[Federal Register Volume 78, Number 131 (Tuesday, July 9, 2013)]
[Rules and Regulations]
[Pages 40945-40953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16297]


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DEPARTMENT OF ENERGY

10 CFR Part 433

[Docket No. EERE-2011-BT-STD-0055]
RIN 1904-AC60


Energy Efficiency Design Standards for New Federal Commercial and 
Multi-Family High-Rise Residential Buildings

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

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (DOE) is publishing this final 
rule to implement provisions in the Energy Conservation and Production 
Act (ECPA) that require DOE to update the baseline Federal energy 
efficiency performance standards for the construction of new Federal 
commercial and multi-family high-rise residential buildings. This rule 
updates the baseline Federal commercial standard to the American 
Society of Heating, Refrigerating, and Air-Conditioning Engineers 
(ASHRAE) Standard 90.1-2010.

DATES: This rule is effective September 9, 2013. The incorporation by 
reference of certain publications in the rule is approved by the 
Director of the Federal Register as of September 9, 2013.

ADDRESSES: This rulemaking can be identified by docket number EERE-
2011-BT-STD-0055 and/or RIN number 1904-AC60.
    Docket: The docket is available for review at http://www.regulations.gov including Federal Register Notices, public meeting 
attendee lists, transcripts, comments and other supporting documents/
materials. All documents in the docket are listed in the http://www.regulations.gov index. However, not all documents listed in the 
index may be publicly available, such as information that is exempt 
from public disclosure.
    For further information on how to review public comments or review 
hard copies of the docket in the resource room, contact Ms. Brenda 
Edwards at (202) 586-2945 or email [email protected].

FOR FURTHER INFORMATION CONTACT: Mr. Mohammed Khan, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, Mailstop EE-2J, 1000 Independence Avenue SW., 
Washington, DC 20585, (202) 586-7892, email: [email protected], 
or Ms. Ami Grace-Tardy Esq., U.S. Department of Energy, Office of the 
General Counsel, Forrestal Building, GC-71, 1000 Independence Avenue 
SW., Washington, DC 20585, (202) 586-5709, email: [email protected].

SUPPLEMENTARY INFORMATION: This rulemaking incorporates by reference 
the following standard into 10 CFR Part 433:
     ANSI/ASHRAE/IESNA Standard 90.1-2010, Energy Standard for 
Buildings Except Low-Rise Residential Buildings, I-P Edition, Copyright 
2010.
    Copies of this standard are available from the American Society of 
Heating Refrigerating and Air-Conditioning Engineers, Inc., 1791 Tullie 
Circle, NE., Atlanta, GA 30329, (404) 636-8400, http://www.ashrae.org.
    Also, a copy of this standard is available for inspection at U.S. 
Department of Energy (DOE), Office of Energy Efficiency and Renewable 
Energy, Building Technologies Program, 6th Floor, 950 L'Enfant Plaza, 
SW., Washington, DC 20024. For information on the availability of this 
standard at DOE, contact Ms. Brenda Edwards at (202) 586-2945 or email 
[email protected].

I. Introduction
II. Executive Summary
III. Discussion of Today's Action
IV. Compliance Date
V. Reference Resources
VI. Regulatory Analysis
VII. Congressional Notification

I. Introduction

    Section 305 of the Energy Conservation and Production Act (ECPA), 
as amended, requires DOE to establish building energy efficiency 
standards for all new Federal buildings. (42 U.S.C. 6834(a)(1)) The 
standards established under section 305(a)(1) of ECPA must contain 
energy efficiency measures that are technologically feasible, 
economically justified, and meet the energy efficiency levels in the 
applicable voluntary consensus energy codes specified in section 305. 
(42 U.S.C. 6834(a)(1)-(3))
    Under section 305 of ECPA, the referenced voluntary consensus code 
for commercial buildings (including multi-family high rise residential 
buildings) is the American Society of Heating, Refrigerating, and Air-
Conditioning Engineers (ASHRAE) Standard 90.1 and the referenced code 
for low-rise residential buildings is the International Energy 
Conservation Code (IECC). (42 U.S.C. 6834(a)(2)(A)) DOE codified these 
referenced codes as baseline Federal building standards into energy 
efficiency standards in 10 CFR parts 433, 434, and 435. Also under 
section 305 of ECPA, DOE must establish, by rule, revised Federal 
building energy efficiency performance standards for new Federal 
buildings that require such buildings be designed to achieve energy 
consumption levels that are at least 30 percent below the levels 
established in the referenced codes (baseline Federal building 
standards), if life-cycle cost-effective. (42 U.S.C. 
6834(a)(3)(A)(i)(I))
    Under section 305 of ECPA, not later than one year after the date 
of approval of each subsequent revision of the ASHRAE Standard or the 
IECC, DOE must determine whether to amend the baseline Federal building 
standards with the revised voluntary standard based on the cost-
effectiveness of the revised voluntary standard. (42 U.S.C. 
6834(a)(3)(B)) It is this requirement that today's rulemaking 
addresses. ASHRAE Standard 90.1 has been updated from the version 
currently referenced in DOE's regulations at 10 CFR part 433. DOE is 
now revising the latest baseline Federal building standard for 10 CFR 
part 433 from ASHRAE Standard 90.1-2007 to ASHRAE Standard 90.1-2010.
    Section 306(a) of ECPA provides that each Federal agency and the 
Architect of the Capitol must adopt procedures to ensure that new 
Federal buildings will meet or exceed the Federal building energy 
efficiency standards established under section 305. (42 U.S.C. 6835(a)) 
Section 306(b) bars the head of a Federal agency from expending Federal 
funds for the construction of a new Federal building unless the 
building meets or exceeds the applicable baseline Federal building 
energy standards established under section 305. (42 U.S.C. 6835(b)) 
This includes both the requirement that all new Federal buildings 
comply with the baseline standards in ASHRAE Standard 90.1 and the IECC 
and the requirement that new Federal buildings achieve energy 
consumption levels at least 30 percent below these minimum

[[Page 40946]]

baseline standards where life-cycle cost-effective. (42 U.S.C. 6834 
(a)(3)(A))

II. Executive Summary

    Under the Energy Conservation and Production Act (ECPA) DOE must 
determine whether the energy efficiency standards for new Federal 
buildings should be updated to reflect revisions to ASHRAE Standard 
90.1 based on the cost-effectiveness of the revisions. (42 U.S.C. 
6834(a)(3)(B)) One of the objectives considered by the committee 
developing Standard 90.1-2010 is for the requirements to be cost-
effective for use in the private sector. Using a scalar ratio for cost-
effectiveness based on an ASTM standard, as described below, the 
Standard 90.1 committee determined that ASHRAE Standard 90.1-2010 is 
cost-effective. Therefore, in today's final rule, DOE updates the 
energy efficiency standards for new Federal buildings to ASHRAE 
Standard 90.1-2010 for buildings for which design for construction 
began on or after one year after today's rule is published in the 
Federal Register.

III. Discussion of Today's Action

    DOE is issuing today's action as a final rule. As indicated above, 
DOE must determine whether the energy efficiency standards for new 
Federal buildings should be updated to reflect revisions to ASHRAE 
Standard 90.1 based on the cost-effectiveness of the revisions. (42 
U.S.C. 6834(a)(3)(B)) In today's final rule, DOE determines that the 
energy efficiency standards for new Federal buildings should be updated 
to reflect the 2010 revisions to ASHRAE Standard 90.1 based on the 
cost-effectiveness of the revisions.
    DOE reviewed ASHRAE Standard 90.1 for DOE's state building codes 
program and determined that the 2010 version of ASHRAE Standard 90.1 
would achieve greater energy efficiency than the prior version. This 
determination was subject to notice and comment. See 76 FR 43298 (July 
20, 2011). In that determination DOE found that the 2010 version of 
Standard 90.1 would save 18.2% more source energy than the 2007 version 
of Standard 90.1. (In a prior determination, DOE found that the 2007 
version of Standard 90.1 would save 3.9% more source energy than the 
2004 version of Standard 90.1 (76 FR 43287))
    In DOE's determination for the state building codes program, and 
again in today's rule, DOE states that the cost-effectiveness of 
revisions to the voluntary codes is considered through DOE's 
statutorily directed involvement in the codes process. See 76 FR 43300. 
Section 307 of ECPA requires DOE to participate in the ASHRAE code 
development process and to assist in determining the cost-effectiveness 
of the voluntary standards. (42 U.S.C. 6836) DOE is required to 
periodically review the economic basis of the voluntary building energy 
codes and participate in the industry process for review and 
modification, including seeking adoption of all technologically 
feasible and economically justified energy efficiency measures. (42 
U.S.C. 6836(b))
    ASHRAE Standard 90.1 is developed through an American National 
Standards Institute (ANSI) consensus process. The ANSI consensus 
process involves representatives of producers (industry), users (owners 
and designers), and general (advocates and government) segments of the 
building industry. Part of that process involves development of cost-
effectiveness criteria to use in the development of Standard 90.1. 
Another part of the process is extensive public review and comment of 
each change to Standard 90.1. During the course of the public review 
and comment process, cost-effectiveness is often a topic. One of the 
objectives considered by the committee developing Standard 90.1 is for 
the requirements of Standard 90.1 to be cost-effective for use in the 
private sector. As described below, the 90.1 committee used a scalar 
ratio for cost-effectiveness based on ASTM Standard E917--Standard 
Practice for Measuring Life-Cycle Costs of Buildings and Building 
Systems to determine that ASHRAE Standard 90.1-2010 is cost-effective. 
The 90.1 committee simplified the life-cycle cost (LCC) model in ASTM 
Standard E917 by condensing the economic variables into a single 
variable called the scalar ratio, which is simply a ratio of economic 
present worth factors. A scalar ratio of 20.2 was used in the 
development of Standard 90.1-2010. This is mathematically equivalent to 
a LCC analysis using the following parameters:

Economic Life--40 years
Loan Interest Rate--7%
Heating Fuel Escalation Rate--3.7%
Cooling Fuel Escalation Rate--3.7%
Federal Tax Rate--34%
State Tax Rate--5%
Discount Rate--7%

The above parameters and ASTM Standard E917 form the basis of the 
Federal LCC requirements found in 10 CFR Part 436.
    In today's rule, DOE is amending the energy efficiency standards 
applicable to new Federal buildings based on the determinations made by 
DOE as to the energy efficiency improvements of ASHRAE Standard 90.1-
2010, as compared to the predecessor version, and based on the 
considerations of cost-effectiveness incorporated into the codes 
processes, as well as DOE's involvement in those processes. This final 
rule amends 10 CFR part 433 to update the referenced baseline Federal 
energy efficiency performance standards. No other changes are proposed 
to 10 CFR part 433 by this rule.
    DOE notes that the 2012 IECC was finalized in summer 2011. On May 
17, 2012, DOE issued a final determination that the 2012 IECC would 
achieve greater energy efficiency in low-rise residential buildings 
than the previous editions of the IECC. (77 FR 29322)
    DOE also notes that there are a number of statutory provisions, 
regulations, Executive Orders, and memoranda of understanding that 
govern energy consumption in new Federal buildings. These include, but 
are not limited to, Executive Order 13514 (74 FR 52117 (October 8, 
2009)); sections 323, 433, 434, and 523 of EISA 2007; Executive Order 
13423 (72 FR 3919 (January 26, 2007)); the Guiding Principles for 
Federal Leadership in High Performance and Sustainable Buildings 
originally adopted in the Federal Leadership in High Performance and 
Sustainable Buildings MOU; section 109 of the Energy Policy Act of 2005 
(Pub. L. 109-58); and 10 CFR Parts 433 and 435. Today's rule supports 
and does not supplant these other applicable legal requirements for new 
Federal buildings. For example, by designing buildings to meet the 
ASHRAE 90.10-2010 baseline, Federal agencies also help achieve the 
energy intensity reductions mandated under section 431 of EISA 2007.

IV. Compliance Date

    Today's final rule applies to new Federal buildings for which 
design for construction begins on or after one year from the date of 
this rulemaking. Such buildings must be designed to exceed the energy 
efficiency level of the appropriate updated voluntary standard by 30 
percent if life-cycle cost-effective. However, at a minimum, such 
buildings must achieve the energy efficiency equal to that of the 
appropriate updated voluntary standard. One year lead time before the 
design for construction begins is consistent with DOE's previous 
updates to the energy efficiency baselines and the original statutory 
mandate for Federal building standards. One year lead time before 
design for construction begins helps minimize compliance costs to 
agencies, which may have planned buildings in various stages of design, 
and allows for design changes to more fully consider life-cycle cost-
effective measures (as opposed to

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having to revise designs in development, which may make incorporation 
of energy efficiency measure more difficult or expensive.)

V. Reference Resources

    The Department originally prepared this list of resources to help 
Federal agencies achieve building energy efficiency levels of at least 
30 percent below ASHRAE Standard 90.1-2004. The Department has reviewed 
these resources and believes that they are still applicable to helping 
agencies achieve building energy efficiency levels of at least 30% 
better than ASHRAE Standard 90.1-2010. The Department has updated this 
resource list as necessary. These resources come in many forms and in a 
variety of media. Resources are provided for all buildings, and also 
specifically for commercial and multi-family high-rise residential 
buildings.

Resources for Commercial and Multi-Family High-Rise Residential 
Buildings

Energy Efficient Products--U.S. DOE Federal Energy Management Program 
and U.S. Environmental Protection Agency (EPA) ENERGY STAR Program 
http://www.eere.energy.gov/femp/procurement http://www.energystar.gov/products
    Federal agencies are required by the Energy Policy Act of 2005 to 
specify Federal Energy Management Program (FEMP) designated or ENERGY 
STAR equipment, including building mechanical and lighting equipment 
and builder-supplied appliances, for purchase and installation in all 
new construction. This equipment is generally more efficient than the 
corresponding requirements of ASHRAE Standard 90.1-2010, and may be 
used to achieve part of the savings required of Federal building 
designs. (Today's rule does not specifically address the use of this 
equipment, but this Web site is listed for convenience because it is a 
very useful resource for achieving part of the energy savings required 
by the rule.)
Life-Cycle Cost Analysis--U.S. DOE Federal Energy Management Program 
http://www.access.gpo.gov/nara/cfr/waisidx_04/10cfr436_04.html
    The life-cycle cost analysis rules promulgated in 10 CFR part 436 
Subpart A Life-Cycle Cost Methodology and Procedures conform to 
requirements in the Federal Energy Management Improvement Act of 1988 
(Pub. L. 100-615) and subsequent energy conservation legislation, as 
well as Executive Order 13123, Greening the Government through 
Efficient Energy Management. The life-cycle cost guidance and required 
discount rates and energy price projections are determined annually by 
FEMP and the Energy Information Administration, and are published in 
the Annual Supplement to The National Institute of Standards and 
Technology Handbook 135: ``Energy Price Indices and Discount Factors 
for Life-Cycle Cost Analysis'' http://www1.eere.energy.gov/femp/pdfs/ashb10.pdf. FEMP also provides guidance on the life-cycle cost 
requirements of Executive Order 13123 at http://www1.eere.energy.gov/femp/information/download_blcc.html.
ENERGY STAR Buildings--U.S. Environmental Protection Agency and U.S. 
Department of Energy http://www.energystar.gov/index.cfm?c=new_bldg_design.bus_target_finder (non-residential buildings)
    ENERGY STAR is a Government-backed program helping businesses and 
individuals protect the environment through superior energy efficiency. 
The benchmarking tool and other information at the ENERGY STAR Target 
Finder Web site can be useful in determining an annual energy target 
for building design and computer simulations, evaluating cost-
effectiveness of efficiency measures, and tracking a building's actual 
energy performance after construction.\1\
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    \1\ The use of EPA's Target Finder tool during the design 
process of applicable new Federal buildings helps ensure that 
buildings are on a pathway to meet the existing building Federal 
Sustainable Building Guiding Principle (Energy Efficiency: Option 
1), which is to receive an ENERGY STAR score of 75 or higher in 
EPA's Portfolio Manager.
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Commercial Building Initiative--U.S. DOE Building Technologies Program 
http://www1.eere.energy.gov/buildings/commercial_initiative/
    A collection of design approaches, tools, technologies and case 
studies focused on high performance buildings that achieve savings of 
30 percent to 50 percent better than generally accepted good practice. 
One specific resource on the Commercial Building Initiative site are 
the Fifty Percent Technical Support Documents available at http://apps1.eere.energy.gov/buildings/commercial_initiative/resource_database/ (enter ``50% technical support document'' in search window). 
This is a set of technical support documents for users who wish to go 
beyond Standard 90.1. The technical support documents are targeted at 
50% better than ASHRAE Standard 90.1-2004 (which translates to 
approximately 20% better than Standard 90.1-2010).
Building Energy Software Tools--U.S. DOE Building Technologies Program 
http://apps1.eere.energy.gov/buildings/tools_directory/
    This directory provides information on building software tools for 
evaluation energy efficiency, renewable energy, and sustainability in 
buildings.
ASHRAE Standard 90.1-2010--ASHRAE
http://www.techstreet.com/standards/ashrae/90_1_2010_i_p_?product_id=1739526

    The baseline energy efficiency standard for commercial and multi-
family high-rise buildings is ANSI/ASHRAE/IESNA Standard 90.1-2010. 
This link also contains a link to a read-only version of Standard 90.1-
2010 under the Preview button.
Whole Building Design Guide--National Institute of Building Sciences
http://www.wbdg.org

    A portal providing one-stop access to up-to-date information on a 
wide range of building-related guidance, criteria and technology from a 
``whole buildings'' perspective.
Advanced Energy Design Guides--ASHRAE
http://www.ashrae.org/publications/page/aedg50pct

    A set of design guides for users who wish to go beyond Standard 
90.1. The design guides are targeted at 50 percent better than ASHRAE 
Standard 90.1-2004 (which translates to approximately 20 percent better 
than Standard 90.1-2010). The design guides are available for free 
download.
Advanced Buildings\TM\ Core Performance Guide\TM\--New Buildings 
Institute
http://www.newbuildings.org/advanced-design/advanced-buildings

    A set of guidelines for the design, construction, and operation of 
new and renovated nonresidential buildings targeted at 30 percent 
better than ASHRAE Standard 90.1-2004 (which translates to 
approximately the same level as ASHRAE Standard 90.1-2010).
Labs for the 21st Century--U.S. EPA and U.S. DOE
http://www.labs21century.gov/

    A Web site focused on improving the energy efficiency and 
environmental performance of laboratory space. This site includes 
training and educational resources and design tools focused on 
laboratories.

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VI. Regulatory Analysis

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

    Today's final rule is a ``significant regulatory action'' under 
Executive Order 12866, ``Regulatory Planning and Review.'' 58 FR 51735 
(October 4, 1993). Accordingly, today's action was subject to review by 
the Office of Information and Regulatory Affairs in the Office of 
Management and Budget (OMB). OMB has completed its review. As discussed 
previously in this notice, DOE is required to determine, based on the 
cost-effectiveness, whether the standards for Federal buildings should 
be updated to reflect an amendment to the ASHRAE standard. As stated 
above DOE complied with the statutory language by relying on the cost-
effectiveness criteria used in the ASHRAE development process. The 
ASHARE development process used a scalar ratio for cost-effectiveness 
based on ASTM E917.
    The Environmental Assessment for this rulemaking identified a rate 
of new Federal commercial construction of 22 million square feet per 
year with a distribution of building types as shown in Table 1. As 
described in the referenced Environmental Assessment, the distribution 
of building types is based on the 2007 and 2008 GSA Federal real 
property reports. Table 1 also shows the prototype buildings used for 
computer simulations utilized for estimating energy use in each 
building type. DOE derived these prototype buildings from 16 building 
types in 17 climate zones using its Commercial Reference Building 
models.\2\
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    \2\ DOE's prototype buildings are described at http://www.energycodes.gov/development/commercial/90.1_models.
[GRAPHIC] [TIFF OMITTED] TR09JY13.003

    DOE has preliminarily determined incremental cost and the life-
cycle cost net savings information for the building types and climate 
zones analyzed. This information is shown in Tables 2 and 3.

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[GRAPHIC] [TIFF OMITTED] TR09JY13.004

     
    Data from Table 1 and Table 2 were used to calculate preliminary 
values for overall incremental first cost of construction for Federal 
commercial and high-rise multi-family residential buildings. DOE 
calculated the incremental first cost of the Federal building types 
based on the DOE prototypes shown in bold font in Table 1. DOE then 
calculated the weighted average incremental cost for Federal building 
types based on the office, education, and dorm/barracks building types 
which represent an estimated 81% of new Federal construction. This 
weighted incremental cost was assigned to the warehouse and hospital 
building types and a total weighted incremental cost was calculated by 
multiplying the incremental cost for each Federal building type by the 
fraction of Federal construction shown in Table 1. For warehouses and 
hospitals DOE considered costs to be equivalent to the weighted cost 
for offices, education, and dorm/barracks.\5\
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    \3\ Briggs, R.S., R.G. Lucas, and Z.T. Taylor. 2003. ``Climate 
classification for building energy codes and standards: Part 1--
Development Process.'' ASHRAE Transactions 109(1): 109:121. American 
Society of Heating, Refrigerating and Air-Conditioning Engineers. 
Atlanta, Georgia. The 90.1-2010 climate zone map may be viewed as 
Figure B.1 of the online version of Standard 90.1-2010 at http://openpub.realread.com/rrserver/browser?title=/ASHRAE_1/ashrae_90_1_2010_IP_1024.
    \4\ In this particular transition from 90.1-2007 to 90.1-2010, 
the cost reduction was mainly because of smaller and less expensive 
HVAC equipment since the building load had decreased. This cost 
reduction is part of the first cost calculation. Note that in 
addition to reduced equipment costs, there is reduced ductwork or 
piping costs as well.
    \5\ There is no data for those years for warehouses or 
hospitals. It could be expected that costs to a warehouses would be 
less since it is a simpler building. We assumed both the warehouse 
and the hospital were the ``average'' of the data we did have. And 
so, the warehouse value is likely higher than it might have been and 
the hospital value is likely lower than it might have been had there 
been data available.
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    The national total incremental first cost for building types was 
developed by multiplying the average (across climate zones) incremental 
first cost of the prototypes (determined from the 90.1 cost-
effectiveness analysis) by the fraction of the Federal sector 
construction volume shown in Table 1.\6\ The resulting building type 
incremental first costs were then summed together to determine an 
overall incremental first cost for the entire Federal commercial and 
high-rise multi-family residential buildings sector. The resulting 
preliminary total incremental first cost estimate is $12 million per 
year. The average first cost increase is $0.54 per square foot.
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    \6\ For the Federal office building, the small and large office 
prototype first costs were averaged. For the Federal education 
building, the primary school prototype first cost was used. For the 
Federal dorm/barracks building type, the small hotel and mid-rise 
apartment prototype first costs were averaged.
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    Turning to LCC net savings, Table 3 shows preliminary annual LCC 
net savings by prototype buildings. For LCC net savings, a similar 
approach to that used for incremental first cost was used. That is, the 
national total annual LCC net savings \7\ for building types was 
developed by multiplying the average (across climate zones) LCC net 
savings (determined from the 90.1 cost-effectiveness analysis) by the 
fraction of the federal sector construction volume shown in Table 1.\8\ 
The results of the

[[Page 40950]]

building type LCC net savings were then summed together to determine 
the overall annual LCC net savings for the entire Federal commercial 
and high-rise multi-family buildings sector. The resulting total LCC 
net savings for 22 million square feet of annual construction was 
estimated to be $58 million. The average life-cycle cost net savings in 
year one was estimated to be $2.64 per square foot. Note the annual LCC 
savings are for one year of Federal commercial and high-rise multi-
family residential construction and that those savings would accumulate 
over the LCC evaluation period. For the purpose of this analysis DOE 
relied on a 30-year period.
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    \7\ The energy costs used were the national average energy costs 
used by ASHRAE in the development of Standard 90.1-2010. To quote 
the cost-effectiveness analysis report ``Energy rates used to 
calculate the energy costs from the modeled energy usage are $1.22/
therm and $0.0939/kWh. These rates were used for 90.1-2010 energy 
analysis, and derived from the US DOE Energy Information 
Administration (EIA 2006), as reported in Energy and Cost Savings 
Analysis of ASHRAE Standard 90.1-2010 the 30% Goal. These are the 
values approved by the SSPC 90.1 for cost-effectiveness for the 
evaluation of individual addenda during the development of 90.1-
2010.''
    \8\ For the Federal office building, the small and large office 
prototype life cycle costs were averaged. For the Federal education 
building, the primary school prototype life cycle cost was used. For 
the Federal dorm/barracks building type, the small hotel and mid-
rise apartment prototype life cycle costs were averaged.
[GRAPHIC] [TIFF OMITTED] TR09JY13.005

B. Administrative Procedure Act

    DOE notes that the determination regarding the updated voluntary 
consensus code was subject to notice and comment in evaluating the 
voluntary consensus codes in the context of State building codes. See 
76 FR 43298 (July 20, 2011) for the preliminary determination and 76 FR 
64904 (October 19, 2011) for the final determination. The 
determinations made in the context of the State codes are equally 
applicable in the context of Federal buildings. DOE finds that 
providing notice and comment on the determinations again in the context 
of Federal buildings would be unnecessary. The fact that the voluntary 
consensus codes apply to Federal buildings as opposed to the general 
building stock does not require a different evaluation of energy 
efficiency and cost-effectiveness. Additionally, DOE notes that today's 
rule, amending standards on energy efficiency performance standards for 
the design and construction of new Federal buildings, is a rule 
relating to public property, and therefore, is not subject to the 
rulemaking requirements of the Administrative Procedure Act, including 
the requirement to publish a notice of proposed rulemaking. (See, 5 
U.S.C. 553(a)(2))

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, Proper Consideration of Small Entities in 
Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process, 68 FR 7990. The Department 
has made its procedures and policies available on the Office of General 
Counsel's Web site: http://energy.gov/gc/office-general-counsel.
    DOE has determined that a notice of proposed rulemaking is not 
required by 5 U.S.C. 553 or any other law for issuance of this rule. As 
such the analytical requirements of the Regulatory Flexibility Act do 
not apply.

D. Review Under the Paperwork Reduction Act of 1995

    This rulemaking will impose no new information or 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.)

E. Review Under the National Environmental Policy Act of 1969

    The Department prepared an Environmental Assessment (EA) (DOE/EA-
1918) entitled, ``Environmental Assessment for Final Rule, 10 CFR part 
433, `Energy Efficiency Standards for New Federal Commercial and Multi-
Family High-Rise Residential Buildings,' Baseline Standards Update,''

[[Page 40951]]

pursuant to the Council on Environmental Quality's (CEQ) Regulations 
for Implementing the Procedural Provisions of the National 
Environmental Policy Act (40 CFR parts 1500-1508), the National 
Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et 
seq.), and DOE's NEPA Implementing Procedures (10 CFR part 1021).
    The EA addresses the possible incremental environmental effects 
attributable to the application of the final rule. The only anticipated 
impact would be a decrease in outdoor air pollutants resulting from 
decreased fossil fuel burning for energy use in Federal buildings. 
Therefore, DOE has issued a Finding of No Significant Impact (FONSI), 
pursuant to NEPA, the regulations of the Council on Environmental 
Quality (40 CFR parts 1500-1508), and DOE's regulations for compliance 
with NEPA (10 CFR part 1021).
    To identify the potential environmental impacts that may result 
from implementing the final rule on new Federal commercial buildings, 
DOE compared the final rule with the ``no-action alternative'' of using 
the current Federal standards. This comparison essentially compares the 
baseline standards--ANSI/ASHRAE/IESNA Standards 90.1-2007 and 90.1-2010 
for Federal commercial and multi-family high-rise residential 
buildings. This comparison is identical to that undertaken by DOE in 
its determinations of energy savings of those standards and codes. For 
the purposes of this environmental assessment, DOE also investigated 
the impact of buildings achieving energy consumption below Standard 
90.1-2010 in increments of 10 percent, up to 50 percent.
    The 2011 Annual Energy Outlook (2011 AEO) projects approximately 
2.2 billion square feet of commercial floor space will be added 
annually to the U.S. building stock (http://www.eia.gov/forecasts/aeo/
). Since Federal buildings represent about 1 percent of total U.S. 
building stock, about 22 million square feet of new Federal buildings 
are added each year. Federal multi-family high-rise residential 
buildings are rare. Table 4 summarizes the estimated emissions impacts 
for each of the alternatives for the Federal building energy efficiency 
standard.\9\ It shows cumulative changes in emissions for 
CO2, NOX, and Hg for a thirty year period for 
each of the alternatives. Cumulative CO2, NOX, 
and Hg emissions are reduced compared to the reference case for all 
alternatives. For comparison, the cumulative power sector emissions in 
the 2011 AEO reference case, over the period 2014 through 2043, are 
74,571 Million metric tons for CO2, 61,625 thousand metric 
tons for NOx, and 917 metric tons for Hg.
---------------------------------------------------------------------------

    \9\ The alternatives and the methodology used to determine these 
emissions impacts may be found in the Environmental Assessment (EA) 
(DOE/EA-1918) entitled, ``Environmental Assessment for Final Rule, 
10 CFR part 433, `Energy Efficiency Standards for New Federal 
Commercial and Multi-Family High-Rise Residential Buildings,' 
Baseline Standards Update''.

             Table 4--Air Emissions Reductions in Metric Tons (30-Years of Commercial Construction)
----------------------------------------------------------------------------------------------------------------
                                           Final rule--code or                       Nitrogen
   Baseline (no-action alternative)             standard          Carbon dioxide      oxides          Mercury
----------------------------------------------------------------------------------------------------------------
ASHRAE 90.1-2007......................  90.1-2010...............      89,888,200          91,851          1.2795
                                        10% below 90.1-2010.....     126,091,100         128,857          1.7950
                                        20% below 90.1-2010.....     162,293,900         165,864          2.3105
                                        30% below 90.1-2010.....     198,496,800         202,870          2.8260
                                        40% below 90.1-2010.....     234,699,600         239,876          3.3415
                                        50% below 90.1-2010.....     270,902,400         276,882          3.8570
30% Below ASHRAE 90.1-2007............  30% below 90.1-2010.....      62,921,800          64,296          0.8957
                                        40% below 90.1-2010.....      99,124,600         101,302          1.4112
                                        50% below 90.1-2010.....     135,327,500         138,308          1.9267
----------------------------------------------------------------------------------------------------------------

F. Review under Executive Order 13132, ``Federalism''

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

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

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

[[Page 40952]]

more of them. DOE has completed the required review and determined 
that, to the extent permitted by law, this rule meets the relevant 
standards of Executive Order 12988.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and tribal governments and the 
private sector. For a proposed regulatory action likely to result in a 
rule that may cause the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more in any one year (adjusted annually for inflation), section 202 
of UMRA requires a Federal agency to publish a written statement that 
estimates the resulting costs, benefits, and other effects on the 
national economy. (2 U.S.C. 1532(a) and (b)) The UMRA also requires a 
Federal agency to develop an effective process to permit timely input 
by elected officers of State, local, and tribal governments on a 
proposed ``significant intergovernmental mandate'' and requires an 
agency plan for giving notice and opportunity for timely input to 
potentially affected small governments before establishing any 
requirements that might significantly or uniquely affect small 
governments. On March 18, 1997, DOE published a statement of policy on 
its process for intergovernmental consultation under UMRA (62 FR 12820) 
(also available at http://energy.gov/gc/office-general-counsel). This 
final rule contains neither an intergovernmental mandate nor a mandate 
that may result in the expenditure of $100 million or more in any year 
by State, local, and tribal governments, in the aggregate, or by the 
private sector, so these requirements under the Unfunded Mandates 
Reform Act do not apply.

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

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

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

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

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

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

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

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgated or is expected to lead to 
promulgation of a final rule, and that: (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.

M. Review Under Section 32 of the Federal Energy Administration Act of 
1974

    Under section 301 of the Department of Energy Organization Act 
(Pub. L. 95-91), DOE must comply with section 32 of the Federal Energy 
Administration Act of 1974 (Pub. L. 93-275), as amended by the Federal 
Energy Administration Authorization Act of 1977 (Pub. L. 95-70). (15 
U.S.C. 788) Section 32 provides that where a proposed rule authorizes 
or requires use of commercial standards, the NOPR must inform the 
public of the use and background of such standards. In addition, 
section 32(c) requires DOE to consult with the Department of Justice 
(DOJ) and the Federal Trade Commission (FTC) concerning the impact of 
the commercial or industry standards on competition.
    Although section 32 specifically refers to the proposed rule state, 
DOE is meeting these requirements at the final rule stage because there 
was no proposed rule for today's action. Today's final rule 
incorporates testing methods contained in the following commercial 
standard: ANSI/ASHRAE/IESNA Standard 90.1-2010, Energy Standard for 
Buildings Except Low-Rise Residential Buildings, 2010, American Society 
of Heating Refrigerating and Air-Conditioning Engineers, Inc., ISSN 
1041-2336.
    DOE has evaluated these standards and is unable to conclude whether 
they fully comply with the requirements of section 32(b) of the FEAA 
(i.e. whether they were developed in a manner that fully provides for 
public participation, comment, and review.) DOE has consulted with both 
the Attorney General and the Chairman of the FTC about the impact on 
competition of using the methods contained in these standards and has 
received no comments objecting to their use.

VII. Congressional Notification

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

List of Subjects in 10 CFR Part 433

    Buildings and facilities, Energy conservation, Engineers, Federal

[[Page 40953]]

buildings and facilities, Housing, Incorporation by reference.

    Issued in Washington, DC, on June 28, 2013.
David T. Danielson,
Assistant Secretary, Energy Efficiency and Renewable Energy.

    For the reasons set forth in the preamble, the Department of Energy 
amends chapter II of title 10 of the Code of Federal Regulations as set 
forth below:

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

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

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

0
2. Amend Sec.  433.2 by adding in alphabetical order the definition of 
``ASHRAE Baseline Building 2010'' to read as follows:


Sec.  433.2  Definitions.

* * * * *
    ASHRAE Baseline Building 2010 means a building that is otherwise 
identical to the proposed building but is designed to meet, but not 
exceed, the energy efficiency specifications in ANSI/ASHRAE/IESNA 
Standard 90.1-2010, Energy Standard for Buildings Except Low-Rise 
Residential Buildings, 2010 (incorporated by reference, see Sec.  
433.3).
* * * * *

0
3. Amend Sec.  433.3 by adding paragraph (b)(3) to read as follows:


Sec.  433.3  Materials incorporated by reference.

* * * * *
    (b) * * *
    (3) ANSI/ASHRAE/IESNA 90.1-2010, (``ASHRAE 90.1-2010''), Energy 
Standard for Buildings Except Low-Rise Residential Buildings, I-P 
Edition, Copyright 2010, IBR approved for Sec. Sec.  433.2, 433.4, 
433.5.

0
4. Section 433.4 is amended by revising paragraph (a)(2) introductory 
text and adding paragraph (a)(3) to read as follows:


Sec.  433.4  Energy efficiency performance standard.

    (a) * * *
    (2) All Federal agencies shall design new Federal buildings that 
are commercial and multi-family high-rise residential buildings, for 
which design for construction began on or after August 10, 2012, but 
before July 9, 2014, to:
* * * * *
    (3) All Federal agencies shall design new Federal buildings that 
are commercial and multi-family high-rise residential buildings, for 
which design for construction began on or after July 9, 2014, to:
    (i) Meet ASHRAE 90.1-2010, (incorporated by reference, see Sec.  
433.3); and
    (ii) If life-cycle cost-effective, achieve energy consumption 
levels, calculated consistent with paragraph (b) of this section, that 
are at least 30 percent below the levels of the ASHRAE Baseline 
Building 2010.
* * * * *

0
5. Section 433.5 is amended by revising paragraph (a)(2) and adding 
paragraph (a)(3) to read as follows:


Sec.  433.5  Performance level determination.

    (a) * * *
    (2) For Federal buildings for which design for construction began 
on or after August 10, 2012, but before July 9, 2014, each Federal 
agency shall determine energy consumption levels for both the ASHRAE 
Baseline Building 2007 and proposed building by using the Performance 
Rating Method found in Appendix G of ASHRAE 90.1-2007 (incorporated by 
reference, see Sec.  433.3), except the formula for calculating the 
Performance Rating in paragraph G1.2 shall read as follows:
    Percentage improvement = 100 x ((Baseline building consumption - 
Receptacle and process loads) - (Proposed building consumption - 
Receptacle and process loads))/(Baseline building consumption - 
Receptacle and process loads) (which simplifies as follows):
    Percentage improvement = 100 x (Baseline building consumption - 
Proposed building consumption)/(Baseline building consumption - 
Receptacle and process loads).
    (3) For Federal buildings for which design for construction began 
on or after July 9, 2014, each Federal agency shall determine energy 
consumption levels for both the ASHRAE Baseline Building 2010 and 
proposed building by using the Performance Rating Method found in 
Appendix G of ASHRAE 90.1-2010 (incorporated by reference, see Sec.  
433.3), except the formula for calculating the Performance Rating in 
paragraph G1.2 shall read as follows:
    Percentage improvement = 100 x ((Baseline building consumption - 
Receptacle and process loads) - (Proposed building consumption - 
Receptacle and process loads))/(Baseline building consumption - 
Receptacle and process loads) (which simplifies as follows):
    Percentage improvement = 100 x (Baseline building consumption-
Proposed building consumption)/(Baseline building consumption - 
Receptacle and process loads).
* * * * *
[FR Doc. 2013-16297 Filed 7-8-13; 8:45 am]
BILLING CODE 6450-01-P