newstore.[fxsp0]cgi?itemid=23307[fxsp0]&[fxsp0]view=item&[fxsp0]p

age=1[fxsp0]&loginid=6683251[fxsp0]&words=[fxsp0]Advanced%20Energy[fxsp0

]%20Design%20[fxsp0]Guide[fxsp0]&method=and&

A set of design guides for users who wish to go beyond Standard

90.1, targeted at 30 percent better than ASHRAE Standard 90.1-1999

(which translates to about 25 percent better than ASHRAE standard 90.1-

2004).

Advanced Buildings^TM E-Benchmark^TM--New Buildings

Institute

http://www.poweryourdesign.com

A set of guidelines for the design, construction, and operation of

new and renovated nonresidential buildings targeted at 30 percent

better than ASHRAE Standard 90.1-1999 (which translates to about 25

percent better than ASHRAE Standard 90.1-2004).

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.

Leadership in Energy and Environmental Design (LEED)--U.S. Green

Building Council (USGBC)

http://www.usgbc.org/[fxsp0]DisplayPage.aspx?CategoryID=19

The LEED Green Building Rating System[supreg] is a voluntary,

consensus-based national standard for developing high-performance,

sustainable buildings. USGBC members, representing every sector of the

building industry, developed and continue to refine LEED.

Resources for Low-Rise Residential Buildings

2004 Supplement to the 2003 IECC--ICC

http://www.iccsafe.org (search for 2004 IECC) or http://www

.iccsafe.org/[fxsp0]dyn/prod/7801S04.html

The Minimum Energy Performance Standard for low-rise residential

buildings is the International Code Council (ICC) 2004 IECC Supplement.

Residential Energy Services Network (RESNET)

http://www.natresnet.org/[fxsp0]programs/software/directory.htm

RESNET is responsible for home energy rating systems used for

energy efficient mortgages. RESNET activities include adopting

standards that set the national procedures for home energy ratings and

procedures for certifying raters. Since the home energy ratings utilize

the 2004 IECC as the baseline, RESNET accredited software programs may

be appropriate for calculating energy consumption to determine

compliance with this rule.

Building America--U.S. Department of Energy

http://www.eere.energy.gov/[fxsp0]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/sp.asp?mc=about_path

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.

V. Procedural Requirements

A. Review under Executive Order 12866, ``Regulatory Planning and

Review''

Today's interim final rule is a ``significant regulatory action''

under section 3(f)(1) of Executive Order 12866, ``Regulatory Planning

and Review.'' 58 FR 51735 (October 4, 1993). Accordingly, today's

action was subject to review by the Office of Information and

Regulatory Affairs in the Office of Management and Budget (OMB). OMB

has completed its review.

B. Review under the Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the

preparation of an initial regulatory flexibility analysis for any rule

that by law must be proposed for public comment, unless the agency

certifies that the rule, if promulgated, will not have a significant

economic impact on a substantial number of small entities. As required

by Executive Order 13272, Proper Consideration of Small Entities in

Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published

procedures and policies on February 19,

[[Page 70280]]

2003, to ensure that the potential impacts of its rules on small

entities are properly considered during the rulemaking process. 68 FR

7990. The Department has made its procedures and policies available on

the Office of General Counsel's Web site: http://www.gc.doe.gov.

Today's rule on energy efficiency performance standards for the

design and construction of new Federal buildings is not subject to any

legal requirement to publish a general notice of proposed rulemaking.

Therefore, the Regulatory Flexibility Act does not apply.

C. Review Under the Paperwork Reduction Act of 1995

This rulemaking will impose no new information or record keeping

requirements. Accordingly, Office of Management and Budget (OMB)

clearance is not required under the Paperwork Reduction Act. (44 U.S.C.

3501 et seq.)

D. Review Under the National Environmental Policy Act of 1969

The Department prepared an Environmental Assessment (EA) (DOE/EA-

1463) entitled, Draft Environmental Assessment for Interim Final Rule,

10 CFR Part 433, ``Energy Efficiency Standards for New Federal

Commercial and Multi-Family High-Rise Residential Buildings,'' and 10

CFR Part 435, ``Energy Efficiency Standards for New Federal Low-Rise

Residential Buildings,'' pursuant to the Council on Environmental

Quality's (CEQ) Regulations for Implementing the Procedural Provisions

of the National Environmental Policy Act (40 CFR Parts 1500-1508), the

National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C.

4321 et seq.), and DOE's NEPA Implementing Procedures (10 CFR Part

1021).

The EA addresses the possible environmental effects attributable to

the implementation of the interim final rule. The only impact would be

a decrease in outdoor air pollutants resulting from decreased fossil

fuel burning for energy use in Federal buildings.

To identify the potential environmental impacts that may result

from implementing the interim final rule on new Federal commercial

buildings, DOE compared the interim final rule with a ``no-action

alternative'' of using the current Federal standards--10 CFR Part 434

and 10 CFR Part 435. DOE also compared the interim final rule to the

prevailing national voluntary building energy codes, which also are the

minimum requirements for the interim final rule. For commercial and

high-rise multi-family residential buildings, the American National

Standards Institute (ANSI)/American Society of Heating, Refrigerating

and Air-Conditioning Engineers, Inc. (ASHRAE)/Illuminating Engineering

Society of North America (IESNA) ASHRAE/IESNA Standard 90.1-2004

(ASHRAE 2004) is the minimum requirement for the DOE preferred

alternative. For low-rise residential buildings, the International Code

Council (ICC) International Energy Conservation Code (IECC) 2004

Supplement Edition (ICC 2004) is the minimum requirement for the DOE

preferred alternative. For the purpose of this environmental

assessment, DOE also investigated the impact of buildings achieving

energy consumption below Standard 90.1-2004 or the 2004 IECC in

increments of 10 percent, up to 50 percent.

For low-rise residential buildings, the Federal government is

estimated to construct about 2000 housing units annually that would be

subject to this rule. Avoided carbon dioxide emissions are estimated at

763 metric tons of carbon in the first year the interim final rule is

in effect, if 30 percent savings in energy consumption over the 2004

IECC are achieved. Avoided nitrogen oxide and sulfur dioxide emissions

are estimated to be each 4 tons in the first year the rule is in

effect.

For commercial and high-rise multi-family residential buildings,

the Federal government is estimated to construct 28 million square feet

of Federal commercial buildings annually. Federal high-rise residential

buildings are rare. Assuming a 30 percent savings in energy consumption

over 90.1-2004, avoided carbon dioxide emissions (relative to the

existing 10 CFR Part 434) are estimated at 35,800 metric tons of carbon

in the first year the interim final rule is in effect, with the savings

compounding in future years as more and more Federal construction

occurs. Avoided nitrogen oxide emissions are estimated to be 317 tons

in the first year the rule is in effect, while the avoided sulfur

dioxide emissions are estimated at 625 tons.

Copies of the EA are available for review at http://www.eere.energy.gov/

[fxsp0]femp/about/legislation.html, or by

contacting Cyrus Nasseri, Office of Federal Energy Management, Mail

Station, EE-2L, 1000 Independence Avenue, 20585-0121, (202) 586-9138.

Comments on the EA may be submitted to DOE at this address by the

comment date noted above under the DATES heading. DOE will consider all

comments received before approving or modifying the EA, as appropriate.

E. Review Under Executive Order 13132, ``Federalism''

Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4,

1999), imposes certain requirements on agencies formulating and

implementing policies or regulations that preempt State law or that

have federalism implications. The Executive Order requires agencies to

examine the constitutional and statutory authority supporting any

action that would limit the policymaking discretion of the States and

to carefully assess the necessity for such actions. The Executive Order

also requires agencies to have an accountable process to ensure

meaningful and timely input by State and local officials in the

development of regulatory policies that have federalism implications.

On March 14, 2000, DOE published a statement of policy describing the

intergovernmental consultation process it will follow in the

development of such regulations. (65 FR 13735). DOE examined this rule

and determined that it does not preempt State law and does not have a

substantial direct effect on the States, on the relationship between

the national government and the States, or on the distribution of power

and responsibilities among the various levels of Government. No further

action is required by Executive Order 13132.

F. Review Under Executive Order 12988, ``Civil Justice Reform''

With respect to the review of existing regulations and the

promulgation of new regulations, section 3(a) of Executive Order 12988,

``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on

Federal agencies the general duty to adhere to the following

requirements: (1) Eliminate drafting errors and ambiguity; (2) write

regulations to minimize litigation; and (3) provide a clear legal

standard for affected conduct, rather than a general standard and

promote simplification and burden reduction. Section 3(b) of Executive

Order 12988 specifically requires that Executive agencies make every

reasonable effort to ensure that the regulation: (1) Clearly specifies

the preemptive effect, if any; (2) clearly specifies any effect on

existing Federal law or regulation; (3) provides a clear legal standard

for affected conduct, while promoting simplification and burden

reduction; (4) specifies the retroactive effect, if any; (5) adequately

defines key terms; and (6) addresses other important issues affecting

clarity and general draftsmanship under any guidelines issued by the

Attorney General. Section 3(c) of Executive Order 12988 requires

Executive agencies to

[[Page 70281]]

review regulations in light of applicable standards in section 3(a) and

section 3(b) to determine whether they are met or it is unreasonable to

meet one or more of them. DOE has completed the required review and

determined that, to the extent permitted by law; this rule meets the

relevant standards of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.

L. 104-4) requires each Federal agency to assess the effects of Federal

regulatory actions on State, local, and tribal governments and the

private sector. For a proposed regulatory action likely to result in a

rule that may cause the expenditure by State, local, and tribal

governments, in the aggregate, or by the private sector of $100 million

or more in any one year (adjusted annually for inflation), section 202

of UMRA requires a Federal agency to publish a written statement that

estimates the resulting costs, benefits, and other effects on the

national economy. (2 U.S.C. 1532(a) and (b)) The UMRA also requires a

Federal agency to develop an effective process to permit timely input

by elected officers of State, local, and tribal 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 interim final rule

contains neither an intergovernmental mandate nor a mandate that may

result in the expenditure of $100 million or more in any year, so these

requirements under the Unfunded Mandates Reform Act do not apply.

H. Review Under the Treasury and General Government Appropriations Act

of 1999

Section 654 of the Treasury and General Government Appropriations

Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a

Family Policymaking Assessment for any rule that may affect family

well-being. This interim final rule would not have any impact on the

autonomy or integrity of the family as an institution. Accordingly, DOE

has concluded that it is not necessary to prepare a Family Policymaking

Assessment.

I. Review Under Executive Order 12630, ``Governmental Actions and

Interference With Constitutionally Protected Property Rights''

The Department has determined, under Executive Order 12630,

``Governmental Actions and Interference with Constitutionally Protected

Property Rights,'' 53 FR 8859 (March 18, 1988), that this rule would

not result in any takings which might require compensation under the

Fifth Amendment to the United States Constitution.

J. Review Under the Treasury and General Government Appropriations Act,

2001

Section 515 of the Treasury and General Government Appropriations

Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most

disseminations of information to the public under guidelines

established by each agency pursuant to general guidelines issued by

OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002),

and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).

DOE has reviewed today's interim final rule under the OMB and DOE

guidelines and has concluded that it is consistent with applicable

policies in those guidelines.

K. Review Under Executive Order 13211, ``Actions Concerning Regulations

That Significantly Affect Energy Supply, Distribution, or Use''

Executive Order 13211, ``Actions Concerning Regulations That

Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355

(May 22, 2001), requires Federal agencies to prepare and submit to the

Office of Information and Regulatory Affairs (OIRA), Office of

Management and Budget, a Statement of Energy Effects for any proposed

significant energy action. A ``significant energy action'' is defined

as any action by an agency that promulgated or is expected to lead to

promulgation of a final rule, and that: (1) Is a significant regulatory

action under Executive Order 12866, or any successor order; and (2) is

likely to have a significant adverse effect on the supply,

distribution, or use of energy, or (3) is designated by the

Administrator of OIRA as a significant energy action. For any proposed

significant energy action, the agency must give a detailed statement of

any adverse effects on energy supply, distribution, or use should the

proposal be implemented, and of reasonable alternatives to the action

and their expected benefits on energy supply, distribution, and use.

This interim 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).

VII. Approval of the Office of the Secretary

The Secretary of Energy has approved publication of today's interim

final rule.

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

Buildings, Energy conservation, Engineers, Federal buildings and

facilities, Housing, Incorporation by reference.

Issued in Washington, DC, on November 22, 2006.

Alexander A. Karsner,

Assistant Secretary, Energy Efficiency and Renewable Energy.

For the reasons set forth in the preamble, DOE amends chapter II of

title 10 of the Code of Federal Regulations as set forth below:

1. Part 433 is added to read as follows:

PART 433--ENERGY EFFICIENCY STANDARDS FOR THE DESIGN AND

CONSTRUCTION OF NEW FEDERAL COMMERCIAL AND MULTI-FAMILY HIGH-RISE

RESIDENTIAL BUILDINGS

Sec.

433.1 Purpose and scope.

433.2 Definitions.

433.3 Materials incorporated by reference.

433.4 Energy efficiency performance standard.

433.5 Performance level determination.

433.6 Sustainable principles for siting, design and construction.

[Reserved]

433.7 Water used to achieve energy efficiency. [Reserved]

433.8 Life-cycle costing.

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

seq.

Sec. 433.1 Purpose and scope.

This part establishes an energy efficiency performance standard for

the new Federal commercial and multi-family high-rise buildings, for

which design for construction began on or after January 3, 2007, as

required by section 305(a) of the Energy Conservation and Production

Act, as amended (42 U.S.C. 6834(a)).

[[Page 70282]]

Sec. 433.2 Definitions.

For purposes of this part, the following terms, phrases and words

are defined as follows:

ANSI means the American National Standards Institute.

ASHRAE means the American Society of Heating, Refrigerating and

Air-Conditioning Engineers.

Baseline building means a building that is otherwise identical to

the proposed building but is designed to meet but not exceed the energy

efficiency specifications of 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).

Commercial and multi-family high-rise residential building means

all buildings other than low-rise residential buildings.

DOE means the U.S. Department of Energy.

Federal agency means any department, agency, corporation, or other

entity or instrumentality of the executive branch of the Federal

Government, including the United States Postal Service, the Federal

National Mortgage Association, and the Federal Home Loan Mortgage

Corporation.

IESNA means Illuminating Engineering Society of North America.

Life-cycle cost means the total cost related to energy conservation

measures of owning, operating and maintaining a building over its

useful life as determined in accordance with 10 CFR part 436.

Life-cycle cost-effective means that the proposed building has a

lower life-cycle cost than the life-cycle costs of 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 discount rate

as listed in OMB Circular Number A-94 (Guidelines and Discount Rates

for Benefit-Cost Analysis of Federal Programs.''

Low-rise residential building means any building three stories or

less in height above grade that includes sleeping accommodations where

the occupants are primarily permanent in nature (30 days or more).

New Federal building means 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.

Proposed building means the building design of a new Federal

commercial and multi-family high-rise building proposed for

construction.

Sec. 433.3 Materials incorporated by reference.

(a) General. DOE incorporates by reference the energy performance

standard 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 this material by the standard-setting organization will

not affect the DOE building energy performance standard unless and

until DOE amends its building energy performance standards. DOE

incorporates the material as it exists on the date specified in the

approval and a notice of any change in the material will be published

in the Federal Register.

(b) List of standards incorporated by reference. ANSI/ASHRAE/IESNA

Standard 90.1-2004, Energy Standard for Buildings Except Low-Rise

Residential Buildings, January 2004, American Society of Heating

Refrigerating and Air-Conditioning Engineers, Inc., ISSN 1041-2336.

standard incorporated by reference is available for inspection at:

(1) 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

(2) U.S. Department of Energy, Forrestal Building, Room 1M-048

(Resource Room of the Federal Energy Management Program), 1000

Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-9138,

between 9 a.m. and 4 p.m., Monday through Friday, except Federal

holidays.

(d) Obtaining copies of standards. The building energy performance

standard incorporated by reference may be obtained from the American

Society of Heating Refrigerating and Air-Conditioning Engineers, 1791

Tullie Circle, NE., Atlanta, GA, 30329, http://resourcecenter.ashrae.org/store/ashrae/

Sec. 433.4 Energy efficiency performance standard.

(a) All Federal agencies shall design new Federal commercial and

multi-family high-rise residential buildings, for which design for

construction began on or after January 3, 2007, to:

(1) Meet ANSI/ASHRAE/IESNA Standard 90.1-2004, Energy Standard for

Buildings Except Low-Rise Residential Buildings, January 2004

(incorporated by reference, see 433.3); and

(2) 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 baseline building.

(b) Energy consumption for the purposes of calculating the 30

percent savings shall include space heating, space cooling,

ventilation, service water heating, lighting and all other energy

consuming systems normally specified as part of the building design

except for receptacle and process loads.

design of the proposed building shall be modified so as to achieve an

energy consumption level at the maximum level of energy efficiency that

is life-cycle cost-effective, but at a minimum complies with paragraph

(a) of this section.

Sec. 433.5 Performance level determination.

(a) Each Federal agency shall determine energy consumption levels

for both the baseline building and proposed building by using the

Performance Rating Method found in Appendix G of ANSI/ASHRAE/IESNA

Standard 90.1-2004, Energy Standard for Buildings Except Low-Rise

Residential Buildings, January 2004 (incorporated by reference, see (

433.3), except the formula for calculating the Performance Rating in

paragraph G1.2 shall read as follows:

Percentage improvement = 100 x (Baseline building consumption--

Proposed building consumption)/ (Baseline building consumption--

Receptacle and process loads).

(b) Each Federal agency shall consider laboratory fume hoods and

kitchen ventilation systems as part of the ASHRAE-covered HVAC loads

subject to the 30 percent savings requirements, rather than as process

loads.

[[Page 70283]]

Sec. 433.6 Sustainable principles for siting, design and

construction. [Reserved]

Sec. 433.7 Water used to achieve energy efficiency. [Reserved]

Sec. 433.8 Life-cycle costing.

Each Federal agency shall determine life-cycle cost-effectiveness

by using the procedures set out in subpart A of part 436. A Federal

agency may choose to use any of four methods, including 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 discount rate as listed

in OMB Circular Number A-94 ``Guidelines and Discount Rates for

Benefit-Cost Analysis of Federal Programs.''

PART 434--ENERGY CODE FOR NEW FEDERAL COMMERCIAL AND MULTI-FAMILY

HIGH RISE RESIDENTIAL BUILDINGS

2. Amend part 434 by revising the part heading to read as set forth

above.

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

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

U.S.C. 7101, et seq.

4. Section 434.100 is revised to read as follows:

Sec. 434.100 Purpose.

The provisions of this part provide minimum standards for energy

efficiency for the design of new Federal commercial and multi-family

high rise residential buildings, for which design for construction

began before January 3, 2007. The performance standards are designed to

achieve the maximum practicable improvements in energy efficiency and

increases in the use of non-depletable sources of energy. This rule is

based upon the ASHRAE/IESNA Standard 90.1-1989 and addenda b, c, d, e,

f, g, and i. (This document is available from the American Society of

Heating, Refrigerating and Air-Conditioning Engineers, Inc., 1791

Tullie Circle NE, Atlanta, GA.) It is not incorporated by reference in

this document, but is mentioned for informational purposes only.

5. In Sec. 434.101, revise paragraph 101.1 to read as follows:

Sec. 434.100 Scope.

101.1 This part provides design requirements for the building

envelope, electrical distribution systems and equipment for electric

power, lighting, heating, ventilating, air conditioning, service water

heating and energy management. It applies to new Federal multi-family

high rise residential buildings and new Federal commercial buildings,

for which design for construction began before January 3, 2007.

* * * * *

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

RESIDENTIAL BUILDINGS

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

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

U.S.C. 7101 et seq.

7. Amend part 435 to add Subpart A to read as follows:

Subpart A--Mandatory Energy Efficiency Standards for Federal Low-

Rise Residential Buildings.

Sec.

435.1 Purpose and scope.

435.2 Definitions.

435.3 Material incorporated by reference.

435.4 Energy efficiency performance standard.

435.5 Performance level determination.

435.6 Sustainable principles for siting, design and construction.

[Reserved]

435.7 Water used to achieve energy efficiency. [Reserved]

435.8 Life-cycle costing.

Sec. 435.1 Purpose and scope.

This part establishes energy efficiency performance standard for

the construction of new Federal low-rise residential buildings as

required by section 305(a) of the Energy Conservation and Production

Act, as amended (42 U.S.C. 6834(a)).

Sec. 435.2 Definitions.

For purposes of this part, the following terms, phrases and words

shall be defined as follows:

Baseline building means a new Federal low-rise residential 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).

DOE means U.S. Department of Energy.

Federal agency means any department, agency, corporation, or other

entity or instrumentality of the executive branch of the Federal

Government, including the United States Postal Service, the Federal

National Mortgage Association, and the Federal Home Loan Mortgage

Corporation.

ICC means International Code Council.

IECC means International Energy Conservation Code.

Life-cycle cost means the total cost related to energy conservation

measures of owning, operating and maintaining a building over its

useful life as determined in accordance with 10 CFR part 436.

Life-cycle cost-effective means that the proposed building has a

lower life-cycle cost than the life-cycle costs of 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 discount rate

as listed in OMB Circular Number A-94 ``Guidelines and Discount Rates

for Benefit-Cost Analysis of Federal Programs.''

Low-rise residential building means any building three stories or

less in height above grade that includes sleeping accommodations where

the occupants are primarily permanent in nature (30 days or more).

New Federal building means 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.

Proposed building means the building design of a new Federal low-

rise residential building proposed for construction.

Sec. 435.3 Material incorporated by reference.

(a) General. DOE incorporates by reference the energy performance

standard listed in paragraph (b) of this section into 10 CFR Part 435

subpart A. 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 this material by the standard-setting

organization will not affect the DOE building energy performance

standard unless and until DOE amends its building energy performance

standards. DOE incorporates the material as it exists on the date

specified in the approval and a notice of any change in the material

will be published in the Federal Register.

(b) List of standards incorporated by reference. ICC International

Energy Conservation Code (IECC), 2004 Supplement Edition, January 2005,

[[Page 70284]]

International Code Council, ISBN 7801S04.