Energy Efficiency and Sustainable Design Standards for New Federal Buildings, 29933-29947 [2010-12677]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 75, Number 103 (Friday, May 28, 2010)]
[Proposed Rules]
[Pages 29933-29947]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-12677]



[[Page 29933]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

10 CFR Parts 433 and 435

[Docket No. EE-RM/STD-02-112]
RIN 1904-AC13


Energy Efficiency and Sustainable Design Standards for New 
Federal Buildings

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

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Energy (DOE) is publishing this notice 
of proposed rulemaking (NOPR) to implement provisions of the Energy 
Conservation and Production Act, as amended by the Energy Policy Act of 
2005 and the Energy Independence and Security Act of 2007, that require 
DOE to establish revised performance standards for the construction of 
new Federal buildings and major renovations of Federal buildings. This 
NOPR specifically addresses the use of sustainable design principles 
for siting, design, and construction, and the use of water conservation 
technologies to achieve energy efficiency. This proposed rulemaking 
also provides criteria for identifying a certification system and level 
for green buildings that encourages a comprehensive and 
environmentally-sound approach to certification of green buildings.

DATES: Public comments on this proposed rule will be accepted until 
July 27, 2010. The Department will hold a public meeting on Wednesday, 
July 28, 2010, from 9 a.m. to 4 p.m., in Washington, DC. DOE must 
receive requests to speak at the public meeting before 4 p.m., 
Wednesday, July 14, 2010. DOE must receive a signed original and an 
electronic copy of statements to be given at the public meeting before 
4 p.m., Wednesday, July 21, 2010.
    DOE will accept comments, data, and information regarding the NOPR 
before and after the public meeting, but no later than July 27, 2010.

ADDRESSES: The public meeting will be held at the U.S. Department of 
Energy, Forrestal Building, Room 8E-089. You may submit comments using 
any of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. E-mail: Cyrus.Nasseri@ee.doe.gov. Include EE-RM/STD-02-112 and/
or RIN 1904-AC13 in the subject line of the message.
    3. Postal Mail: Cyrus Nasseri, U.S. Department of Energy, Federal 
Energy Management Program, Mailstop EE-2L, Energy Efficiency and 
Sustainable Design Standards for New Federal Commercial and Multi-
Family High-Rise Residential Buildings and Energy Efficiency and 
Sustainable Design Standards for New Federal Low-Rise Residential 
Buildings, EE-RM/STD-02-112 and/or RIN 1904-AC13, 1000 Independence 
Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-9138. 
Please submit one signed paper original.
    4. Hand Delivery/Courier: Cyrus Nasseri, U.S. Department of Energy, 
Federal Energy Management Program, Room 5E-080, 1000 Independence 
Avenue, SW., Washington, DC 20585-0121.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Information Number (RIN) for this 
rulemaking.
    Docket: For access to the docket to read background documents or 
comments received by DOE, go to the U.S. Department of Energy, 
Forrestal Building, Room 5E-080 (Resource Room of the Federal Energy 
Management Program), 1000 Independence Avenue, SW., Washington, DC, 
(202) 586-9127, between 9 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays. Please call Cyrus Nasseri at the above 
telephone number for additional information regarding visiting the 
Resource Room.
    If you submit information that you believe to be exempt by law from 
public disclosure, you should submit one complete copy, as well as one 
copy from which the information claimed to be exempt by law from public 
disclosure has been deleted. DOE is responsible for the final 
determination with regard to disclosure or nondisclosure of the 
information and for treating it accordingly under the DOE Freedom of 
Information regulations at Title 10 of the Code of Federal Register (10 
CFR) 1004.11.

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

SUPPLEMENTARY INFORMATION: 

I. Introduction
II. Discussion of Today's Action
III. Reference Resources
IV. Regulatory Analysis
V. Approval of the Office of the Secretary

I. Introduction

    Section 305 of the Energy Conservation and Production Act (ECPA) 
established energy conservation requirements for Federal buildings. (42 
U.S.C. 6834) Section 109 of the Energy Policy Act of 2005 amended 
section 305 of ECPA by adding section 305(a)(3)(A), which requires DOE, 
through regulation, to update the energy efficiency requirements for 
new Federal buildings. (42 U.S.C. 6834(a)(3)(A)) DOE is also required 
to establish a requirement that, if life-cycle cost-effective, 
sustainable design principles must be applied to the siting, design, 
and construction of all new and replacement buildings. (42 U.S.C. 
6834(a)(3)(A)(i)(II)) Section 433 of the Energy Independence and 
Security Act of 2007 (EISA; Pub. L. 110-140) further amended section 
305 of ECPA to apply sustainable design principles to certain new 
Federal buildings and major renovations of Federal buildings without 
specifying consideration of life-cycle cost-effectiveness. (42 U.S.C. 
6834(a)(3)(D)(i)(III)) In addition, DOE is directed to establish 
regulations that require water conservation technologies and solar hot 
water heaters be applied to the extent life-cycle cost-effective. (42 
U.S.C. 6834 (a)(3)(A)(ii) and (a)(3)(D)(vii)) Today's proposed rule 
addresses sustainable design principles, water conservation 
technologies, and solar water heating. Additionally, as amended by 
EISA, ECPA directs DOE to identify a certification system and level for 
rating green buildings that DOE determines to be the most likely to 
encourage a comprehensive and environmentally sound approach to such 
certification and rating. (42 U.S.C. 6834(a)(3)(D)(i)(III)) Finally, 
section 433 of EISA revised the definition of ``Federal building'' 
applicable to the regulations for Federal buildings. (42 U.S.C. 
6832(6)) This definitional change is addressed in today's notice.
    DOE has already addressed energy efficiency in new Federal 
buildings in a final rule published on December 21, 2007 (72 FR 72565). 
Specifically, new Federal buildings must be designed to achieve energy 
consumption levels that are at least 30 percent below the updated 
minimum standards referenced in section 305(a)(2), if life-cycle cost-
effective. (42 U.S.C. 6834(a)(3)(A)(i)(I); see also 10 CFR 433.4 and 
435.4) DOE placed the revised Federal commercial

[[Page 29934]]

and multi-family high-rise residential building standards in a new 10 
CFR Part 433, entitled ``Energy Efficiency Standards for the Design and 
Construction of New Federal Commercial and Multi-Family High-Rise 
Residential Buildings.'' The updated standards for Federal low-rise 
residential buildings are contained in 10 CFR Part 435, Subpart A.
    Section 433 of EISA added section 305(a)(3)(D) to require fossil 
fuel energy savings for certain building types. DOE will address the 
fossil fuel requirements of section 433 of EISA in a separate 
rulemaking. The fossil fuel requirement rulemaking may amend the same 
regulatory sections as those proposed to be amended in today's notice 
of proposed rulemaking. The proposed regulatory text in today's 
document would amend the current regulatory text, without consideration 
of amendments that may result from the fossil fuel requirement 
rulemaking. If and when these rulemakings are finalized, DOE will 
coordinate the final regulatory text between the two rulemakings.
    DOE notes that it is required to review and revise energy 
efficiency requirements for Federal building as the voluntary industry 
codes are updated. (42 U.S.C. 6834(a)(3)(b)) DOE intends to address 
this review of the current versions of ASHRAE Standard 90.1 and the 
International Code Council International Energy Conservation Code 
(IECC) as the minimum energy efficiency performance standards in 10 CFR 
Parts 433 and 435 in a separate rulemaking.

II. Discussion of Today's Action

A. Scope of Proposed Rulemaking

1. Definition of ``Federal Building''
    Section 305 of ECPA requires, in part, that DOE establish, by rule, 
standards for new Federal buildings that require, if life-cycle cost-
effective, new Federal buildings be designed to achieve energy 
consumption levels that are at least 30 percent below the levels 
established in the applicable industry code, and that sustainable 
design principles are applied to the siting, design, and construction 
of all new and replacement buildings. (42 U.S.C. 6834(a)(3)(A)(i)) 
Further, water conservation technologies must be applied to the extent 
that the technologies are life-cycle cost-effective. (42 U.S.C. 
6834(a)(3)(A)(ii)) and 6834(a)(3)(D)(vii)
    As stated previously in this notice, DOE has established 
regulations that address the energy consumption requirements for new 
Federal buildings. (72 FR 72565) In the final rule for the energy 
consumption requirements of new Federal buildings, DOE relied on the 
statutory definition of ``Federal building,'' i.e., ``any building to 
be constructed by, or for the use of, any Federal agency which is not 
legally subject to State or local building codes or similar 
requirements.'' (72 FR 72565)
    Section 433 of EISA amended the definition of ``Federal building'' 
applicable to section 305 of EPCA, including the energy consumption, 
sustainability, and water conservation requirements. The statute now 
defines ``Federal building'' to mean any building to be constructed by, 
or for the use of, any Federal agency. DOE is proposing that the term 
include buildings built for the purpose of being leased by a Federal 
agency, and privatized military housing awarded subsequent to 
promulgation of this rule.\1\ (42 U.S.C. 6832(6)) DOE is proposing to 
revise the definition of ``new Federal building'' consistent with the 
amendment in EISA. Additionally, DOE is considering limiting the 
inclusion of leased buildings in the definition of ``Federal building'' 
to new leased buildings in which a Federal agency has significant 
control over the design of the building (e.g., ``lease-constructs''). 
DOE welcomes comments on these considerations.
---------------------------------------------------------------------------

    \1\ The Military Housing Privatization Initiative (MHPI) is a 
public/private program whereby private sector developers may own, 
operate, and maintain military family housing. The MHPI was enacted 
on February 10, 1996, as part of the National Defense Authorization 
Act for fiscal year 1996.
---------------------------------------------------------------------------

2. Consideration of Life-Cycle Costs
    In general, DOE is proposing that the sustainable design 
requirements be applied to all new and replacement Federal buildings to 
the extent those requirements are life-cycle cost effective. For a 
subset of new Federal buildings and Federal buildings undergoing major 
renovation, DOE is proposing that the sustainable design principles be 
applied to the ``extent practicable.'' As explained further in this 
section, ``extent practicable'' considerations would include specified 
cost considerations separate from a life-cycle cost threshold.
    Section 305(a)(3)(i)(II) requires DOE to establish regulations that 
require sustainable design principles to be applied to the siting, 
design, and construction of all new and replacement Federal buildings, 
to the extent life-cycle cost-effective. (42 U.S.C. 6834(a)(3)(i)(II))
    Section 305(a)(3) of ECPA as amended directs DOE to establish 
regulations that require sustainable design principles be applied to a 
subset of new Federal buildings and Federal buildings undergoing major 
renovation, without specifying consideration of life-cycle cost. (42 
U.S.C. 6834(a)(3)(D)(i)(III)) A building is in the subset of new 
Federal buildings and Federal buildings undergoing major renovations if 
the building is:
     A public building as defined in 40 U.S.C. 3301,\2\ for 
which the Administrator of General Services is required to transmit a 
prospectus to Congress under 40 U.S.C. 3307, or
---------------------------------------------------------------------------

    \2\ Under 40 U.S.C. 3301(5) ``public building'' is a building, 
whether for single or multitenant occupancy, and its grounds, 
approaches, and appurtenances, which is generally suitable for use 
as office or storage space or both by one or more Federal agencies 
or mixed-ownership Government corporations.
    ``Public building'' includes Federal office buildings, post 
offices, customhouses, courthouses, appraisers stores, border 
inspection facilities, warehouses, record centers, relocation 
facilities, telecommuting centers, similar Federal facilities, and 
any other buildings or construction projects the inclusion of which 
the President considers to be justified in the public interest.
    The definition does not include a building or construction 
project that is on the public domain (including that reserved for 
national forests and other purposes); that is on property of the 
Government in foreign countries; that is on Indian and native Eskimo 
property held in trust by the Government; that is on land used in 
connection with Federal programs for agricultural, recreational, and 
conservation purposes, including research in connection with the 
programs; that is on or used in connection with river, harbor, flood 
control, reclamation or power projects, for chemical manufacturing 
or development projects, or for nuclear production, research, or 
development projects; that is on or used in connection with housing 
and residential projects; that is on military installations 
(including any fort, camp, post, naval training station, airfield, 
proving ground, military supply depot, military school, or any 
similar facility of the Department of Defense); that is on 
installations of the Department of Veterans Affairs used for 
hospital or domiciliary purposes; or the exclusion of which the 
President considers to be justified in the public interest.
---------------------------------------------------------------------------

     A building and major renovation for which the construction 
project cost is at least $2,500,000 (in 2007 dollars, adjusted for 
inflation using U.S. Department of Labor Producer Price Indexes).

If a new or replacement Federal building does not fit into one of these 
two categories, sustainable design principles would apply only to the 
extent that they are life-cycle cost-effective.
    DOE is proposing that sustainable design principles be applied to 
the new Federal buildings and major renovations identified by the 
statute. The sustainable design principles set forth in the 
requirements of this proposed rule would be required to be incorporated 
into the new Federal building or major renovation design ``to the 
extent practicable,'' except in the case of indoor environmental 
quality requirements, which would be mandatory. DOE

[[Page 29935]]

believes that indoor air quality requirements are vitally important to 
the health and life safety of Federal employees and visitors to Federal 
buildings and has therefore emphasized their importance by making the 
requirements mandatory. For major renovations, the sustainable design 
requirements would only apply to the portion of the building being 
renovated.
    Today's proposed rule would require Federal agencies to apply 
sustainable design principles to the extent practicable when designing 
the new Federal buildings and major renovations identified by the 
statute. Under the proposed rule, actions would be required to be 
implemented ``to the extent practicable;'' i.e., actions would need to 
be implemented unless an agency determines that: Full implementation 
would prevent the building or facility from fulfilling a key design or 
function objective; the necessary products or materials cannot be 
commercially procured in a timely fashion; the net increases in total 
project life cycle costs are very large, or if initial funding required 
to integrate features to comply with this rule exceeds 3 percent of 
total first costs. DOE requests comments on whether or not the 3 
percent of total first cost limitation should be added directly to the 
definition of ``to the extent practicable'' in today's rulemaking. In 
this rulemaking, individual sustainable design measures are discussed 
individually. It is the intent of the 3 percent of total project cost 
that the entire package of sustainable design measure be less than 3 
percent of the total first cost for the project. In addition, DOE 
requests comments on whether ``very large'' net increases in total 
project life cycle costs should be numerically defined, and if so, what 
that threshold or range should be.
    DOE believes that life cycle costing is an important consideration 
in the definition of ``to the extent practicable,'' but that failure of 
proof of life-cycle cost-effectiveness in of itself is not sufficient 
to disregard the application of sustainable design principles. The 
life-cycle cost analysis may not capture all of the benefits from 
sustainable design. Environmental impacts often extend far beyond the 
``life'' of a building or measures installed in a building. If a 
required action cannot be fully implemented for one of these reasons, 
agencies should endeavor to implement the required action to the 
maximum extent feasible.
    DOE is proposing that new Federal buildings that are not in these 
two categories identified above would need to comply with the 
sustainable design requirements only if they are life-cycle cost-
effective.
    The requirements in this proposed rule would not apply to major 
renovations that have construction project costs less than $2,500,000 
(in 2007 dollars, adjusted for inflation using U.S. Department of Labor 
Producer Price Indexes).
3. Definition of ``Major Renovation''
    Major renovations are defined in the proposed rule as changes to a 
building that provide significant opportunities for substantial 
improvement in the sustainable design elements covered in this rule, 
including energy efficiency. DOE has also included in the definition of 
major renovation the statement that any renovation that exceeds 25 
percent of the replacement value of the building would be considered a 
major renovation. The replacement value is used rather than the current 
value because the current value of old buildings in poor condition may 
be very low. The proposed rule would only apply to portions of the 
building or building system that are being renovated. For example, if 
the renovation includes the replacement of the watering system for 
landscaping around an office building, then the requirements for 
outdoor water use in the rules would apply. DOE notes that this 
definition has been used for a number of years by the Department of 
Defense, the Federal government's single largest manager of Federal 
buildings. DOE welcomes comments on the definition of ``major 
renovation,'' particularly as to whether the definition would result in 
an unreasonable burden on planned renovations that are not extensive 
enough to accomplish sustainable design objectives.

B. Solar Hot Water Heaters

    Section 523 of EISA modifies Section 305(a)(3)(A) of ECPA to 
require 30 percent of hot water demand in new Federal buildings or 
Federal buildings undergoing major renovations to be met by solar water 
heaters if life-cycle cost-effective. (42 U.S.C. 6834(a)(3)(A)(iii)) 
DOE interprets Section 523 to include all hot water usage in the 
building, including hot water used for restrooms, janitorial closets, 
food handling facilities, and laundry facilities. Agencies should 
calculate the total hot water load for the building and then determine 
if it is life cycle cost-effective to use solar hot water systems to 
meet 30 percent of the annual demand. This requirement has been 
reflected in the proposed rule. DOE welcomes comments on this 
requirement.

C. Federal Leadership in High Performance and Sustainable Building--
Guiding Principles

    DOE is proposing to add requirements to 10 CFR Parts 433 and 435 to 
implement the directive of section 305 of ECPA that Federal buildings 
use sustainable design principles for siting, design, and construction, 
and water conservation. As a basis for the proposed sustainability 
requirements DOE utilized the December 2008 version of the Guiding 
Principles originally adopted in the Federal Leadership in High 
Performance and Sustainable Building Memorandum of Understanding (MOU) 
signed by most Federal agencies. DOE incorporated those requirements 
into today's proposed rulemaking. The guiding principles are aimed at 
helping Federal agencies and organizations:
     Reduce the total ownership cost of facilities.
     Improve energy efficiency and water conservation.
     Provide safe, healthy, and productive built environments.
     Promote sustainable environmental stewardship.
    Under Executive Order 13514, ``Federal Leadership in Environmental, 
Energy and Economic Performance'' (October 5, 2009), Federal agencies 
are already required to ensure that new construction and major 
renovations of agency buildings comply with the Guiding Principles. By 
basing the rulemaking on the Guiding Principles already in use, DOE 
intends to minimize the regulatory burden on Federal agencies. DOE 
notes that the Guiding Principles do not address the issue of site 
selection, and therefore provisions related to site selection have been 
added to the proposal. Additionally, DOE is aware that revisions to the 
Guiding Principles are currently being considered. DOE will evaluate 
and consider any revisions to the Guiding Principles as part of the 
final rule.
    DOE is aware that several voluntary industry standards that would 
address sustainable design are currently under development. 
Specifically, DOE is aware of the development of:
     ASHRAE 189.1P--Standard for the Design of High-
Performance, Green Buildings Except Low-Rise Residential Buildings,
     The International Green Construction Code under 
development by the International Code Council (ICC), and
     The National Green Building Standard jointly developed by 
the National Association of Home Builders and the ICC for residential 
buildings.

[[Page 29936]]

    To the extent that such voluntary industry standards are finalized 
prior to the issuance of a final rule under this rulemaking, DOE may 
consider incorporating some or all of the provisions of the identified 
voluntary industry standards. DOE welcomes comments on whether these or 
other nationally recognized green/sustainable building design standards 
should be deemed to comply with the sustainable design requirements in 
the DOE rules.
    The proposed requirements for sustainable design are nearly 
identical for commercial buildings (including high-rise residential) in 
10 CFR 433 and residential buildings in 10 CFR part 435. The 
differences are a requirement for radon control in residential 
buildings, and a signage requirement to prohibit smoking for commercial 
buildings only. Radon is generally considered to be less of a potential 
health concern in commercial buildings than in residential buildings. 
The signage requirement for prohibiting smoking is based on GSA notice 
in Federal Register on December 22, 2008.
    The major sustainable design elements of the proposed rules are:
     Integrated Design Principles.
     Optimize Energy Performance.
     Protect and Conserve Water.
     Enhance Indoor Environmental Quality.
     Reduce Environmental Impact of Materials.
     Building Siting.
1. Integrated Design Principles
    Integrated design principles include planning, setting goals, and 
building commissioning. Building commissioning is the process of 
ensuring that building systems and equipment are designed, installed, 
tested, and capable of being operated and maintained according to the 
owner's or occupants operational needs. Building commissioning is a key 
part of designing and building high-performance buildings because it 
helps ensure that controls, sensors, and equipment will perform as 
intended throughout their expected life. Building commissioning 
requires that the facility and all of its systems and assemblies are 
planned, designed, installed, tested, operated, and maintained to meet 
the owner's or occupant's project requirements.
    The building commissioning requirements in the proposed rule are 
based on the Guiding Principles. Additionally, DOE has specified the 
operation of a building as part of the commissioning efforts. DOE 
recognizes that certain Federal agencies are required to conduct water 
and energy evaluations of certain facilities. (42 U.S.C. 8253(f)). DOE 
has issued guidance on the implementation of this requirement, which 
would address the operational component of the commissioning 
requirement proposed in this rulemaking. That guidance can be found at 
https://www1.eere.energy.gov/femp/pdfs/eisa_s432_guidelines.pdf.
2. Optimize Energy Performance
    Energy efficiency is considered as a major component of sustainable 
building design. As mentioned above, DOE issued a final rule on 
December 21, 2007, that incorporates the energy efficiency standards 
required in section 305 of ECPA. That final rule incorporated the 
American Society of Heating, Refrigerating, and Air-Conditioning 
Engineers ANSI/ASHRAE/IESNA Standard 90.1-2004, ``Energy Standard for 
Buildings Except Low-Rise Residential Buildings,'' and the 
International Code Council's 2004 ``International Energy Conservation 
Code.'' That final rule also established a requirement for new Federal 
buildings to achieve a level of energy consumption at least 30 percent 
below that of the Standard 90.1-2004 or the 2004 IECC, as appropriate, 
when life-cycle cost-effective, as directed by the statute.
    Today's notice of proposed rulemaking expands on the energy-related 
requirements in the previously published final rule to include solar 
water heating and renewable energy generation projects. The solar water 
heating requirements are from section 305 of ECPA as amended by section 
523 of EISA. The proposed renewable energy generation requirements are 
reflective of the Guiding Principles and would support compliance with 
section 203 of the Energy Policy Act of 2005, which sets renewable 
energy consumption percentages for Federal agencies. (42 U.S.C. 15852)
3. Protect and Conserve Water
    Water is a key element of sustainability because water is a limited 
resource. The U.S. Government Accountability Office estimated in 2003 
that 36 States will face water shortages by 2013. The U.S. Geological 
Survey estimates water use in the U.S. and reports that 410 billion 
gallons per day were withdrawn for all uses during 2005. Public supply 
(including commercial and industrial uses) and domestic water use was 
48 billion gallons per day, or 12 percent of the national total. Most 
water use in the nation is for thermoelectric power (49 percent) and 
irrigation (31 percent).
    The proposed rule would implement the requirement established in 
EPCA, as amended, that if water is used to achieve energy efficiency, 
water conservation technologies shall be applied to the extent that the 
technologies are life-cycle cost-effective. (42 U.S.C. 
6834(a)(3)(A)(ii)) As proposed, this requirement would apply in 
instances in which a Federal agency was relying on technologies such as 
cooling towers or condensing units as a means to achieve energy 
efficiency. In those instances, the proposed regulation would require 
that, to the extent life-cycle cost-effective, the technologies are 
water efficient.
    The proposed rule adopts the water saving targets from the Guiding 
Principles: a 20 percent reduction of indoor potable water usage and a 
50 percent reduction in outdoor potable water usage. DOE is interested 
in input on how to define procedures relating to the calculation of 
baseline water use and water savings for meeting these requirements. 
The DOE Federal Energy Management Program provides an estimate of water 
use by building type (https://www1.eere.energy.gov/femp/program/waterefficiency_useindices.html) and in the absence of other data, DOE 
proposes to use these as the baseline. To the extent practicable, use 
of WaterSense labeled products, or products with comparable water 
efficiency, for product categories labeled by WaterSense is required.
    The issue of stormwater and hydrology is not addressed in this 
rule. Stormwater runoff for ``Federal development projects'' is 
explicitly addressed in Section 438 of EISA. The U.S. Environmental 
Protection Agency (EPA) has issued guidance on complying with section 
438 of EISA (https://www.epa.gov/owow/nps/lid/section438/).
4. Enhance Indoor Environmental Quality
    The indoor environmental quality requirements from the Guiding 
Principles were adapted for this proposed rule. Leading sustainability 
programs include indoor environmental quality in their scope. A key 
component of the indoor environment is air quality. All buildings have 
some potential for indoor air quality-related health problems, such as 
``sick-building syndrome.'' The proposed rule addresses the major 
aspects of indoor air quality--source control for pollutants, moisture, 
and ventilation.
    For pollutant sources, the rules specify low-emitting materials and 
products used within buildings. For

[[Page 29937]]

moisture control, the proposed rule addresses the potential for 
moisture flows and condensation that may lead to the development of 
mold. The proposed rule does not identify a particular standard to 
address moisture control. DOE requests comment on whether a voluntary 
industry standard, such as the ASHRAE ``Indoor Air Quality Guide: Best 
Practices for Design, Construction and Commissioning'' (2009), should 
be incorporated into the regulation.
    For ventilation, the proposed rule would require use of ASHRAE 
``Standards on Ventilation for Acceptable Indoor Air Quality: Standard 
62.1'' for commercial buildings and residential high-rise buildings and 
Standard 62.2 for low-rise residential buildings. Signage prohibiting 
smoking would be required for commercial and high-rise residential 
buildings.
    Radon control requirements from ASTM Standard 1465 are included in 
the proposed rule for low-rise residential buildings. DOE requests 
comments on the inclusion of a radon control requirement. DOE also 
welcomes suggestions for other or additional radon standards that could 
be incorporated into this rule. Measures to seal the foundation to 
prevent or reduce radon from entering the building would be required in 
regions with high radon potential (about one-third of the nation, 
mostly in colder States). DOE has taken the definition of high radon 
potential from EPA as counties that have a predicted average indoor 
radon screening level greater than 4 pCi/L (picocuries per liter), as 
shown on the map at: https://www.epa.gov/radon/zonemap.html. DOE 
requests comments on this definition of high radon potential.
    Radon is a cancer-causing naturally occurring radioactive gas that 
is the second leading cause of lung cancer in America and EPA estimates 
this leads to the loss of about 20,000 lives annually in radon related 
lung cancers.
5. Reduce Environmental Impacts of Materials
    Buildings use a diverse array of products. There is a limited 
supply of some products' raw materials. Products can also require a 
substantial amount of energy to be produced and transported. In 1998, 
an EPA report found 10.8 million tons of waste was generated from new 
building construction in 1996. In 2003, EPA reported a 21 percent 
increase in construction waste since the 1998 report. The proposed rule 
would reduce construction waste and would require the use of materials 
with recycled content and rapidly renewable materials. The proposals 
for construction waste and recycled content are taken from the Guiding 
Principles. The 10 percent recycle content requirement is adopted from 
the original version of the Guiding Principles.
    The proposed rule also addresses ozone depletion. The EPA defines 
ozone-depleting substance(s) (ODS) as a compound that contributes to 
stratospheric ozone depletion. ODS include CFCs, HCFCs, halons, methyl 
bromide, carbon tetrachloride, and methyl chloroform. ODS are generally 
very stable in the troposphere and only degrade under intense 
ultraviolet light in the stratosphere. When they break down, they 
release chlorine or bromine atoms, which then deplete ozone. The 
proposed rule would instruct agencies to not use ozone depleting 
compounds if an environmentally preferable material is available. 
Again, this element of the rule was adapted from the Guiding 
Principles.
    DOE requests comments on whether requirements related to waste 
diversion and ozone depletion should be included in the rulemaking.
6. Building Siting
    The proposed rule includes requirements for siting and directs 
Federal agencies to comply with all applicable Executive Orders, 
statutes and regulations. The applicable siting authorities may include 
Executive Orders 12072, 13006, and 13514; the Rural Development Act of 
1972; Federal Urban Land Use Act of 1949; and Public Buildings 
Cooperative Use Act of 1976.
    Site selection is important to minimize direct and indirect 
environmental impacts on the surroundings of the building(s) to be 
constructed, including protecting environmentally sensitive lands, 
reducing energy use for transportation and associated greenhouse gas 
emissions, and orienting the building to take advantage of solar heat 
gains in the winter and/or minimize solar heat gains in the summer. The 
proposed rule includes energy efficiency consideration as a siting 
priority.

D. Life-Cycle Cost-Effectiveness

    Section 305 of ECPA, as amended by section 109 of the Energy Policy 
Act of 2005, mandates the application of sustainable design principles 
to the siting, design, and construction of all new and replacement 
buildings when life-cycle cost-effective. (42 U.S.C. 
6834(a)(3)(A)(i)(II)) Section 433 of EISA further amended section 305 
of ECPA to apply sustainable design principles to certain new Federal 
buildings and major renovations of Federal buildings without specific 
consideration of life-cycle cost-effectiveness. (42 U.S.C. 
6834(a)(3)(D)(i)(III)) For major renovations and new buildings that 
fall in the two categories defined in EISA (``public buildings'' 
requiring a prospectus and buildings/renovations costing at least $2.5 
million), the proposed rule would apply to the extent practicable.
    Under the proposed rule, for new buildings that do not fall into 
the two categories, the sustainability design requirements would apply 
only if the requirements are proven to be life-cycle cost-effective 
using the procedures in 10 CFR part 436 (excluding indoor air quality 
requirements, which are mandatory). DOE is proposing that Federal 
agencies would be permitted to use one of four methods listed in 10 CFR 
part 436 to demonstrate life-cycle cost-effectiveness. These methods 
include lower life-cycle costs, positive net savings, savings-to-
investment ratio that is estimated to be greater than one, and an 
adjusted internal rate of return that is estimated to be greater than 
the Federal Energy Management Program (FEMP) discount rate. The 
proposed rule would only require that sustainable design measures that 
are cost effective be done, it would not prohibit measures that improve 
sustainability but cannot be shown to be cost effective.
    Defining life-cycle cost as it applies to sustainable buildings 
presents challenges. Some of the benefits are economically measurable 
over a finite period of time, such as energy and water savings. Other 
benefits may not have an economic benefit that can be clearly 
calculated, such as reduced greenhouse gases, reduced waste in 
landfills, protection of natural habitat, etc. DOE has not attempted to 
quantify externalities related to sustainable design, such as the value 
of wetlands preservation. The International Organization for Standards 
(ISO) has outlined principles and a framework for life cycle 
assessments for environmental management in ISO Standard 14040 that 
provides some guidance. DOE welcomes public comments on whether DOE 
should attempt to quantify externalities for these types of 
environmental benefits. Also, DOE requests comments on which types of 
sustainability objectives should be subject to life cycle cost 
analysis.

E. Green Building Certification Systems

    Section 433 of EISA added a certification system requirement for 
new Federal buildings and renovations that are public buildings defined 
in 40 U.S.C. 3301, for which the Administrator of General Services is 
required to transmit a prospectus to

[[Page 29938]]

Congress under U.S.C. Title 40, section 3307, or that are at least 
$2,500,000 in costs adjusted annually for inflation. (42 U.S.C. 
6834(a)(3)(D)(i)(III)) Under that requirement, DOE is to ``identify a 
certification system and level for green buildings that the Secretary 
determines to be the most likely to encourage a comprehensive and 
environmentally-sound approach to certification of green buildings.'' 
Section 433 of EISA directs that the identification of the 
certification system and level shall be based on a review of findings 
prepared by the Federal Director of the Office of Federal High-
Performance Green Buildings (within the General Service Administration) 
under section 436(h) of EISA and the criteria specified in clause 
(iii), shall identify the highest level the Secretary determines is 
appropriate above the minimum level required for certification under 
the system selected, and shall achieve results at least comparable to 
the system used by and highest level referenced by the General Services 
Administration (GSA) as of the date of enactment of EISA. In addition 
to the findings of the Federal Director, DOE is to take into 
consideration--
    (I) The ability and availability of assessors and auditors to 
independently verify the criteria and measurement of metrics at the 
scale necessary to implement this subparagraph;
    (II) The ability of the applicable certification organization to 
collect and reflect public comment;
    (III) The ability of the standard to be developed and revised 
through a consensus-based process;
    (IV) An evaluation of the robustness of the criteria for a high-
performance green building, which shall give credit for promoting:
    (a) Efficient and sustainable use of water, energy, and other 
natural resources;
    (b) Use of renewable energy sources;
    (c) Improved indoor environmental quality through enhanced indoor 
air quality, thermal comfort, acoustics, day lighting, pollutant source 
control, and use of low-emission materials and building system 
controls; and
    (d) Such other criteria as the Secretary determines to be 
appropriate.
    (V) National recognition within the building industry. (42 U.S.C. 
6834(a)(3)(D)(iii))
    GSA identified a green building certification system under section 
436(h) of EISA in a letter to the Secretary of Energy.\3\ GSA stated 
that the U.S. Green Building Council's Leadership in Energy and 
Environmental Design (LEED) rating system would meet the criteria in 
section 436(h) of EISA and identified the ``Silver'' level as the 
minimum level. The Department of Defense also identified LEED with the 
Silver level as the preferred rating system and level in a letter to 
the Secretary of Energy.\4\
---------------------------------------------------------------------------

    \3\ Letter from Lorita Doan, GSA Administrator to Samuel Bodman, 
Secretary of Energy, dated April 25, 2008. EXEC-2008-005379.
    \4\ Letter from Wayne Arny, Deputy Under Secretary of Defense 
(Installations and Environment), dated May 5, 2009.
---------------------------------------------------------------------------

    GSA informed DOE in the letter that it evaluated the following five 
rating systems:
     Building Research Establishment's Environmental Assessment 
Method (BREEAM);
     Comprehensive Assessment System for Building Environmental 
Efficiency (CASBEE);
     GBTool;
     Green GlobesTM U.S.; and
     Leadership in Energy and Environmental Design.

GSA stated that it evaluated each rating system's:
     Applicability: Whether it is relevant to the large scale 
and complexity of Federal buildings.
     Stability: Whether it has been stable over time, so that 
the evaluation of a building's performance is not subject to drastic 
changes.
     Objectivity: Whether it measures quantifiable aspects of 
sustainable design and its ratings are verified by qualified third 
parties.
     Availability: Whether it is widely used and has broad 
practitioner awareness.
    In its identification, GSA utilized a 2006 report by Pacific 
Northwest National Laboratory \5\ (PNNL) that evaluated leading green 
building rating systems. The PNNL report identified the five rating 
systems listed above as having the greatest potential of addressing GSA 
needs. The PNNL report summarized and reviewed each of the five rating 
systems, but did not provide a recommendation on a preferred system.
---------------------------------------------------------------------------

    \5\ Fowler, KM and Rauch, EM. 2006. Sustainable Building Rating 
Systems: Summary. PNNL-15858. Pacific Northwest National Laboratory. 
Richland, Washington.
---------------------------------------------------------------------------

    DOE recognizes that there are multiple green building rating 
systems currently available and additional systems may be developed. 
These systems have various levels of ratings, representing differing 
degrees of energy efficiency and sustainable design. Additionally, the 
existing systems may be revised and updated over time.
    As part of a Federal building being green-rated, DOE is considering 
the development of requirements to apply the continued certification of 
a building as a certified green building. DOE is considering a 
requirement for Federal agencies to demonstrate that the energy use of 
a certified green building is consistent with the energy use targets 
identified under the green building certification program. DOE is 
considering a requirement for a Federal agency to demonstrate that the 
energy use, at a minimum, in the first year of a building's green 
building certification is consistent with the energy use identified as 
part of the certification process. If the building's energy use 
exceeded the target energy use identified under the green building 
rating system, DOE is considering the removal of the green building 
certification.
    Focusing on the energy targets identified in a green building 
rating system would be consistent with the Guiding Principles MOU, 
which directs the agencies to establish a whole building performance 
target that takes into account the intended use, occupancy, operations, 
plug loads, and other energy demands, and design. Reviewing energy use 
in the first year following construction or renovation would help 
ensure that green-rated buildings continue to perform as originally 
specified under the rating. DOE is requesting comment on this potential 
regulation.
    The statute does not require DOE to identify a specific 
commercially available system, but requires DOE to identify a 
certification system and level for green buildings. As stated in the 
statute, DOE believes that the green rating of a building must 
encourage a comprehensive and environmentally sound approach to 
building and renovation design. Given that systems may be further 
developed, DOE is proposing minimum criteria for any system that a 
Federal agency would choose to use to green rate a building.
    DOE is proposing criteria for agencies to identify green rating 
systems if an agency chooses to green rate a building. Under the 
proposed regulations, if an agency were to choose to green rate a 
building the green rating system would be required to--
    (1) Enable assessors and auditors to independently verify the 
criteria and measurement metrics of the system;
    (2) Be developed by a certification organization that
    (i) Provides an opportunity for public comment on the system; and
    (ii) Provides an opportunity for development and revision of the 
system through a consensus based process; and
    (3) Be nationally recognized within the building industry.

[[Page 29939]]

    Included in the statutory criteria for consideration by DOE in 
identifying green building rating systems is the evaluation of the 
robustness of the system's criteria for a high-performance green 
building. DOE considers the evaluation of the ``robustness'' of a green 
building rating system to include consideration of its ability to 
improve over time and ensure design performance over time. As such, DOE 
is also considering to require that green rating systems used by 
Federal agencies are those systems that--
    (1) Are subject to periodic evaluation and assessment of the 
environmental and energy benefits that result under the rating system; 
and
    (2) Include a verification system for post-occupancy assessment of 
the rated buildings to periodically demonstrate continued environmental 
benefits and energy savings.
    DOE understands that existing green building rating systems may not 
meet these two additional criteria, but understands that several 
systems are moving in a direction consistent with these additional 
criteria.
    Under this proposal, DOE believes that agencies would be provided 
the flexibility to choose the green building rating system that best 
fits their needs as long as the system meets the criteria set in this 
rulemaking.
    Under today's proposed rule, the minimum level of rating would need 
to be a level that ensures compliance with the applicable energy 
efficiency, water use, and sustainable design requirements established 
in regulation. DOE requests comments as to whether the minimum level 
should also reflect the Guiding Principles MOU and all applicable 
executive orders.
    As indicated above, GSA identified LEED Silver as a green rating 
system and level that meets the criteria expressly identified in the 
statute. DOE requests comment on other green rating systems and 
associated levels/points that also would meet the statutory criteria. 
DOE also requests comments on the additional criteria being considered 
by DOE. DOE intends to make a list of any green building rating systems 
determined by Federal agencies to meet the criteria adopted in the 
final rule available to Federal agencies in order to provide guidance. 
DOE requests comment on the proposed criteria and the potential for 
other green rating systems to meet the proposed criteria.
    Section 305(a)(3)(D)(v) of ECPA states that ``the Secretary may by 
rule allow Federal agencies to develop internal certification 
processes, using certified professionals, in lieu of certification by 
the certification entity identified under clause (i)(III). The 
Secretary shall include in any such rule guidelines to ensure that the 
certification process results in buildings meeting the applicable 
certification system and level identified under clause (i)(III). An 
agency employing an internal certification process must continue to 
obtain external certification by the certification entity identified 
under clause (i)(III) for at least 5 percent of the total number of 
buildings certified annually by the agency.'' Under the proposal 
agencies would be able to submit to DOE their own internal 
certification systems for approval by DOE.

III. Reference Resources

    DOE has prepared a list of resources to help Federal agencies 
address the principles of sustainable design. The Federal Register 
final rule published on December 21, 2007 (71 FR 72565) contains 
reference resources for energy efficiency. These resources come in many 
forms (such as design guidance and case studies) and in a variety of 
media (such as in printed documents or on Web sites).

Life-Cycle Cost Analysis--U.S. DOE Federal Energy Management Program 
https://www.access.gpo.gov/nara/cfr/waisidx_04/10cfr436_04.html

    The life-cycle cost analysis rules promulgated in 10 CFR part 436 
Subpart A, ``Methodology and Procedures for Life Cycle Cost Analysis,'' 
conform to requirements in the Federal Energy Management Improvement 
Act of 1988 and subsequent energy conservation legislation. The life-
cycle cost guidance, discount rates, and energy price projections are 
determined annually by FEMP and the Energy Information Administration, 
and published in the Annual Supplement to The National Institute of 
Standards and Technology Handbook 135: ``Energy Price Indices and 
Discount Factors for Life-Cycle Cost Analysis.'' FEMP also provides 
guidance on the LCC requirements of Executive Order 13423 at https://www1.eere.energy.gov/femp/program/lifecycle.html and https://www1.eere.energy.gov/femp/information/download_blcc.html. Life cycle 
cost rules also refer to OMB Circular A-4 and A-94, which may be found 
at the following links:

Circular A-4--www.whitehouse.gov/OMB/Circulars/a004/a-4.pdf.
Circular A-94_www.whitehouse.gov/omb/circulars/a094/a094.html.

``Whole Building Design Guide--National Institute of Building 
Sciences'' https://www.wbdg.org

    This is a portal providing one-stop access to up-to-date 
information on a wide range of building-related guidance, criteria and 
technology from a whole buildings perspective. Specific guidance for 
implementing the Guiding Principles for sustainable buildings is 
provided at https://www.fedcenter.gov/Documents/index.cfm?id=11130&pge_prg_id=19319&pge_id=1860.

American Society of Heating, Refrigerating and Air-Conditioning 
Engineers (ASHRAE) https://spc189.ashraepcs.org/

    ASHRAE has issued Standard 189.1, ``Standard for the Design of 
High-Performance, Green Buildings Except Low-Rise Residential 
Buildings.''

``Building America''--U.S. Department of Energy https://www.eere.energy.gov/buildings/building_america/

    Building America is a private/public partnership that develops 
energy solutions for new and existing homes. The Building America 
project combines the knowledge and resources of industry leaders with 
DOE's technical capabilities. Together, they act as a catalyst for 
change in the home-building industry.

Energy & Environmental Building Association (EEBA) https://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 https://www.pathnet.org/

    PATH is dedicated to accelerating the development and use of 
technologies that radically improve the quality, durability, energy 
efficiency, environmental performance, and affordability of America's 
housing. PATH is a voluntary partnership between leaders of the 
homebuilding, product manufacturing, insurance, and financial 
industries and representatives of Federal agencies concerned with 
housing.

WaterSense Program https://www.epa.gov/watersense

    Launched in 2006, WaterSense is an EPA-sponsored partnership 
program that seeks to protect the future of our

[[Page 29940]]

nation's water supply by promoting water efficiency and enhancing the 
market for water-efficient products, programs, and practices. 
WaterSense helps consumers identify water-efficient products and 
programs that meet WaterSense water efficiency and performance 
criteria. Products carrying the WaterSense label perform well, help 
save money, and encourage innovation in manufacturing.

Federal Energy Management Program https://www1.eere.energy.gov/femp/program/sustainable_resources.html

Executive Order 13514--Federal Leadership in Environmental, Energy, and 
Economic Performance https://www1.eere.energy.gov/femp/regulations/eo13514.html

    This executive order references the Guiding Principles which are 
incorporated into this rulemaking.

IV. Regulatory Analysis

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

    Today's notice of public rulemaking is a significant regulatory 
action under section 3(f)(1) of Executive Order 12866, ``Regulatory 
Planning and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, 
today's action was reviewed by the Office of Information and Regulatory 
Affairs (OIRA) in the Office of Management and Budget (OMB).

B. Review Under the Regulatory Flexibility Act

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

C. Review Under the Paperwork Reduction Act of 1995

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

D. Review Under the National Environmental Policy Act of 1969

    The Department prepared a draft Environmental Assessment (EA) (DOE/
EA-1463) pursuant to the Council on Environmental Quality's (CEQ) 
Regulations for Implementing the Procedural Provisions of the National 
Environmental Policy Act (40 CFR parts 1500-1508), the National 
Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et 
seq.), and DOE's NEPA Implementing Procedures (10 CFR part 1021).
    The draft EA addresses the potential incremental environmental 
effects attributable to the application of the proposed rules. The 
draft EA has been added to the docket for this rulemaking.

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

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

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

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

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. For a proposed regulatory action likely to result in a 
rule that may cause the expenditure by State, local, and Tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more in any 1 year (adjusted annually for inflation), section 202 of 
UMRA requires a Federal agency to publish a written statement that 
estimates the resulting costs, benefits, and other effects on the 
national economy. (2 U.S.C. 1532(a) and (b)) The UMRA also requires a 
Federal agency to develop an effective process

[[Page 29941]]

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

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

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

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

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

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

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

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

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

V. Approval of the Office of the Secretary

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