Energy Conservation Standards for New Federal Commercial and Multi-Family High-Rise Residential Buildings and New Federal Low-Rise Residential Buildings, 72565-72571 [E7-24615]

Agencies

• DEPARTMENT OF ENERGY
• Office of Energy Efficiency and Renewable Energy
• Energy Efficiency and Renewable Energy Office

[Federal Register Volume 72, Number 245 (Friday, December 21, 2007)]
[Rules and Regulations]
[Pages 72565-72571]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24615]



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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Parts 433, 434, and 435

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


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

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

ACTION: Final rule.

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

DATES: This rule is effective January 22, 2008.

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

SUPPLEMENTARY INFORMATION:

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

I. Introduction

A. Background

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

B. Interim Final Rule

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

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

C. Summary of the Final Rule

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

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

    DOE received a variety of comments from twenty different parties in 
response to the interim final rule. The comments covered a variety of 
topics. There were comments and questions on scope and timing of new 
Federal standards, such as what energy end-uses the rules cover, and 
whether they should apply to major retrofits and leased buildings. Some 
comments suggested changes or alternatives to the baseline minimum 
standards. In particular, several commenters requested an update to the 
2006 IECC in place of 2004 IECC for low-rise residential buildings. A 
number of comments suggested that the rules require more than 30 
percent energy savings if cost effective. Some commenters wanted DOE to 
actively enforce that Federal agencies comply with the standards and/or 
provide support and guidance for implementing the standards. DOE 
received two comments (United States Postal Service, No. 15; Edison 
Electric Institute No. 18 \1\) that simply expressed support for the 
content of the new Federal standards. Comments are discussed and 
addressed in greater detail below.
Questions on Scope and Timing of New Federal Standards
    As stated above, the interim final rule applies to Federal 
buildings for which design for construction began on or after January 
3, 2007. Los Alamos National Laboratory (Comment No. 6) and the 
Department of Veterans Affairs (Comment No. 20) requested clarification 
of when ``design for construction'' begins as this establishes the 
applicable stage when the new rule applies. The rule becomes effective 
at the design stage when the impact of the rule needs to be accounted 
for in the procurement process. Specifically, this is the stage when 
the energy efficiency and sustainability details (such as insulation 
levels, HVAC systems, water-using systems, etc.) are either explicitly 
determined or implicitly included in a project cost specification. If 
prior to January 3, 2007, energy efficiency and sustainability details 
were incorporated into a building design, and thus a costly redesign 
would be required to meet this rule, the new rule is not applicable. 
Today's final rule clarifies the applicability of the new Federal 
building standards.
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    \1\ The number accompanying an identified commenter indicates 
the location of the comment with in the docket for this rulemaking. 
There were 20 comments received in total. All comments can be 
reviewed at https://www2.eere.energy.gov/femp/pdfs/ee_rm_std_02_
112.pdf.
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    Four comments questioned if the standards apply to leased buildings 
(Naval Facilities Engineering Command, No. 3; The Alliance to Save 
Energy, No. 9; The American Institute of Architects; No. 10 and No. 
14). The last three comments recommended that the scope of the interim 
rule be expanded to apply to leased buildings.
    ECPA specifically defines ``Federal building'' to mean any building 
to be ``constructed by, or for the use of, any Federal agency which is 
not legally subject to State or local building codes or similar 
requirements.'' (42 U.S.C. 6832(6)) DOE applied the statutory 
definition to define ``new Federal buildings'' for the purpose of 10 
CFR 433.2 and 435.2. A building being constructed for lease by a 
Federal agency would be for the use of the Federal agency and therefore 
would be a ``new Federal building'' subject to the requirements 
established in the interim final rule if it is not legally subject to 
State or local building codes.
    Four comments suggested the rule should apply to additions and/or 
major renovations. (Comments No. 6; No. 9; No. 10; No. 14). Commenters 
noted that the previous building standards applied to major 
renovations.
    Section 305 of ECPA specifies that the rule shall apply to only new 
buildings. Today's final rule provides additional clarity on the 
distinction between a ``new'' building and a major renovation. Under 
today's final rule the definition of ``new Federal building'' specifies 
that a building is a new building if it is completely replaced from the 
foundation up. DOE notes that the recent Executive Order 13423, 
Strengthening Federal Environmental, Energy, and Transportation 
Management, includes mandatory energy efficiency requirements for major 
renovations to Federal buildings. 72 FR 3919 (January 24, 2007).
Request for Use of the 2006 IECC Instead of the 2004 IECC for Low-Rise 
Residential Buildings
    Five commenters (Birch Point Consulting, No. 1; American 
Architectural Manufacturers Association, No. 4; Pilkington North 
America No. 5; APA-The Engineered Wood Association No. 12; and a 
combined comment from Icynene, Nu-Wool Co., Inc., and Building Quality, 
No. 13) requested that the residential standards be updated from the 
2004 IECC Edition to the 2006 IECC. These commenters stated that the 
2004 IECC is what is referred to as a ``supplement edition'' that is 
published at the midpoint between the three year cycles when stand-
alone editions of the IECC are published. Some of the commenters 
further stated that the 2004 IECC is ``not a code.'' Comments stated 
that the 2006 IECC is the most current version of the IECC and the 2004 
Supplement is now an older version. Additionally, several commenters 
objected to requirements in the 2004 IECC and stated a preference for 
the alterations to these requirements

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in the 2006 IECC. Conversely, one commenter believes the Department was 
correct to use the 2004 IECC (Responsible Energy Codes Alliance, No. 
11)
    Several commenters observed that ECPA requires that the Department 
determine whether the Federal standards should be updated within one 
year after approval of revisions to the IECC (or ASHRAE Standard 90.1). 
These commenters requested that consistent with this provision of EPCA 
DOE incorporate the 2006 version of the IECC.
    The interim final rule reflected Congress's specific instruction as 
to which voluntary consensus standard DOE is to incorporate into the 
requirements as the baseline for Federal residential buildings, 2004 
IECC. Further, the 2004 IECC is code language that is fully sanctioned 
by the International Code Council. As directed by ECPA, DOE will 
consider updating to the 2006 IECC based on the cost effectiveness of 
the revisions contained in the 2006 IECC. However, at this time DOE has 
not completed the analysis necessary to determine if the standard 
should be updated to cite the 2006 IECC.
Suggestions for Use of Alternative Baseline Standards
    DOE received a number of comments suggesting the use of alternative 
baseline standards to the 2004 IECC (for low-rise residential 
buildings) and ASHRAE Standard 90.1-2004 (for commercial and high-rise 
residential buildings). Suggestions included the use of the IECC for 
commercial and high-rise residential buildings (Comment No. 1; 
Responsible Energy Codes Alliance, No. 11) and use of the IRC (Comment 
No. 1) or ASHRAE Standard 90.2-2004 (Comment No. 14; No. 18) for low-
rise residential buildings.
    Today's final rule does not amend the use of ASHRAE Standard 90.1-
2004 and the 2004 IECC as the baselines for the requirement. As stated 
above, section 109 of EPAct 2005 is explicit in the voluntary standards 
that are to be incorporated as the baseline.
Comments Requesting Clarification of Requirements
    Under the requirements established in the interim final rule, 
Federal buildings must exceed the energy efficiency level of the 
appropriate consensus standard by 30 percent if life-cycle cost 
effective. 10 CFR 433.4(a)(2) and 435.4(a)(2). DOE received several 
comments on the 30 percent level specified in the standards and the 
reliance on ``life-cycle cost effective.''
    Regarding the energy savings target, four commenters suggested that 
DOE require the maximum cost-effective energy efficiency, even if it is 
beyond 30% (Comments No. 9; No. 10; No. 14; and Natural Resources 
Defense Council, No. 17). These commenters interpreted the direction in 
EPAct 2005 to be to achieve the maximum level of energy efficiency that 
is cost-effective relative to the baseline standards, not just to 
achieve at least 30 percent savings.
    As stated in the preamble to the interim final rule, Congress 
expressly specified a minimum performance requirement of a 30 percent 
improvement, if life-cycle cost effective. 71 FR 70277. Although the 
statute requires DOE to establish performance standards that are ``at 
least'' 30 percent below the levels in the incorporated ASHRAE and IECC 
standards, the standards that DOE established in the interim final rule 
do not require Federal agencies to consider the life-cycle cost 
effectiveness of improvements beyond the 30 percent level.
    It is DOE's view that had Congress sought to require improvements 
at a maximum energy savings with the condition that it has an equal or 
lower life-cycle cost relative to the baseline standard, it would have 
mandated designs to achieve that level and would not have specified the 
30 percent minimum. The rule uses the same language in EPAct--that at 
least 30 percent savings be achieved if cost-effective. Federal 
agencies are not precluded from designing buildings to achieve greater 
improvements, and DOE encourages agencies to design new Federal 
buildings to achieve lower energy consumption levels if life-cycle cost 
effective. Further, DOE has made a minor modification to Sections 
433.4(c) and 435.4(c) of the final rule to permit energy efficient 
better than the maximum level that is cost effective. This allows 
Federal agencies the flexibility to pursue additional energy efficiency 
for demonstration projects, such as zero energy buildings.
    One commenter objected to the performance based nature of the 30 
percent requirements. The commenter stated that DOE should establish 
more prescriptive standards (Comment No. 17). The standards established 
in the interim final rule allow Federal designers flexibility in 
choosing a compliant design and assign the responsibility of ensuring 
compliance to the Federal agencies. The commenter's statements suggest 
a preference for prescriptive standards to achieve the additional 30 
percent savings compared to the reference national standards, with 
explicit minimum requirements for individual building components (such 
as walls, windows, and floors) and systems (such as lighting and 
mechanical systems).
    Previous standards for Federal buildings were generally 
prescriptive in nature. However, given the complexity of developing a 
set of prescriptive requirements that meet both the energy efficiency 
and cost-effectiveness goals of section 109 of the EPAct 2005 for all 
Federal buildings of all types, DOE established a performance-based 
approach, utilizing the prescriptive requirements of the private sector 
standards as the absolute minimum if higher levels are not cost-
effective. This approach permits the applicable construction costs and 
fuel costs for any given project to be accounted for, allowing for most 
cost-effective solution, which may indeed result in a greater than 30 
percent savings over the minimum reference standards.
    One commenter (Comment No. 3) stated that ``life-cycle cost-
effectiveness'' had not been adequately defined. The definition in the 
interim final rule specifies that life cycle cost-effectiveness is 
determined in accordance with 10 CFR part 436. The definition of 
``life-cycle cost effective'' in 10 CFR part 436 provides agencies a 
choice of 4 methods of showing life cycle cost effectiveness, including 
lowest life cycle costs (10 CFR 436.19), positive net savings (10 CFR 
436.20), a saving-to-investment ratio greater than one (10 CFR 436.21), 
or an internal rate of return higher than the discount rate published 
by OMB (10 CFR 436.22). The methodologies specified in 10 CFR 436 have 
been widely established in Federal projects, with the National 
Institute of Standards and Technology (NIST) responsible for providing 
support for implementing 10 CFR 436 (https://www.bfrl.nist.gov/oae/
projects/04ps75.html).
Comments Related to the Handling of Receptacle and Process Loads
    DOE received five comments about addressing plug and process loads 
in Federal buildings. Two of the comments (Environmental Protection 
Agency, No. 7; Department of Interior, No. 19) objected to the fact 
that receptacle and process loads were exempted from calculation of the 
savings for the 30 percent requirement for commercial and high-rise 
residential buildings in the interim final rule. Laclede Gas (Comment 
No. 16) urged the Department to keep food service ventilation 
classified as process load. Conversely, the Department of Veterans 
Affairs (Comment No. 20) asked that medical equipment loads be exempt 
from the

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

[[Page 72569]]

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

III. Regulatory Analyses

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

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

B. Review Under the Regulatory Flexibility Act

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

C. Review Under the Paperwork Reduction Act of 1995

    This rulemaking will impose no new information or record keeping 
requirements. Accordingly, Office of Management and Budget (OMB) 
clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 
3501 et seq.)

D. Review Under the National Environmental Policy Act of 1969

    DOE prepared an Environmental Assessment (EA) (DOE/EA-1463) 
entitled, Draft Environmental Assessment for Interim Final Rule, 10 CFR 
Part 433, ``Energy Efficiency Standards for New Federal Commercial and 
Multi-Family High-Rise Residential Buildings,'' and 10 CFR Part 435, 
``Energy Efficiency Standards for New Federal Low-Rise Residential 
Buildings,'' pursuant to the Council on Environmental Quality's (CEQ) 
Regulations for Implementing the Procedural Provisions of the National 
Environmental Policy Act (40 CFR Parts 1500-1508), the National 
Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et 
seq.), and DOE's NEPA Implementing Procedures (10 CFR Part 1021).
    The EA addresses the possible environmental effects attributable to 
the implementation of the interim final rule. The only projected impact 
is a decrease in outdoor air pollutants resulting from decreased fossil 
fuel burning for energy use in Federal buildings. Today's minor changes 
to the interim final rule do not affect the findings of the EA or the 
discussion of those findings in the preamble to the interim final rule. 
71 FR 70280.

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

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. The Executive Order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive Order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications. 
On March 14, 2000, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in the 
development of such regulations. (65 FR 13735). DOE examined this rule 
and determined that it does not preempt State law and does not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of Government. No further 
action is required by Executive Order 13132.

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

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct, rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct, while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law: this rule meets the relevant standards of Executive 
Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and tribal governments and the 
private sector. For a proposed regulatory action likely to result in a 
rule that may cause the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more in any one year (adjusted annually for inflation), section 202 
of UMRA requires a Federal agency to publish a written statement that 
estimates the resulting costs, benefits, and other effects on the 
national economy. (2 U.S.C. 1532(a) and (b)). The UMRA also requires a 
Federal agency to develop an effective process to permit timely input 
by elected officers of State, local, and tribal

[[Page 72570]]

governments on a proposed ``significant intergovernmental mandate,'' 
and requires an agency plan for giving notice and opportunity for 
timely input to potentially affected small governments before 
establishing any requirements that might significantly or uniquely 
affect small governments. On March 18, 1997, DOE published a statement 
of policy on its process for intergovernmental consultation under UMRA 
(62 FR 12820) (also available at https://www.gc.doe.gov). This final 
rule contains neither an intergovernmental mandate nor a mandate that 
may result in the expenditure of $100 million or more in any year, so 
these requirements under the Unfunded Mandates Reform Act do not apply.

H. Review Under the Treasury and General Government Appropriations Act 
of 1999

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a 
Family Policymaking Assessment for any rule that may affect family 
well-being. This final rule would not have any impact on the autonomy 
or integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 12630, ``Governmental Actions and 
Interference With Constitutionally Protected Property Rights''

    The Department has determined, under Executive Order 12630, 
``Governmental Actions and Interference with Constitutionally Protected 
Property Rights,'' 53 FR 8859 (March 18, 1988), that this rule would 
not result in any takings which might require compensation under the 
Fifth Amendment to the United States Constitution.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), 
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). 
DOE has reviewed today's final rule under the OMB and DOE guidelines 
and has concluded that it is consistent with applicable policies in 
those guidelines.

K. Review Under Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use''

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgated or is expected to lead to 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; and (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
This final rule would not have a significant adverse effect on the 
supply, distribution, or use of energy and, therefore, is not a 
significant energy action. Accordingly, DOE has not prepared a 
Statement of Energy Effects.

IV . Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

V. Approval of the Office of the Secretary

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

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

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

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

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

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

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

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


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


Sec.  433.2  Definitions.

* * * * *
    Design for construction means the stage when the energy efficiency 
and sustainability details (such as insulation levels, HVAC systems, 
water-using systems, etc.) are either explicitly determined or 
implicitly included in a project cost specification.
* * * * *
    New Federal building means any building to be constructed on a site 
that previously did not have a building or a complete replacement of an 
existing building from the foundation up, by, or for the use of, any 
Federal agency which is not legally subject to State or local building 
codes or similar requirements.
* * * * *
    Process load means the load on a building resulting from energy 
consumed in support of a manufacturing, industrial, or commercial 
process. Process loads do not include energy consumed maintaining 
comfort and amenities for the occupants of the building (including 
space conditioning for human comfort).
    Receptacle load means the load on a building resulting from energy 
consumed by any equipment plugged into electrical outlets.
* * * * *
0
3. Revise paragraph (c) of Sec.  433.4 to read as follows:


Sec.  433.4  Energy efficiency performance standard.

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

[[Page 72571]]

complies with paragraph (a) of this section.

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

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

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

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


Sec.  434.101  Scope.

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

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

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

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


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


Sec.  435.2  Definitions.

* * * * *
    Design for construction means the stage when the energy efficiency 
and sustainability details (such as insulation levels, HVAC systems, 
water-using systems, etc.) are either explicitly determined or 
implicitly included in a project cost specification.
* * * * *
    New Federal building means any building to be constructed by, or 
for the use of, any Federal agency which is not legally subject to 
State or local building codes or similar requirements. A new building 
is a building constructed on a site that previously did not have a 
building or a complete replacement of an existing building from the 
foundation up.
* * * * *
0
8. Revise paragraph (c) of Sec.  435.4 to read as follows:


Sec.  435.4  Energy efficiency performance standard.

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

[FR Doc. E7-24615 Filed 12-20-07; 8:45 am]
BILLING CODE 6450-01-P