This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

63404 

Vol. 75, No. 199 

Friday, October 15, 2010 

DEPARTMENT OF ENERGY 

10 CFR Parts 433 and 435 

[Docket No. EERE–2010–BT–STD–0031] 

RIN 1904–AB96 

Fossil Fuel-Generated Energy 

Consumption Reduction for New 

Federal Buildings and Major 

Renovations of 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 to implement 

provisions of the Energy Conservation 

and Production Act, as amended by the 

Energy Independence and Security Act 

of 2007 that require DOE to establish 

revised performance standards for the 

construction of all new Federal 

buildings, including commercial 

buildings, multi-family high-rise 

residential buildings and low-rise 

residential buildings. The provisions in 

this notice of proposed rulemaking 

specifically address the reduction of 

fossil fuel-generated energy 

consumption in new Federal buildings 

and Federal buildings undergoing major 

renovations. This proposed rule also 

addresses how agencies other than the 

General Services Administration (GSA) 

may petition DOE for a downward 

adjustment of the requirements if they 

believe meeting the full fossil fuelgenerated energy consumption 

reduction level is technically 

impracticable in light of the specified 

functional needs for that building. 

DATES: Public comments on this 

proposed rule will be accepted until 

December 14, 2010. DOE will hold a 

public meeting on Friday, November 12, 

2010, from 9 a.m. to 5 p.m., in 

Washington, DC. Interested persons who 

wish to speak at the public meeting 

should e-mail or phone Ms. Brenda 

Edwards by 4:30 p.m., Friday, October 

29, 2010. DOE must receive a signed 

original and an electronic copy of 

statements to be given at the public 

meeting before 4 p.m., Friday, 

November 5, 2010. Additionally, DOE 

plans to conduct the public meeting via 

webinar. You can attend the public 

meeting via webinar, and registration 

information, participant instructions, 

and information about the capabilities 

available to webinar participants will be 

published on the Building Energy Codes 

Program’s Web site http:// 

www.energycodes.gov/events/doe/ 

fossil_fuels.stm, and/or on the Federal 

Energy Management Program’s Web site 

http://www1.eere.energy.gov/femp/ 

regulations/notices_rules.html. 

Participants are responsible for ensuring 

their systems are compatible with the 

webinar software. 

DOE will accept comments, data, and 

information regarding this notice of 

proposed rulemaking (NOPR) before and 

after the public meeting, but no later 

than December 14, 2010. If you submit 

information that you believe to be 

exempt by law from public disclosure, 

you should submit one complete copy, 

as well as one copy from which the 

information claimed to be exempt by 

law from public disclosure has been 

deleted. DOE is responsible for the final 

determination with regard to disclosure 

or nondisclosure of the information and 

for treating it accordingly under the 

DOE Freedom of Information 

regulations at 10 CFR 1004.11. 

ADDRESSES: You may submit comments, 

identified by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: FossilFuelReduct-2010- 

STD-0031@ee.doe.gov. Include EERE– 

2010–BT–STD–0031 and/or RIN 1904– 

AB96 in the subject line of the message. 

• Postal Mail: Ms. Brenda Edwards, 

U.S. Department of Energy, Building 

Technologies Program, Mailstop EE–2J, 

Fossil Fuel-Generated Energy 

Consumption Reduction for New 

Federal Buildings and Major 

Renovations of Federal Buildings EERE– 

2010–BT–STD–0031 and/or RIN 1904– 

AB96, 1000 Independence Avenue, SW., 

Washington, DC 20585–0121. 

Telephone: (202) 586–9138. Please 

submit one signed paper original. Due to 

the potential delays in DOE’s receipt 

and processing of mail sent through the 

U.S. Postal Service, DOE encourages 

respondents to submit comments 

electronically to ensure timely receipt. 

• Hand Delivery/Courier: Brenda 

Edwards, U.S. Department of Energy, 

Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 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 Brenda Edwards at (202) 

586–2945 for additional information 

regarding visiting the Resource Room. 

FOR FURTHER INFORMATION CONTACT: 

Margo Appel, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121, (202) 586– 

9495, e-mail: margo.appel@hq.doe.gov, 

or Ami Grace-Tardy, U.S. Department of 

Energy, Office of the General Counsel, 

Forrestal Building, GC–71, 1000 

Independence Avenue, SW., 

Washington, DC 20585, (202) 586–5709, 

e-mail: ami.grace-tardy@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of Proposed Rule 

III. Reference Resources 

IV. Regulatory Review 

V. Approval by the Office of the Secretary 

I. Background 

Section 305 of the Energy 

Conservation and Production Act 

(ECPA) established energy conservation 

requirements for Federal buildings (42 

U.S.C. 6834). Section 433(a) of the 

Energy Independence and Security Act 

of 2007 (Pub. L. 110–140) (EISA) 

amended section 305 of ECPA and 

directed that DOE establish regulations 

that revised Federal building energy 

efficiency performance standards to 

require that ‘‘[f]or new Federal buildings 

and Federal buildings undergoing major 

renovations, with respect to which the 

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Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 63405 

1Under 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. 

Administrator of General Services is 

required to transmit a prospectus to 

Congress under section 3307 of Title 40, 

in the case of public buildings (as 

defined in section 3301 of Title 40), or 

of at least $2,500,000 in costs adjusted 

annually for inflation for other 

buildings,’’ the ‘‘buildings shall be 

designed so that the fossil fuelgenerated energy consumption of the 

buildings is reduced as compared with 

such energy consumption by a similar 

building in fiscal year 2003 (as 

measured by Commercial Buildings 

Energy Consumption Survey or 

Residential Energy Consumption Survey 

data from the Energy Information 

Agency), by’’ specific graduated 

percentages ranging from 55 percent to 

100 percent over a specified period of 

time beginning in fiscal year 2010 and 

ending in fiscal year 2030 (42 U.S.C. 

6834(a)(3)(D)(i)(I)). 

In addition, ECPA as amended by 

EISA permits DOE upon petition by an 

agency subject to the statutory 

requirements, to adjust the applicable 

numeric reduction requirement 

‘‘downward with respect to a specific 

building, if the head of the agency 

designing the building certifies in 

writing that meeting such requirement 

would be technically impracticable in 

light of the agency’s specified functional 

needs for that building and’’ DOE 

concurs with the agency’s conclusion 

(42 U.S.C. 6834(a)(3)(D)(i)(II)). ECPA as 

amended by EISA further directs that 

such an adjustment does not apply to 

GSA (42 U.S.C. 6834(a)(3)(D)(i)(II)). 

Today’s proposed rule on fossil fuelgenerated energy consumption 

reduction proposes to amend certain 

portions of 10 CFR parts 433 and 435, 

the regulations governing energy 

efficiency in Federal buildings. 

Additionally, DOE published a 

proposed rule on sustainable design 

standards for new Federal buildings on 

May 28, 2010 (75 FR 29933), which also 

proposes to amend certain portions of 

10 CFR parts 433 and 435. DOE has 

already addressed some elements of 

today’s proposed rule in the sustainable 

design proposed rule. Specifically, 

overlapping elements of both proposed 

rules are the definitions of ‘‘new Federal 

building’’ and ‘‘major renovation.’’ The 

proposed regulatory text in today’s 

document would amend the current 

regulatory text, without consideration of 

amendments that may result from the 

sustainable design rulemaking. If and 

when these two rulemakings are 

finalized, DOE will coordinate the final 

regulatory text between the two 

rulemakings. 

In addition, there are a number of 

statutory provisions, regulations, 

Executive Orders, and memorandums of 

understanding that govern the 

construction of new Federal buildings 

or major renovations to Federal 

buildings. These include, but are not 

limited to, Executive Order 13514 (74 

FR 52117); sections 323, 433, 434, and 

523 of the Energy Independence and 

Security Act 2007 (Pub. L. 110–140); 

Executive Order 13423 (72 FR 3919); 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. If 

made final, the proposed rule would not 

supersede other applicable legal 

requirements for new Federal buildings 

or major renovations to Federal 

buildings. 

II. Discussion of Proposed Rule 

A. Overview 

The proposed rule would establish 

revised Federal building energy 

efficiency performance standards for 

achieving the reductions in fossil fuelgenerated energy consumption as listed 

in ECPA as amended by EISA (42 U.S.C. 

6834(a)(3)(D)(i)(I)). The proposed rule 

would also clarify which building types 

are covered by the standards and which 

building types are excluded. The 

proposed rule establishes a 

methodology for compliance, including 

calculation of the maximum allowable 

fossil fuel-generated energy 

consumption based on building type, 

and how fossil fuel consumption 

resulting from electricity usage should 

be considered. Today’s proposed rule 

would also establish procedures for 

agencies to petition DOE for downward 

adjustment of the applicable percentage 

reduction requirement. 

B. Scope of Proposed Rule 

Section 305(a)(3) of ECPA as amended 

directs DOE to establish regulations that 

require fossil fuel-generated energy 

consumption reductions be applied to a 

subset of new Federal buildings and 

Federal buildings undergoing major 

renovation. (42 U.S.C. 

6834(a)(3)(D)(i)(I)) 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. 3301,1 for which the 

Administrator of General Services is 

required to transmit a prospectus to 

Congress under U.S.C. Title 40, section 

3307, or 

• 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). 

DOE notes that the definition of 

‘‘Federal building’’ was changed in 

statute, and DOE is addressing that 

definition and the definition of ‘‘new 

Federal building’’ in a separate 

rulemaking. (42 U.S.C. 6832(6)) The 

statute now defines ‘‘Federal building’’ 

to mean any building to be constructed 

by, or for the use of, any Federal agency. 

In the separate rulemaking DOE is 

proposing that the term include 

buildings built for the purpose of being 

leased by a Federal agency, and 

privatized military housing. 

For the purpose of this rulemaking, 

DOE would consider public buildings to 

include buildings leased by a Federal 

agency. DOE recognizes, however, that a 

Federal agency may not have control 

over the design of a renovation of a 

leased building in which the agency is 

a tenant. For the purpose of this 

rulemaking, DOE considers major 

renovations to be limited to those 

renovations for which a Federal agency 

has significant control over the 

renovation design. 

Additionally, DOE would consider 

construction project costs to be those 

costs for which the agency currently has 

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63406 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

funding. That is, the $2,500,000 

threshold would not include renovation 

activities that potentially could occur in 

future fiscal years. Generally, 

construction project costs include 

design, permitting, construction 

(materials and labor), and 

commissioning costs. Land and legal 

costs would generally not be included. 

DOE requests comment on this 

definition of construction costs. 

DOE is proposing that Federal 

agencies would be required to comply 

with the final rule starting one year from 

the date of the final rule. As proposed, 

covered buildings for which design for 

construction begins on or after that 

effective date must meet the 

requirements established in this rule. 

The one year period would provide 

Federal agencies sufficient time to 

revise new building designs prior to the 

start of construction and would be 

consistent with that the lead time 

provided for the energy efficiency 

performance standards for the 

construction of all new Federal 

buildings. 

C. Fiscal Year Percentage Reductions 

Section 305 of ECPA as amended by 

EISA mandates that buildings subject to 

this proposed rule be designed to reduce 

fossil fuel-generated energy 

consumption by 55 percent beginning in 

fiscal year 2010, 65 percent beginning in 

fiscal year 2015, 80 percent beginning in 

fiscal year 2020, 90 percent beginning in 

fiscal year 2025, and 100 percent 

beginning in fiscal year 2030 (42 U.S.C. 

6834(a)(3)(D)(i)(I)). DOE interprets this 

table in the statute to mean that any 

building whose design for construction 

begins in the fiscal year specified in the 

statute must be designed to achieve the 

fossil fuel-generated energy 

consumption reductions for that fiscal 

year. DOE welcomes comments on this 

interpretation. DOE interprets the fiscal 

years listed in the statute as spans of 

years for which the fossil fuel-generated 

energy consumption reductions would 

apply. For instance, the applicable 

percentage reduction for fiscal year 2010 

would apply for the time span of fiscal 

year 2010 through fiscal year 2014. The 

applicable percentage reduction for 

fiscal year 2015 would apply for the 

time span of fiscal year 2015 through 

fiscal year 2019, and so on. DOE 

welcomes comments on this 

interpretation. Congress directed DOE to 

establish a rule addressing these fossil 

fuel-generated energy consumption 

reductions beginning in fiscal year 2010. 

DOE believes that the fossil fuelgenerated energy consumption 

reductions do not apply to Federal 

agencies until the regulations 

implementing the reductions are 

finalized. Today’s proposed rule would 

apply to buildings for which design for 

construction begins at least one year 

after the final rule is issued. 

D. Methodology To Determine 

Compliance 

Section 305 of ECPA as amended by 

EISA in part requires that the buildings 

that are the subject of today’s proposed 

rule be designed so that the fossil fuelgenerated energy consumption of the 

buildings is reduced, as compared with 

such energy consumption by a similar 

building in fiscal year 2003 (as 

measured by Commercial Buildings 

Energy Consumption Survey or 

Residential Energy Consumption Survey 

data from the Energy Information 

Agency), by the percentages specified in 

Section 305 of ECPA. (42 U.S.C. 

6834(a)(3)(D)(i)(I)). 

Determine Baseline Fossil FuelGenerated Energy Consumption of 

Similar Building 

To determine whether a building 

meets the numeric fossil fuel reduction 

requirements specified by ECPA as 

amended by EISA, it is necessary to 

establish a baseline against which the 

reductions can be measured. For 

purposes of this proposed rulemaking, 

the statute establishes the baseline to be 

energy consumption data from 

Commercial Buildings Energy 

Consumption Survey (CBECS) for 

commercial buildings and Residential 

Buildings Energy Consumption Survey 

(RECS) for residential buildings. The 

CBECS and RECS data, which can be 

found at http://www.eia.doe.gov/emeu/ 

cbecs/contents.html and at http:// 

www.eia.doe.gov/emeu/recs/ 

contents.html, are based on actual 

reported energy use over a large sample 

of buildings, normalized for size to 

thousands of British thermal units per 

square foot of floor space (kBtu/ft2). 

ECPA as amended by EISA requires 

that the buildings subject to this 

proposed rule be designed so that the 

fossil fuel-generated energy 

consumption of the buildings is reduced 

as compared with energy consumption 

data of a similar building in fiscal year 

2003 as measured by CBECS or RECS 

(42 U.S.C. 6834(a)(3)(D)(i)(I)). The 

limited number of buildings surveyed 

by CBECS and RECS data does not 

always allow for a direct estimate of 

building energy use by climate zone and 

building type because there are only a 

few surveyed buildings that fit into 

some building type/climate zone 

groups. DOE believes, however, that a 

climate adjustment is necessary to 

provide reasonable baselines. Therefore, 

DOE is developing fossil fuel-generated 

energy requirements based on building 

type using CBECS or RECS data, and 

then applying a climate adjustment 

using the climate zones defined in the 

baseline energy efficiency standards at 

10 CFR parts 433 and 435. This ensures 

that new Federal buildings will have to 

achieve reductions commensurate to a 

baseline appropriate for their respective 

climate zone, rather than to a national 

average that does not account for the 

impacts of the local climate on the 

energy use of a specific building. DOE 

solicits comment on the best technique 

for calculating the climate adjustment 

for the different building types. 

Note that ECPA as amended by EISA 

makes no distinction between fossil 

fuels such as natural gas, petroleum, 

and coal for purposes of the required 

fossil fuel-generated reductions 

addressed in today’s rule. DOE 

recognizes that some fossil fuels have 

higher CO2 emission factors than other 

fossil fuels, with coal being the highest 

and natural gas being the lowest. While 

the statute does not specifically direct 

DOE to consider variation in fossil fuels 

for purposes of this rulemaking, it does 

not prohibit DOE from doing so. With 

this in mind, DOE seeks public 

comment on whether all fossil fuels 

should be treated equally or whether 

each should be treated differently based 

on CO2 emission factors or some other 

factor. 

Commercial Buildings Baseline—CBECS 

ECPA as amended by EISA requires 

that the fossil fuel-generated energy 

consumption of new Federal buildings 

and Federal buildings undergoing major 

renovations be compared to that of 

similar buildings in fiscal year 2003 as 

measured by CBECS or RECS data (42 

U.S.C. 6834(a)(3)(D)(i)(I)). The most 

recent available CBECS data is from a 

CBECS survey that was conducted in 

2003. 

As discussed in the previous section, 

for purposes of establishing a baseline, 

DOE is developing a baseline based on 

building type, as defined by CBECS, 

with a climate adjustment as discussed 

previously. In the CBECS data, Column 

G of the following table, http:// 

www.eia.doe.gov/emeu/cbecs/ 

cbecs2003/detailed_tables_2003/ 

2003set9/2003excel/c3.xls, lists the 

energy use per square foot of various 

groups of buildings. Note that in CBECS 

documents, the phrases building type 

and principal building activity are used 

interchangeably. For the sake of 

consistency, this document only uses 

the phrase building type. 

It should be noted that DOE has 

commissioned an analysis of the 2003 

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CBECS data by building type and 

climate zone, and the results may be 

found in the report Methodology for 

Modeling Building Energy Performance 

Across the Commercial Sector by the 

National Renewable Energy Laboratory 

(NREL/TP–550–41956 2008) at http:// 

apps1.eere.energy.gov/buildings/ 

publications/pdfs/ 

commercial_initiative/ 

energy_use_intensity_targets.pdf. 

Examination of Table 4 in the analysis 

DOE commissioned indicates the 

insufficient sample size of the CBECS 

data when both building type and 

climate zone are used to characterize 

building energy consumption. DOE’s 

analysis produced often erratic and 

large variation in kBtu/ft2 by building 

type across the different climate zones 

and even across similar climate zones, 

indicating an insufficient sample size. 

For this reason, DOE is performing 

additional analysis and processing of 

the CBECS data with the goal of 

producing CBECS-based requirements 

by building type and climate zone, with 

the climate zones as defined in the 

baseline standard for 10 CFR part 433 

(ANSI/ASHRAE/IESNA Standard 90.1– 

2004). 

One issue that arises with the use of 

this CBECS data is what to do with 

buildings that are split into multiple 

building types. It is quite common to 

find buildings that are a combination of 

warehouse and office, or warehouse and 

retail, or education and office, or 

laboratory and office, or some other 

combination of building types. Today’s 

proposed rule will offer agencies the 

option to perform a building areaweighted average in order to determine 

the appropriate baseline level of fossil 

fuel-generated energy consumption. 

This process is described in 10 CFR 

433.4(e) of the proposed rule. 

CBECS does not provide data on total 

fossil fuel-generated energy 

consumption in buildings. However, 

fossil fuel-generated energy 

consumption can be calculated from 

CBECS data by using the following 

equation: 

Fossil fuel-generated energy 

consumption = Direct consumption 

of fossil fuels in the building plus 

the amount of electrical energy 

consumption that is generated from 

fossil fuels 

The 2003 CBECS lists direct 

consumption of fossil fuels in Table C1 

(http://www.eia.doe.gov/emeu/cbecs/ 

cbecs2003/detailed_tables_2003/ 

2003set9/2003excel/c1.xls) in columns 

labeled natural gas and fuel oil. The 

2003 CBECS also identifies both the 

primary electrical energy, which is the 

total energy used to generate and 

transmit electricity to a building, and 

the energy content of the electricity 

consumed in the building. In CBECS 

energy consumption data, the primary 

electrical energy required to generate 

and transmit electricity to the point of 

use in a building is roughly three times 

the energy content of the electricity 

itself. The fraction of electricity 

generated from fossil fuels on a 

nationwide basis, referred to in this 

document as the fossil fuel generation 

ratio, is calculated from data in Table 

2.1 of the Energy Information 

Administration (EIA) 2008 Electric 

Power Annual Report (http:// 

www.eia.doe.gov/cneaf/electricity/epa/ 

epat2p1.html) by summing the electric 

generation from coal, petroleum, natural 

gas, and other gases (derived from fossil 

fuels) and then dividing by the total 

electric generation. The fossil fuel 

generation ratio changes each year. 

Because ECPA as amended by EISA 

requires that the fossil fuel-generated 

energy consumption in new buildings 

and those undergoing major renovations 

be compared to that of similar buildings 

in fiscal year 2003, the 2003 fossil fuel 

generation ratio must be used in order 

to calculate the baseline fossil fuelgenerated energy consumption levels. 

For 2003, the fossil fuel generation ratio 

was 0.71, meaning that about 71% of all 

electricity in the United States is 

generated from fossil fuels. 

The approach taken in today’s 

rulemaking to estimate the fossil fuel 

consumption associated with electricity 

consumption applies the national 

average contribution of fossil fuel to 

electricity generation. This approach 

would result in reductions in electricity 

consumption being treated the same 

across all geographic areas, and would 

not reflect regional variations in the 

contribution of fossil fuels to electricity 

generation. DOE is considering a 

regional approach to establishing the 

average fossil fuel fraction associated 

with building energy use. Prior to 

reaching a conclusion regarding the use 

of national or regional averages of fossil 

fuel inputs to the electric sector, DOE 

will evaluate both approaches and both 

average and marginal factors to 

determine their likely effects on agency 

decision-making and their ability to 

provide an accurate indication of the 

likely impacts of reductions in Federal 

agency electricity use on the use of 

fossil fuels in the electric sector. For 

example, the use of national average 

fossil fuel inputs to electric sector 

(rather than regional averages) may 

provide a better indication of the actual 

fossil fuel reductions likely to result 

from reductions in electricity use. 

Reductions in future electricity demand 

are likely to cause electric utilities to 

reduce the power supplied by those 

electricity generation units or sources 

that have the highest marginal costs. 

Over both the short and long run, the 

types of power generation that have the 

highest marginal costs are more likely to 

be fossil fuel units than those powered 

by nuclear, hydropower or other 

renewable energy sources. This is likely 

to be true in all regions of the country, 

regardless of their current or projected 

reliance on fossil fuels to generate 

electricity. Regional marginal fossil fuel 

reduction factors may also be 

appropriate. DOE invites comments on 

whether it should use a national or 

regional approach and average or 

marginal factors to estimate the fossil 

fuel consumption associated with 

electricity consumption, taking into 

consideration the potential implications 

on agency decision-making and actual 

fossil fuel use. 

The fossil fuel-generated energy 

consumption baseline column in Table 

1 below is calculated directly from 

Table C1 in the 2003 CBECS. For each 

building type, the primary electrical 

energy is multiplied by the fossil fuel 

generation ratio then added to the direct 

fossil fuel consumption to get the total 

fossil fuel-generated consumption for 

that particular building type. The total 

fossil fuel consumption is then divided 

by the total floorspace for that building 

type to get the fossil fuel-generated 

energy consumption, as reported in 

Table 1 below. DOE is proposing 

building type definitions based largely 

on the CBECS glossary, with some 

minimal modifications for regulatory 

clarity. DOE requests comment on the 

building type definitions. 

The baselines provided in Table 1 do 

not currently reflect any adjustment for 

climate-related variations in building 

energy use. As discussed elsewhere in 

this proposed rule, DOE believes a 

climate adjustment is necessary to 

provide reasonable baselines, and DOE 

is seeking comment on this issue. In a 

final rule, DOE intends to update the 

values provided in Table 1 for climate. 

Residential Buildings Baseline—RECS 

ECPA as amended by EISA requires 

that the fossil fuel-generated energy 

consumption of new Federal buildings 

and Federal buildings undergoing major 

renovations be compared to that of 

similar buildings in fiscal year 2003 as 

measured by CBECS or RECS data (42 

U.S.C. 6834(a)(3)(D)(i)(I)). Residential 

Energy Consumption Surveys (RECS) 

were conducted in 2001 and 2005; there 

is no data for 2003. Because the 2005 

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63408 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

RECS data is the most recently available 

data at the time of this proposed 

rulemaking, DOE expects to use the 

2005 RECS data as a baseline. 

As with the CBECS data for 

commercial buildings, the limited 

number of buildings surveyed by RECS 

data does not always allow for a direct 

calculation of building energy use by 

climate zone and building type without 

additional analysis. DOE believes, 

however, that a climate adjustment is 

necessary to provide more reasonable 

baselines. DOE, therefore, proposes to 

establish fossil fuel-generated energy 

requirements based on building type 

using RECS data, and then apply a 

climate adjustment using the climate 

zones defined in the baseline energy 

efficiency standard at 10 CFR part 435 

(the 2004 IECC). This ensures that new 

Federal buildings will have to achieve 

reductions commensurate to a baseline 

appropriate for their respective climate 

zone, rather than to a national average 

baseline that is either too cold or too 

warm for their particular needs. DOE 

solicits comment on the best technique 

for calculating the climate adjustment 

for the different building types. 

The 2005 RECS lists direct 

consumption of fossil fuels by 

households in Table US9 available at 

http://www.eia.doe.gov/emeu/recs/ 

recs2005/hc2005_tables/c&e/excel/ 

tableus9.xls in columns labeled natural 

gas, fuel oil, kerosene, and LPG. To 

calculate the total fossil fuel-generated 

energy consumption per household for 

each type of housing unit, the direct 

fossil fuel consumption per household 

and fossil fuel consumption for 

electricity consumption per household 

are summed, using the same factors to 

determine the fossil fuel fraction of 

residential electricity consumption that 

was used for commercial buildings. The 

total fossil fuel-generated energy 

consumption per household is then 

divided by the average floorspace for 

each type of housing unit. The average 

floor space for each type of housing unit 

can be found at http://www.eia.doe.gov/ 

emeu/recs/recs2005/c&e/summary/ 

excel/tableus1part1.xls. This calculation 

produces the fossil fuel use per square 

foot for each type of housing unit. The 

results can be found in the baseline 

column of Table 2 below. DOE is 

proposing building type definitions 

based largely on the RECS glossary, with 

some minimal modifications for 

regulatory clarity. For example, the 2005 

RECS data includes values for 

‘‘manufactured homes’’ although the 

RECS glossary does not define 

‘‘manufactured homes’’ but does define 

‘‘mobile home.’’ DOE requests comment 

on the building type definitions. 

The baselines provided in Table 2 do 

not currently reflect any adjustment for 

climate-related variations in building 

energy use. As discussed elsewhere in 

this proposed rule, DOE believes a 

climate adjustment is necessary to 

provide reasonable baselines, and DOE 

is seeking comment on this issue. In a 

final rule, DOE intends to update the 

values provided in Table 2 for climate. 

When using Table 2, it is important to 

note a shortcoming of RECS data for use 

in performance standards for Federal 

buildings. The shortcoming is that RECS 

data is collected on a per household 

basis and does not include energy use 

in common areas. As a result, the value 

for fossil fuel-generated energy 

consumption per square foot of 

floorspace shown in Table 2 only 

accounts for the non-common areas of 

these buildings. DOE considered 

accounting for common area energy use 

in the requirements, but RECS does not 

collect that data. To resolve this issue, 

DOE proposes applying the RECSderived fossil fuel requirements to all 

applicable floorspace, including 

common and non-common areas. The 

benefits of this approach are that it is 

relatively simple and will not make it 

more difficult for building designers to 

show compliance. Because common 

areas account for a small fraction of 

floorspace, the effect on the requirement 

will be minimal. Also, common areas 

often have a lower energy intensity, so 

by using only non-common areas the 

maximum allowable fossil fuelgenerated energy requirement will, if 

anything, be slightly higher. DOE 

welcomes comments on this approach 

or other specific approaches that could 

be used to develop the RECS-derived 

requirements. 

Calculation of Maximum Allowable 

Fossil Fuel-Generated Energy 

Consumption 

Once the baseline fossil fuelgenerated energy consumption from the 

2003 CBECS and 2005 RECS has been 

determined, the consumption reduction 

requirements as specified in ECPA as 

amended by EISA should be calculated. 

Again, although the baselines provided 

in Tables 1 and 2 do not currently 

reflect any adjustment for climaterelated variations in building energy 

use, DOE is developing fossil fuelgenerated energy requirements based on 

building type using CBECS or RECS 

data, and then applying a climate 

adjustment. In a final rule, DOE intends 

to update the values provided in Tables 

1 and 2 for climate. 

The requirements derived from 

CBECS, which apply to commercial 

buildings, are shown in Table 1. The 

consumption reduction requirements 

derived from RECS, which apply to both 

multi-family high-rise residential 

buildings and low-rise residential 

buildings, are found in Table 2. In this 

rulemaking DOE is proposing a revised 

definition of ‘‘Multi-family high-rise 

residential building,’’ largely based on 

the definition at 10 CFR 434.201, 

although the proposed definition 

clarifies that multi-family high-rise 

residential buildings are designed to be 

four or more stories above grade. 

As discussed above, Tables 1 and 2 

show data only at the national level, 

with national average values used for 

the fossil fuel generation ratio of 0.71. 

As discussed elsewhere in this rule, 

DOE is considering and invites 

comments on whether it should use a 

national or regional approach and 

average or marginal factors to estimate 

the fossil fuel consumption associated 

with electricity consumption. 

For purposes of simplification, values 

in these tables have been truncated to 

the nearest kBtu/ft2. In today’s notice, 

the fossil fuel-generated energy 

consumption percentage reductions are 

presented as maximum allowable fossil 

fuel-generated energy consumption 

levels. Because the figures are premised 

on the proposed baseline values, the 

percentage reductions equate to the 

absolute values which are presented as 

the maximum allowable values. For ease 

of agency interpretation, the maximum 

allowable approach was used in today’s 

notice. 

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Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 63409 

TABLE 1—2003 CBECS FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BASELINE AND MAXIMUM ALLOWABLE FOSSIL

FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING TYPE AND FISCAL YEAR (FY), kBtu/ft2

Building type Baseline 

(kBtu/ft2) 

FY 2012–2014 FY 2015–2019 FY 2020–2024 FY 2025–2029 FY 2030 and 

beyond 

55% 

reduction 

(kBtu/ft2) 

65% 

reduction 

(kBtu/ft2) 

80% 

reduction 

(kBtu/ft2) 

90% 

reduction 

(kBtu/ft2) 

100% 

reduction 

(kBtu/ft2) 

Education ................................................. 126 57 44 25 13 0 

Food Sales ............................................... 387 174 135 77 39 0 

Food Service ............................................ 404 182 141 81 40 0 

Health Care (Inpatient) ............................ 313 141 109 63 31 0 

Health Care (Outpatient) .......................... 148 67 52 30 15 0 

Lodging .................................................... 148 67 52 30 15 0 

Retail (Other Than Mall) .......................... 126 57 44 25 13 0 

Office ........................................................ 160 72 56 32 16 0 

Public Assembly ....................................... 125 56 44 25 12 0 

Public Order and Safety .......................... 146 66 51 29 15 0 

Religious Worship .................................... 62 28 22 12 6 0 

Service ..................................................... 113 51 40 23 11 0 

Warehouse and Storage .......................... 66 30 23 13 7 0 

TABLE 2—2005 RECS FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BASELINE AND MAXIMUM ALLOWABLE FOSSIL

FUEL-GENERATED ENERGY CONSUMPTION BY TYPE OF HIGH-RISE OR LOW-RISE HOUSING UNIT, kBtu/ft2

Building type Baseline 

(kBtu/ft2) 

FY 2012–2014 FY 2015–2019 FY 2020–2024 FY 2025–2029 FY 2030 and 

beyond 

55% 

reduction 

(kBtu/ft2) 

65% 

reduction 

(kBtu/ft2) 

80% 

reduction 

(kBtu/ft2) 

90% 

reduction 

(kBtu/ft2) 

100% 

reduction 

(kBtu/ft2) 

Single-Family Detached ........................... 59 27 21 12 6 0 

Single-Family Attached ............................ 66 30 23 13 7 0 

Multi-Family in 2–4 Unit Buildings ........... 105 47 37 21 11 0 

Multi-Family in 5 or More Unit Buildings 94 42 33 19 9 0 

Manufactured Homes ............................... 115 52 40 23 12 0 

DOE recognizes that the required 

reductions identified in the above tables 

for the years preceding FY 2030 may 

change based on how climate and fossil 

fuels are considered and characterized. 

However, the FY 2030 requirement for 

buildings to be designed such that the 

fossil fuel-generated energy 

consumption is zero would remain 

unchanged. 

Although ECPA as amended by EISA 

requires that new Federal buildings and 

Federal buildings undergoing major 

renovations be designed so that fossil 

fuel-generated energy consumption of 

the buildings is reduced as compared 

with such energy consumption by a 

similar building in fiscal year 2003 (as 

measured by CBECS and RECS), there 

are some building types for which no 

amount of processing of CBECS and 

RECS data will yield an appropriate 

baseline for comparison. Examples 

might include industrialized or research 

facilities. For purpose of determining 

the Maximum Allowable Fossil Fuel 

Energy Consumption for these buildings 

not addressed by CBECS or RECS, DOE 

proposes to use the ASHRAE’s 

Performance Rating Method to 

determine the baseline energy 

consumption for a new Federal 

commercial or multi-family high-rise 

residential building, and the IECC’s 

Simulated Performance Alternative to 

determine the baseline energy 

consumption for a new Federal low-rise 

residential building. DOE welcomes 

input on this approach. 

Calculation of Proposed Building Fossil 

Fuel-Generated Energy Consumption 

To determine compliance, DOE is 

proposing that the fossil fuel-generated 

energy consumption of the proposed 

new Federal building or Federal 

building undergoing major renovation 

should be estimated using the 

Performance Rating Method found in 

Appendix G of ANSI/ASHRAE/IESNA 

Standard 90.1–2004 for commercial and 

multi-family high-rise residential 

buildings, and the ICC International 

Energy Conservation Code 2004 

Supplement for low-rise residential 

buildings. These are the same methods 

already prescribed at 10 CFR parts 433 

and 435, respectively. Because of the 

complexity involved in estimating fossil 

fuel-generated energy consumption, this 

compliance requirement effectively 

requires the use of a whole building 

simulation tool. Whole building 

simulations are already performed today 

for most medium- and large-sized 

buildings to accurately estimate loads 

for purposes of sizing HVAC equipment 

for evaluating buildings under voluntary 

industry building codes. The outputs 

from these tools typically include site 

energy usage for both electricity and 

fossil fuel. 

To compare the estimated fossil fuelgenerated energy consumption from the 

whole-building simulation tool to the 

maximum allowable fossil fuelgenerated energy consumption under 

the statute, the designer should first 

calculate the primary electrical energy 

by multiplying the site electrical energy 

(from the whole building simulation), 

including receptacle and process loads, 

by the electricity source energy factor. 

The designer then calculates the fossil 

fuel-generated electrical consumption 

by multiplying the primary electrical 

energy by the fossil fuel-generation 

ratio. Finally, the designer must then 

sum up the fossil fuel-generated 

electrical consumption and any nonmstockstill on DSKH9S0YB1PROD with PROPOSALS

63410 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

electrical fossil fuels directly used in the 

proposed building (such as gas furnaces, 

gas cooking stoves, gas water heaters, 

etc.). The sum should be less than or 

equal to the required fossil fuelgenerated energy consumption value for 

the appropriate building type. 

The electricity source energy factor is 

the ratio of primary electrical energy 

consumed to generate and deliver 

energy to a site to the electrical energy 

consumed on site. DOE is proposing 

that the electricity source energy factor 

would be calculated by dividing the 

average utility delivery ratio in Table 

6.2.4 of the DOE Building Energy Data 

Book (http:// 

buildingsdatabook.eren.doe.gov/docs/ 

xls_pdf/6.2.4.xls) by 3412 to convert the 

value from Btu/kWh to kWh/kWh. The 

fossil fuel generation ratio would be 

calculated using the EIA’s latest Electric 

Power Annual report by summing the 

electric generation from coal, petroleum, 

natural gas, and other gases (derived 

from fossil fuels) and then dividing by 

the total electric generation. 

DOE notes that the simulation 

analysis requirement may be 

burdensome for designers of some 

buildings, particularly small buildings. 

DOE also acknowledges that the 

Advanced Energy Design Guides 

(AEDGs) have been completed for a few 

building types, including the most 

significant commercial building types 

and sizes, but the AEDGS are not 

designed to achieve the reduction levels 

necessary under this rule. DOE 

welcomes comments on alternatives to a 

whole building simulation to 

demonstrate compliance of these 

buildings with the requirements of this 

proposed rulemaking. DOE also 

welcomes comments on the calculations 

methods discussed in this section. 

Plug and Process Energy Consumption 

EPACT 2005 as amended by EISA 

requires that building be designed so 

that the fossil fuel-generated energy 

consumption of the buildings is reduced 

as compared with such energy 

consumption by a similar building as 

measured by CBECS and RECS. All 

building energy consumption, including 

plug and process energy consumption, 

is included in baseline CBECS and 

RECS data, and thus is also factored into 

the maximum allowable fossil fuelgenerated energy consumption. 

Therefore, it is necessary that plug and 

process loads also be included in the 

fossil fuel-generated energy 

consumption of the new Federal 

building or Federal building undergoing 

major renovations. This is consistent 

with Table G3.1.12 in Appendix G, 

Performance Rating Method, ASHRAE 

Standard 90.1–2004. DOE acknowledges 

the difficulty of estimating plug and 

process loads and that their inclusion 

may make it more difficult to achieve 

the mandated fossil fuel-generated 

energy consumption reductions. DOE 

welcomes comments on how the 

proposed rule can be designed such that 

the assumptions used in the whole 

building simulations accurately reflect, 

to the best degree possible, the final 

building design and the operation of the 

building, including plug and process 

loads. 

Purchase of Offsite Renewable Energy 

In order to meet the maximum 

allowable fossil fuel-generated energy 

consumption requirements mandated by 

ECPA as amended by EISA, fossil fuelgenerated energy consumption could be 

offset with use of energy created from 

other sources, including renewable 

energy sources. DOE also recognizes 

there may be physical limitations to the 

amount of on-site renewable electricity 

that can be produced, and it may be 

more affordable in some cases for an 

agency to purchase electricity from 

centralized renewable energy-generation 

facilities. As an example, ASHRAE 

Standard 189.1–2009, ‘‘The Standard for 

High-Performance Green Buildings,’’ has 

an on-site renewable energy 

requirement, but allows the use of 

Renewable Energy Certificates as an 

alternative to meet the requirement. 

DOE is concerned however, that 

purchase of renewable energy-generated 

electricity via Renewable Energy 

Certificates or direct Power Purchase 

Agreements may simply reduce the 

amount of renewable energy available 

for purchase by other entities within the 

U.S. and may not necessarily lead to an 

overall decrease in domestic fossil fuelgenerated energy consumption. In 

addition, unlike Power Purchase 

Agreements, the purchase of Renewable 

Energy Certificates does not involve a 

long-term binding agreement and can 

readily be cancelled. It should also be 

noted that the use of Renewable Energy 

Certificates is being phased out by 

January 2012, as a way to meet the 

renewable energy consumption levels 

established under section 203 of EPACT 

2005 and Executive Order 13423 (see 

‘‘Renewable Energy Requirement 

Guidance for EPACT 2005 and 

Executive Order 13423,’’ available at: 

http://www1.eere.energy.gov/femp/pdfs/ 

epact05_fedrenewenergyguid.pdf). 

DOE is leaning toward allowing 

Power Purchase Agreements with a 

long-term contract to count toward 

meeting the fossil fuel-generated energy 

consumption reduction requirements, 

but not allowing Renewable Energy 

Certificates. Under this approach, 

agencies would be allowed to subtract 

the annual electricity generated by the 

renewable energy-generation facility 

from the building’s annual site electrical 

energy consumption. The building 

designer would use this quantity, the 

net site electrical energy consumption, 

when calculating the building’s fossil 

fuel-generated energy consumption. In 

effect, the Power Purchase Agreements 

would help agencies meet the fossil fuel 

consumption requirements. DOE invites 

comments on how Renewable Energy 

Certificates and Power Purchase 

Agreements should be addressed in the 

context of this rulemaking. DOE also 

invites comments on the proposed 

approach with respect to Power 

Purchase Agreements. 

Potential Impact on Onsite Electrical 

Generation From Natural Gas 

DOE is interested in the effect of fossil 

fuel-generated energy consumption 

reduction requirements on distributed 

energy technologies that provide onsite 

electrical generation from natural gas 

such as in power plants and combined 

heat and power (CHP) systems. At 

power plants and in CHP systems, 

natural gas is used to generate both heat 

and electricity. A building with a CHP 

system could potentially be an all-gas 

building in terms of utility purchases 

and would therefore be required to 

reduce natural gas consumption in 

accordance with the fossil fuelgenerated energy consumption 

reduction requirements. DOE’s intent is 

to ensure the rule does not penalize or 

discourage the use of on-site CHP 

systems, and invites comments how 

appropriate credit may be given for CHP 

systems through the compliance 

determination methodology. 

E. Cost Analysis 

Given the significant reductions in 

fossil fuel-generated energy 

consumption that would be required in 

today’s proposed rulemaking, one 

obvious question is how much will 

compliance with this proposed rule 

impact the cost of new Federal 

construction and major renovations. The 

answer to that question depends both on 

the building type and type of housing 

unit being constructed and the level of 

fossil fuel-generated energy 

consumption reduction that is required. 

DOE commissioned a study by Pacific 

Northwest National Laboratory in 2008 

to look at the incremental costs of high 

performance buildings. Cost data for 

high performance buildings is fairly rare 

and many times the costs for achieving 

high levels of energy efficiency are 

intermingled with the costs to achieve 

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Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 63411 

more sustainable design. That report 

entitled, ‘‘Literature Review of Data on 

the Incremental Costs to Design and 

Build Low-Energy Buildings (Hunt, WD, 

2008, PNNL–17502 and available at 

http://www.pnl.gov/main/publications/ 

external/technical_reports/PNNL17502.pdf) came to the following key 

findings as noted in the summary of the 

document: 

Key findings of this literature review are as 

follows: 

1. Objectively-developed and verifiable 

data on the cost premium for low-energy 

(high efficiency) buildings are very limited. 

Most of the literature focused on green or 

sustainable buildings, not on low-energy 

buildings. 

2. In cases where energy efficiency cost 

data were available, the cost premiums 

ranged from 1% to 7%. In most cases, the 

cost premium was less than 4%. 

3. Technology solutions are available right 

now to achieve savings on the order of 30% 

and more over ASHRAE Standard 90.1–2004; 

however, cost-effectiveness of these 

technology solutions is often not addressed. 

4. Independent surveys administered to 

assess the perceptions of building owners 

and designers regarding the costs to build 

and operate green/energy-efficient buildings, 

and the willingness of owners/developers to 

invest in green/energy-efficient buildings, 

reveal some interesting common threads. 

i. There is a perception that energyefficient/green buildings cost significantly 

more to design (starting at a 5% premium) 

and represent a key barrier with decision 

makers. 

ii. There seems to be a potential 

willingness (as implied or measured through 

survey responses) to build more energyefficient buildings for cost premiums below 

5%. 

In response to the third key finding 

listed in the report, DOE began 

calculating cost impacts for their work 

associated with AEDGs. Cost impact 

data are available in the technical 

support document (TSD) of one 

published ASHRAE AEDG for small 

warehouses that are 30% better than 

Standard 90.1–2004 and four TSDs 

prepared by DOE for support of future 

AEDGs that will achieve 50% savings 

over Standard 90.1–2004. The four TSDs 

are for medium offices, roadside 

lodging, general retail, and grocery 

stores. DOE expects to develop six 

additional TSDs for small offices, large 

offices, quick service restaurants, large 

hospitals, university dormitories, and 

K–12 schools in FY10. These additional 

TSDs were not available at the time this 

notice was prepared. 

The available TSDs may be found at: 

Small Warehouse (30% savings)— 

http://www.pnl.gov/main/publications/ 

external/technical_reports/PNNL17056.pdf. General Merchandise (50% 

savings)—http://www.nrel.gov/docs/ 

fy09osti/46100.pdf. Grocery Stores (50% 

savings)—http://www.nrel.gov/docs/ 

fy09osti/46101.pdf. Highway Lodging 

Buildings (50% savings)—http:// 

www.pnl.gov/main/publications/ 

external/technical_reports/PNNL18773.pdf. Medium Office (50% 

savings)—http://www.pnl.gov/main/ 

publications/external/technical_reports/ 

PNNL-19004.pdf. 

Results from the cost analyses in three 

of these TSDs—small warehouse, 

highway lodging, and medium office— 

are shown below in Table 3. Ranges in 

the results are a function of climate 

zone, with buildings in some climates 

zones costing more or generating less 

energy savings. Multiple HVAC systems 

were evaluated for the 50% medium 

office—a more efficient but more 

expensive radiant system and a more 

standard variable air volume (VAV) 

system. It should be noted that all of the 

buildings analyzed for the TSDs did 

have increased first costs, but that the 

energy savings provided relatively good 

payback periods. 

TABLE 3—COST EFFECTIVENESS ANALYSIS OF HIGHLY ENERGY EFFICIENT BUILDINGS

TSD Building square footage Incremental cost ($ per ft2) Incremental cost (percentage 

increase) 

Simple payback on energy 

savings (years) 

Warehouse ............. 50,000 ft2 ............................. 1.88 to 3.56 ......................... 2.6% to 7% ........................... 6.0 to 13.5. 

Highway Lodging ... 43,000 ft2 ............................. 7.58 to 10.85 ....................... 8.4% to 8.7% ........................ 9.6 to 15.9. 

Medium Office ........ 53,600 ft2 ............................. 5.47 to 9.03 (Radiant) 2.37 

to 4.22 (VAV).

5.4% to 7.0% (Radiant) 2.7% 

to 3.9% (VAV).

5.6 to 11.1 (Radiant) 3.3 to 

6.2 (VAV). 

Consideration of the graduated levels 

of fossil fuel-generated energy 

consumption reduction listed in the 

statute (55%, 65%, 80%, 90%, and 

100%), coupled with the fact that a 

percentage reduction is not directly 

comparable to a 30% or 50% savings 

over ASHRAE Standard 90.1–2004, 

makes it hard to determine what level 

of savings is associated with the 1% to 

7% cost premiums cited in the PNNL 

study (‘‘Literature Review of Data on the 

Incremental Costs to Design and Build 

Low-Energy Buildings,’’ Hunt, WD, 

2008, PNNL–17502). Converting both 

the requirements of this proposed 

rulemaking and the simulated 

performance of buildings built to 30% 

better than ASHRAE Standard 90.1– 

2004 to a common Energy Use Intensity 

basis provides a better method of 

comparison. Also note that the 

comparison must be made on a similar 

energy basis. Today’s proposed 

rulemaking applies to fossil fuelgenerated energy consumption, which is 

close to source energy, while results 

from the TSDs are typically expressed in 

site energy. 

Table 4 shows the comparison of the 

fossil fuel-generated energy 

consumption reductions proposed in 

this rulemaking to the fossil fuel 

reductions achieved in the simulations 

associated with two of the TSDs, the 

medium office and highway lodging. 

TABLE 4—FOSSIL FUEL-GENERATED ENERGY CONSUMPTION PROPOSED IN TODAY’S RULEMAKING AND CALCULATED IN

SELECTED AEDGS

Building type 

55% Fossil 

fuel reduction 

from CBECS 

kBtu/ft2

65% Fossil 

fuel reduction 

from CBECS 

kBtu/ft2

80% Fossil 

fuel reduction 

from CBECS 

kBtu/ft2

Fossil fuel 

reduction 

calculated in 

TSD kBtu/ft2

Incremental cost 

(percentage 

increase) 

Medium Office (Rad) ....................................................... 72 56 32 49.2 5.4% to 7.0%. 

Medium Office (VAV) ...................................................... 72 56 32 63.6 2.7% to 3.9%. 

Highway Lodging ............................................................. 67 52 30 56.4 8.4% to 8.7%. 

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63412 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

Table 4 indicates that the estimated 

cost savings from the 50% TSDs can be 

used to support the fact that 55% fossil 

fuel-generated energy consumption 

reductions and perhaps even 65% fossil 

fuel-generated energy consumption 

reductions from CBECS will require cost 

increases of no more than 8.7%. None 

of the savings achieved in the 50% 

TSDs approach the reduction mandated 

at the 80% fossil fuel-generated energy 

consumption reduction level, so the cost 

estimates for that level of savings and 

higher levels cannot be estimated. 

With respect to residential buildings, 

DOE does not anticipate that there will 

be many low-rise residential buildings 

that will fall under today’s proposed 

rulemaking as most Federal low-rise 

residential buildings are not likely to be 

public buildings or buildings for which 

construction costs are at least $2.5 

million in 2007 dollars, which are 

criteria that determine whether 

buildings are subject to the 

requirements in today’s proposed rule. 

The only low-rise residential buildings 

that might be considered to fall under 

today’s proposed rule would be low-rise 

military barracks, and those barracks are 

best considered to be similar to the 

dormitory or lodging building types 

found in CBECS. 

Using CBECS and RECS baselines 

without a climate adjustment puts 

buildings in colder climate zones at a 

cost disadvantage because the nonadjusted baseline would be lower than 

for one adjusted for climate. A nonadjusted baseline for colder climates 

would require larger, more costly fossil 

fuel-generated energy consumption 

reductions. Conversely, using CBECS 

and RECS baselines without a climate 

adjustment provides a cost advantage to 

buildings in warmer climate zones 

because the baseline would be greater 

than for one adjusted for climate. A nonadjusted baseline for warmer climates 

would require smaller, less costly fossil 

fuel-generated energy consumption 

reductions. 

However, adjusting for climate in both 

the baseline and the required reduction 

level would be expected to eliminate 

potential regional inequity that could 

result from climate variation and help 

ensure that the fossil fuel-generated 

energy consumption reductions are 

commensurate to the climate zone. 

Similarly, consideration of regional 

variations in the fossil fuel contribution 

to electricity is not expected to result in 

substantial differences in the 

compliance burden for buildings across 

regions so long as regional variations are 

also reflected in the baseline buildings. 

If the regional values were used for both 

the baseline building and the required 

reduction level, the burden of meeting 

the percentage reductions would remain 

roughly the same in all regions 

(although regions with low fossil fuel 

use in the electric sector might have to 

find more savings in non-electric enduses). 

DOE is seeking comment on a number 

of issues related to the cost-effectiveness 

of today’s proposed rule, especially any 

construction cost increases for buildings 

Federal agencies are in the process of 

designing or have already built. DOE is 

seeking comment on these cost impacts. 

F. Agency Petitions for Adjustment to 

the Percentage Reduction Requirement 

ECPA as amended by EISA permits 

DOE upon petition by an agency subject 

to the statutory requirements to adjust 

the applicable numeric fossil fuelgenerated energy consumption 

percentage reduction requirement 

‘‘downward with respect to a specific 

building, if the head of the agency 

designing the building certifies in 

writing that meeting such requirement 

would be technically impracticable in 

light of the agency’s specified functional 

needs for the building’’ and DOE 

concurs with the agency’s conclusion. 

(42 U.S.C. 6834(a)(3)(D)(i)(II)) ECPA as 

amended by EISA further directs that 

such an adjustment does not apply to 

GSA. 

Today’s action proposes that a 

petition for downward adjustment of the 

numeric requirement should include an 

explanation of what measures would be 

required to meet the fossil fuelgenerated energy consumption 

reduction requirement, and why those 

measures would be technically 

impracticable in light of the agency’s 

specified functional needs for the 

building. DOE proposes that the petition 

should also demonstrate that the 

adjustment requested by the agency 

represents the largest feasible reduction 

in fossil fuel-generated energy 

consumption that can reasonably be 

achieved. DOE welcomes comments on 

that proposal. Although the downward 

adjustment provision of ECPA as 

amended by EISA does not expressly 

include cost considerations, DOE is 

considering incorporating cost 

considerations as part of a ‘‘technically 

impracticable’’ determination. Cost 

would not be the sole rationale for a 

determination of ‘‘technically 

impracticable,’’ but high costs could be 

part of the evaluation. (42 U.S.C. 

6834(a)(3)(D)). DOE also invites 

comments that would help clarify what 

kind of technical impracticability would 

constitute grounds for a petition for 

downward adjustment. 

The petition pursuant to ECPA as 

amended by EISA should also include a 

written certification statement by the 

head of the agency designing the 

building that meeting the fossil fuelgenerated energy consumption 

reduction requirements would be 

technically impracticable in light of the 

agency’s specified functional needs for 

that building. 42 U.S.C. 6834(D)(i)(II). 

DOE notes that the statute exempts 

GSA from the option to petition DOE for 

a downward adjustment of the 

applicable percentage reduction 

requirement. However, DOE proposes 

that a new Federal building or a Federal 

building undergoing major renovations 

for which a Federal agency is providing 

substantive and significant design 

criteria may be the subject of a petition. 

Under this approach, a GSA building 

that is designed to meet the 

specifications provided by a tenant 

agency may be considered for a 

downward adjustment if a petition is 

submitted by the head of the tenant 

agency. 

DOE will review petitions in a timely 

manner. If the petitioning agency has 

successfully demonstrated the need for 

a downward adjustment per the 

discussion above, DOE will concur with 

the agency’s conclusion and notify the 

agency in writing. If DOE does not 

concur, it will forward its reasons to the 

petitioning agency with suggestions as 

to how the fossil fuel-generated energy 

consumption percentage reduction 

requirement may be achieved. 

A petition for downward adjustment 

of the numeric reduction, including any 

supporting information, would be 

addressed to: Margo Appel, Building 

Technologies Program, U.S. Department 

of Energy, 1000 Independence Avenue, 

SW., Washington, DC 20585. 

G. Guidance on Measures To Reduce 

Fossil Fuel-Generated Energy 

Consumption 

Building energy efficiency solutions 

involve advanced technologies, 

integrated design principles, control 

strategies and other tools. The 

appropriate solution and the 

effectiveness of each solution will vary 

based on building type, building size, 

and location. To successfully design a 

high performance building, Federal 

agencies must use a reputable, 

experienced design team. There are an 

increasing number of firms in all 

locations that have designed high 

performance buildings. The key to 

successful design is identifying firms 

with the requisite experience and skills, 

adopting an integrated design process 

that begins at the first phase of the 

building project, and providing clear 

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Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 63413 

direction and quality control over the 

firm’s work. DOE invites comment from 

agencies as to what additional training 

in this area might be helpful. 

Numerous tools are available to help 

Federal agencies achieve the required 

fossil fuel reductions. DOE, in 

conjunction with ASHRAE, has 

developed a series of Advanced Energy 

Design Guides to achieve 30 percent 

reductions in energy use for several 

types of small buildings (small office 

buildings, small retail buildings, K–12 

school buildings, small warehouses and 

self-storage buildings, highway lodging, 

and small hospitals and healthcare 

facilities). DOE and ASHRAE are 

working on 50 percent reduction 

guidelines for several building types. 

Additional tools and resources are 

available through the EERE Web site. 

DOE’s Building Technologies Program 

maintains a database of highperformance buildings (available at 

http://eere.buildinggreen.com). 

Other resources include: The National 

Institute of Building Sciences’ Whole 

Building Design Guide; the U.S. Green 

Building Council’s Leadership in Energy 

and Environmental Design (LEED) 

system; ASHRAE Standard 189.1–2009, 

Standard for the Design of High 

Performance Green Buildings Except 

Low-Rise Residential Buildings; and the 

International Code Council’s 

International Green Construction Code 

Public Version 1.0. DOE’s Federal 

Energy Management Program (FEMP) 

Web site provides access to these and 

other resources and tools that can help 

Federal agencies improve the energy 

efficiency of new and existing buildings 

(available at http:// 

www1.eere.energy.gov/femp/). DOE has 

also published a cool roof resource 

guide for Federal agencies, available at 

http://www1.eere.energy.gov/femp/ 

features/cool_roof_resources.html. DOE 

is also developing additional guidance 

that provides technical and cost data 

related to the installation of cool roofs. 

H. Post-Construction Monitoring and 

Reporting 

ECPA as amended by EISA does not 

contain any explicit post-construction 

monitoring and reporting requirements. 

Federal agencies, however, are 

reminded of the monitoring, reporting, 

and benchmarking requirements in 

section 103 of the Energy Policy Act of 

2005 (EPAct 2005) and section 432 of 

EISA. FEMP has issued guidance for the 

metering requirements in section 103 of 

EPAct 2005 (available at http:// 

www1.eere.energy.gov/femp/pdfs/ 

adv_metering.pdf). FEMP has also 

developed guidance for meeting EISA 

section 432 requirements (available at 

http://www1.eere.energy.gov/femp/pdfs/ 

eisa_s432_guidelines.pdf). Finally, 

FEMP has also issued additional 

guidance on EISA section 432 

benchmarking (available at http:// 

www.eere.energy.gov/femp/pdfs/ 

eisa_s432_guidelines.pdf). 

FEMP has selected the Energy Star 

Portfolio Manager as the required 

building energy use benchmarking 

system for Federal agencies. Additional 

information on the use of Energy Star 

Portfolio Manager, energy management, 

and benchmarking in general may be 

found on the EPA Energy Star Web site 

at http://www.energystar.gov/ 

index.cfm?c=business.bus_index. 

III. Reference Resources 

DOE has prepared a list of resources 

to help Federal agencies address the 

reduction of fossil fuel-generated energy 

consumption. The interim final rule on 

energy efficiency published in the 

Federal Register on December 4, 2006 

(71 FR 70275) contains reference 

resources for energy efficiency 

improvement in building design. These 

resources come in many forms such as 

design guidance, case studies and in a 

variety of media such as printed 

documents or on Web sites. The 

resources for energy efficiency 

improvement will also provide guidance 

for fossil fuel-based energy consumption 

reduction. 

IV. Regulatory Review 

A. Review Under Executive Order 12866 

Today’s notice of proposed 

rulemaking has been determined to be 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 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,’’ (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). 

DOE has made its procedures and 

policies available on the Office of 

General Counsel’s Web site: http:// 

www.gc.doe.gov. 

DOE has reviewed today’s proposed 

rule under the provisions of the 

Regulatory Flexibility Act and the 

procedures and policies published on 

February 19, 2003. Today’s proposed 

rulemaking applies only to the fossil 

fuel-generated energy consumption of 

new Federal buildings and Federal 

buildings undergoing major renovation. 

As such, the only entities impacted by 

this rulemaking would be Federal 

agencies. DOE does not believe that 

there will be any impacts on small 

entities such as small businesses, small 

organizations, or small governmental 

jurisdictions. 

On the basis of the foregoing, DOE 

certifies that this proposed rule would 

not have a significant economic impact 

on a substantial number of small 

entities. Accordingly, DOE has not 

prepared a regulatory flexibility analysis 

for this rulemaking. DOE’s certification 

and supporting statement of factual 

basis will be provided to the Chief 

Counsel for Advocacy of the Small 

Business Administration pursuant to 

5 U.S.C. 605(b). 

C. Review Under the Paperwork 

Reduction Act of 1995 

This proposed rule 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 

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 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 4, 1999), imposes 

certain requirements on agencies 

formulating and implementing policies 

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63414 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

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 carefully assess the 

necessity for such actions. DOE has 

examined the proposed rule and 

determined that it would not preempt 

State law and would not have a 

substantial direct effect on the States, on 

the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of Government. No further action 

is required by Executive Order 13132. 

F. Review Under Executive Order 12988 

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 Executive 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. With regard to 

the review required by section 3(a), 

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 proposed 

rule meets the relevant standards of 

Executive Order 12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

The Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4) generally 

requires Federal agencies to examine 

closely the impacts of regulatory actions 

on State, local, and Tribal governments. 

For a proposed regulatory action likely 

to result in a rule that may cause the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish a written 

statement that estimates the resulting 

costs, benefits, and other effects on the 

national economy. (2 U.S.C. 1532(a) and 

(b)) The UMRA also requires a Federal 

agency to develop an effective process 

to permit timely input by elected 

officers of State, local, and Tribal 

governments on a proposed ‘‘significant 

intergovernmental mandate,’’ and 

requires an agency plan for giving notice 

and opportunity for timely input to 

potentially affected small governments 

before establishing any requirements 

that might significantly or uniquely 

affect small governments. On March 18, 

1997, DOE published a statement of 

policy on its process for 

intergovernmental consultation under 

UMRA (62 FR 12820) (also available at 

http://www.gc.doe.gov). This 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, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any 

proposed rule that may affect family 

well-being. This proposed rule would 

not have any impact on the autonomy 

or integrity of the family as an 

institution. Accordingly, DOE has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

I. Review Under Executive Order 12630 

DOE 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 

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 proposed rule under 

the OMB and DOE guidelines and has 

concluded that it is consistent with 

applicable policies in those guidelines. 

K. Review Under Executive Order 13211 

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 OMB 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. Today’s proposed 

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. 

V. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of today’s notice of 

proposed rulemaking. 

List of Subjects in 10 CFR Parts 433 and 

435 

Buildings and facilities, Energy 

conservation, Engineers, Federal 

buildings and facilities, Housing. 

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Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 63415 

Issued in Washington, DC, on September 

30, 2010. 

Cathy Zoi, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy. 

For the reasons set forth in the 

preamble, DOE proposes to amend 

chapter II of title 10 of the Code of 

Federal Regulations as set forth below: 

PART 433—ENERGY EFFICIENCY AND 

FOSSIL FUEL-GENERATED ENERGY 

CONSUMPTION REDUCTION DESIGN 

STANDARDS FOR NEW AND MAJOR 

RENOVATIONS TO FEDERAL 

COMMERCIAL AND MULTI-FAMILY 

HIGH-RISE RESIDENTIAL BUILDINGS 

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. 

2. The heading for part 433 is revised 

to read as set forth above. 

3. Section 433.1 is revised to read as 

follows: 

§ 433.1 Purpose and scope. 

This part establishes an energy 

efficiency performance and maximum 

allowable fossil fuel-generated energy 

consumption standard for new Federal 

commercial and multi-family high-rise 

residential buildings, for which design 

for construction began on or after 

January 3, 2007 (except as otherwise 

indicated: fossil fuel-generated energy 

consumption requirements are 

applicable one year after publication of 

the final rule), as required by section 

305(a) of the Energy Conservation and 

Production Act, as amended (42 U.S.C. 

6834(a)). Additionally, this part 

establishes certain requirements 

applicable to major renovations of 

Federal commercial and multi-family 

high-rise residential buildings, as 

indicated. For renovated buildings, 

those requirements apply only to the 

portions of the building or building 

systems that are being renovated and to 

the extent that the scope of the 

renovation permits compliance with the 

applicable requirements in this part. 

Unaltered portions of the building or 

building systems are not required to 

comply with this part. 

4. Section 433.2 is amended by 

adding in alphabetical order new 

definitions for ‘‘Direct fossil fuel 

consumption,’’ ‘‘District Energy System,’’ 

‘‘Electricity fossil fuel-generation ratio,’’ 

‘‘Electricity source energy factor,’’ 

‘‘Fossil fuel,’’ ‘‘Fossil fuel consumption 

for electricity generation,’’ ‘‘Fossil fuelgenerated energy consumption,’’ ‘‘Multifamily high-rise residential building,’’ 

and ‘‘Primary electrical energy 

consumption’’ to read as follows: 

§ 433.2 Definitions. 

* * * * * 

Direct fossil fuel consumption means 

the total fossil fuel consumption in a 

building excluding fossil fuel 

consumption for electricity generation. 

This includes any fossil fuel 

consumption resulting from a district 

energy system used in a building. 

District Energy System means a 

central energy conversion plant and 

transmission and distribution system 

that provides thermal energy to a group 

of buildings (heating via hot water or 

steam, and/or cooling via chilled water). 

This definition includes only thermal 

energy systems; central energy supply 

systems that provide only electricity are 

excluded from this definition. 

* * * * * 

Electricity fossil fuel-generation ratio 

means the fraction of national U.S. 

electricity generation from fossil fuel 

sources as provided by the Energy 

Information Administration Electric 

Power Annual report for the appropriate 

year. 

Electricity source energy factor is the 

ratio of primary electrical energy 

consumed to generate and deliver 

energy to a site relative to electrical 

energy consumed on site. The electricity 

source energy factor may be calculated 

by dividing the average utility delivery 

ratio in Table 6.2.4 of the DOE Building 

Energy Data Book for the appropriate 

year by 3412 to convert the value from 

Btu/kWh to kWh/kWh. 

* * * * * 

Fossil fuel means a fuel formed in the 

earth from plant or animal remains. 

Fossil fuels include coal, oil, natural 

gas, kerosene, and liquefied petroleum 

gas (LPG). 

Fossil fuel consumption for electricity 

generation means the primary electrical 

energy consumption in a building 

supplied from the national power grid 

multiplied by the electricity fossil fuelgeneration ratio. Electricity generated 

completely from non-fossil fuel sources 

or from a dedicated source not 

connected to the national power grid is 

excluded from this definition. 

Fossil fuel generated-energy 

consumption means the sum of direct 

fossil fuel consumption plus fossil fuel 

consumption for electricity generation. 

* * * * * 

Multi-family high-rise residential 

building means a residential building 

that contains three or more dwelling 

units and that is designed to be 4 or 

more stories above grade. 

* * * * * 

Primary electrical energy 

consumption means the total amount of 

energy used to generate and deliver 

electrical energy to a building from the 

national power grid. 

* * * * * 

5. Section 433.4 is amended by 

adding new paragraphs (d), (e), and (f) 

to read as follows: 

§ 433.4 Energy efficiency performance 

standard. 

* * * * * 

(d) All Federal agencies shall design 

new Federal commercial and multifamily high-rise residential buildings 

and major renovations to Federal 

commercial and multi-family high-rise 

residential buildings, for which design 

for construction began at least one year 

after publication of the final rule, to 

meet the requirements of paragraph (e) 

of this section if: 

(1) The subject building is a public 

building as defined in 40 U.S.C. 3301 

and for which transmittal of a 

prospectus to Congress is required 

under 40 U.S.C. 3307; or 

(2) The cost of the building or major 

renovation is at least $2,500,000 (in 

2007 dollars, adjusted for inflation). 

(e)(1) All Federal agencies shall 

design new Federal commercial and 

multi-family high-rise residential 

buildings and major renovations of 

Federal commercial and multi-family 

high-rise residential buildings for which 

design for construction began at least 

one year after publication of the final 

rule and that are classified in paragraph 

(d) of this section, to meet fossil fuelgenerated energy consumption values 

equal to or lesser than the values shown 

in Table 1. The maximum allowable 

fossil fuel generated energy 

consumption values in Table 1 are a 

function of building type and fiscal year 

for which design for construction began. 

(2) For the purpose of this paragraph 

(e), the following definitions apply: 

(i) Education means buildings used 

for academic or technical classroom 

instruction, such as elementary, middle, 

or high schools, and classroom 

buildings on college or university 

campuses. Buildings on education 

campuses for which the main use is not 

classroom are included in the category 

relating to their use. For example, 

administration buildings are part of 

‘‘Office,’’ dormitories are ‘‘Lodging,’’ and 

libraries are ‘‘Public Assembly.’’ 

(ii) Food sales means buildings used 

for retail or wholesale of food. For 

example, grocery stores are ‘‘Food 

Sales.’’ 

(iii) Food service means buildings 

used for preparation and sale of food 

and beverages for consumption. For 

example, restaurants are ‘‘Food Service.’’ 

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63416 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

(iv) Health care (inpatient) means 

buildings used as diagnostic and 

treatment facilities for inpatient care. 

(v) Health care (outpatient) means 

buildings used as diagnostic and 

treatment facilities for outpatient care. 

Medical offices are included here if they 

use any type of diagnostic medical 

equipment (if they do not, they are 

categorized as an office building). 

(vi) Lodging means buildings used to 

offer multiple accommodations for 

short-term or long-term residents, 

including skilled nursing and other 

residential care buildings. 

(vii) Multi-family in 2–4 unit buildings 

means a unit in a building with two to 

four housing units—a structure that is 

divided into living quarters for two, 

three, or four families or households in 

which one household lives above or 

beside another. This category also 

includes houses originally intended for 

occupancy by one family (or for some 

other use) that have since been 

converted to separate dwellings for two 

to four families. 

(viii) Multi-family in 5 or more unit 

buildings means a unit in a building 

with five or more housing units—a 

structure that contains living quarters 

for five or more households or families 

and in which one household lives above 

or beside another. 

(ix) Public assembly means public or 

private buildings, or spaces therein, in 

which people gather for social or 

recreational activities. 

(x) Public order and safety means 

buildings used for the preservation of 

law and order or public safety. 

(xi) Religious worship means 

buildings in which people gather for 

religious activities, (such as chapels, 

churches, mosques, synagogues, and 

temples). 

(xii) Retail (other than mall) means 

buildings used for the sale and display 

of goods other than food. 

(xiii) Service means buildings in 

which some type of service is provided, 

other than food service or retail sales of 

goods. 

(xiv) Warehouse and storage means 

buildings used to store goods, 

manufactured products, merchandise, 

raw materials, or personal belongings 

(such as self-storage). 

TABLE 1—MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING TYPE, COMMERCIAL

BUILDINGS, kBtu/ft2

Building type 

kBtu/ft2 by fiscal year for which design for construction began 

FY 2012–2014 FY 2015–2019 FY 2020–2024 FY 2025–2029 FY 2030 and 

beyond 

Education ............................................................................. 57 44 25 13 0 

Food Sales ........................................................................... 174 135 77 39 0 

Food Service ........................................................................ 182 141 81 40 0 

Health Care (Inpatient) ........................................................ 141 109 63 31 0 

Health Care (Outpatient) ...................................................... 67 52 30 15 0 

Lodging ................................................................................ 67 52 30 15 0 

Retail (Other Than Mall) ...................................................... 57 44 25 13 0 

Office .................................................................................... 72 56 32 16 0 

Public Assembly ................................................................... 56 44 25 12 0 

Public Order and Safety ...................................................... 66 51 29 15 0 

Religious Worship ................................................................ 28 22 12 6 0 

Service ................................................................................. 51 40 23 11 0 

Warehouse and Storage ...................................................... 30 23 13 7 0 

(3) For multi-family high-rise 

residential buildings, the maximum 

allowable fossil fuel-generated energy 

consumption in kBtu per ft2 is listed in 

Table 2. 

TABLE 2—MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING TYPE, MULTI-FAMILY

HIGH-RISE RESIDENTIAL BUILDINGS, kBtu/ft2

Building type 

kBtu/ft2 by fiscal year for which design for construction began 

FY 2012–2014 FY 2015–2019 FY 2020–2024 FY 2025–2029 FY 2030 and 

beyond 

Multi-Family in 2–4 Unit Buildings ....................................... 47 37 21 11 0 

Multi-Family in 5 or More Unit Buildings ............................. 42 33 19 9 0 

(4) For buildings that combine one or 

more building types within or between 

Tables 1 and 2, area-weighted fossil 

fuel-generated energy consumption may 

be calculated by multiplying the floor 

area of each building type by the 

consumption value from the appropriate 

table for that building type, then 

dividing by the total floor area of the 

combined building types. 

(5) For Federal buildings that do not 

fit into any of the building type 

categories listed in Table 1 or Table 2 

of § 433.4, a baseline fossil fuelgenerated energy consumption shall be 

calculated using the Performance Rating 

Method, Appendix G of ASHRAE 

Standard 90.1–2004, as outlined in 

§ 433.5. The maximum allowable fossil 

fuel-generated energy consumption for 

the proposed design shall be calculated 

by using the following formula: 

Maximum Allowable Fossil FuelGenerated Energy Consumption = 

((Baseline Design Electricity 

Consumption × Electricity Source 

Energy Factor × Electricity Fossil 

Fuel-Generation Ratio) + Baseline 

Design Direct Fossil Fuel 

Consumption) × Fossil Fuel 

Reduction Multiplier 

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Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 63417 

(6) The fossil fuel reduction 

multiplier in the formula above shall be 

taken from Table 3. 

TABLE 3—FOSSIL FUEL REDUCTION

MULTIPLIER BY FISCAL YEAR FOR

WHICH DESIGN FOR CONSTRUCTION

BEGAN

Fiscal year Reduction 

multiplier 

2012–2014 ................................ 0.45 

2015–2019 ................................ 0.35 

2020–2024 ................................ 0.20 

2025–2029 ................................ 0.10 

2030 and beyond ...................... 0.00 

(7) All building energy usage, 

including estimated receptacle and plug 

loads, must be included in the 

calculation in Table 3 of this section. 

(f)(1) Upon petition by an agency 

subject to this section, the Secretary 

may adjust the applicable numeric 

requirement in paragraph (e) of this 

section with respect to a specific 

building if: 

(i) The head of the agency designing 

the building certifies in writing that 

meeting such requirement would be 

technically impracticable in light of the 

agency’s specified functional needs for 

that building; 

(ii) The head of the agency designing 

the building demonstrates that the 

requested adjustment is the largest 

feasible reduction in fossil fuelgenerated consumption that can 

reasonably be achieved; and 

(iii) The Secretary concurs with the 

agency’s conclusion. 

(2) This adjustment shall not apply to 

the General Services Administration. 

6. Section 433.5 is revised to read as 

follows: 

§ 433.5 Performance level determination. 

(a) For new Federal commercial and 

multi-family high-rise residential 

buildings whose design for construction 

began on or after January 3, 2007, each 

Federal agency shall determine energy 

consumption levels for both the baseline 

and proposed building by using the 

Performance Rating Method found in 

Appendix G of ANSI/ASHRAE/IESNA 

Standard 90.1–2004, (incorporated by 

reference; see § 433.3), except the 

formula for calculating the Performance 

Rating in paragraph G1.2 shall read as 

follows: 

Percentage improvement = 100 × 

(Baseline building 

consumption¥Proposed building 

consumption)/(Baseline building 

consumption¥Receptacle and 

process loads) 

(b) Each Federal agency shall consider 

laboratory fume hoods and kitchen 

ventilation systems as part of the 

ASHRAE-covered HVAC loads subject 

to the 30 percent savings requirements 

in this section, rather than as process 

loads. 

(c) Subject to § 433.4(d), each Federal 

agency shall calculate the fossil fuelgenerated energy consumption of a 

proposed design by the following 

formula: 

Proposed Design Fossil Fuel-Generated 

Energy Consumption = (Proposed 

Design Electricity Consumption × 

Electricity Source Energy Factor × 

Electricity Fossil Fuel-Generation 

Ratio) + Direct Fossil Fuel 

Consumption of Proposed Design 

(d) Subject to § 433.4(d), if the fossil 

fuel-generated energy consumption of 

the proposed design is equal to or less 

than the applicable maximum allowable 

fossil fuel-generated energy 

consumption value in § 433.4(e), the 

proposed design complies with the 

fossil fuel-generated consumption 

reduction requirement in § 433.4. If the 

fossil fuel-generated energy 

consumption of the proposed design is 

greater than the applicable maximum 

allowable fossil fuel-generated energy 

consumption value in § 433.4(e), the 

proposed design does not comply with 

the fossil fuel-generated energy 

consumption reduction requirement in 

§ 433.4, and the agency must either 

modify the design until the design 

complies with the requirement, or 

request and receive approval from the 

Secretary for a downward adjustment of 

the requirement. 

PART 435—ENERGY EFFICIENCY AND 

FOSSIL FUEL-GENERATED ENERGY 

CONSUMPTION REDUCTION DESIGN 

STANDARDS FOR NEW AND MAJOR 

RENOVATIONS TO FEDERAL LOWRISE RESIDENTIAL BUILDNGS 

7. The authority citation for part 435 

continues to read as follows: 

Authority: 42 U.S.C. 6831–6832; 6834– 

6836; 42 U.S.C. 8253–54; 42 U.S.C. 7101 et 

seq. 

Subpart A—Mandatory Energy 

Efficiency and Fossil Fuel-Generated 

Energy Consumption Reduction 

Design Standards for Federal Low-Rise 

Residential Buildings 

8. The headings for part 435 and 

subpart A are revised to read as set forth 

above. 

9. Section 435.1 is revised to read as 

follows: 

§ 435.1 Purpose and scope. 

This part establishes an energy 

efficiency performance and maximum 

allowable fossil fuel-generated energy 

consumption standard for new Federal 

low-rise residential buildings, for which 

design for construction began on or after 

January 3, 2007 (except as otherwise 

indicated: fossil fuel-generated energy 

requirements are applicable one year 

after publication of the final rule, as 

required by section 305(a) of the Energy 

Conservation and Production Act, as 

amended (42 U.S.C. 6834(a)). 

Additionally, this part establishes 

certain requirements applicable to major 

renovations of Federal low-rise 

buildings, as indicated. For renovated 

buildings, those requirements apply 

only to the portions of the building or 

building systems that are being 

renovated and to the extent that the 

scope of the renovation permits 

compliance with the applicable 

requirements in this rule. Unaltered 

portions of the building or building 

systems are not required to comply with 

this rule. 

10. Section 435.2 is amended by 

adding in alphabetical order new 

definitions for ‘‘Direct fossil fuel 

consumption,’’ ‘‘District Energy System,’’ 

‘‘Electricity fossil fuel-generation ratio,’’ 

‘‘Electricity source energy factor,’’ 

‘‘Fossil fuel,’’ ‘‘Fossil fuel consumption 

for electricity generation,’’ ‘‘Fossil fuelgenerated energy consumption,’’ and 

‘‘Primary electrical energy consumption’’ 

to read as follows: 

§ 435.2 Definitions. 

* * * * * 

Direct fossil fuel consumption means 

the total fossil fuel consumption in a 

building excluding primary electrical 

energy consumption. This includes any 

fossil fuel consumption resulting from a 

district energy system used in a 

building. 

District Energy System means a 

central energy conversion plant and 

transmission and distribution system 

that provides thermal energy to a group 

of buildings (heating via hot water or 

steam, and/or cooling via chilled water). 

This definition includes only thermal 

energy systems; central energy supply 

systems that provide only electricity are 

excluded from this definition. 

* * * * * 

Electricity fossil fuel-generation ratio 

means the fraction of national U.S. 

electricity generation from fossil fuel as 

provided by the Energy Information 

Administration Electric Power report for 

the appropriate year. 

Electricity source energy factor is the 

ratio of primary electrical energy 

consumed to generate and deliver 

energy to a site to the electrical energy 

consumed on site. Electricity source 

energy factor may be calculated by 

dividing the average utility delivery 

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63418 Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 

ratio in Table 6.2.4 of the DOE Building 

Energy Data Book for the appropriate 

year by 3412 to convert the value from 

Btu/kWh to kWh/kWh. 

* * * * * 

Fossil fuel means a fuel formed in the 

earth from plant or animal remains. 

Fossil fuels include coal, oil, natural 

gas, kerosene, and liquefied petroleum 

gas (LPG). 

Fossil fuel consumption for electricity 

generation means the primary electrical 

energy consumption in a building 

supplied from the national power grid 

multiplied by the electricity fossil fuelgeneration ratio. Electricity generated 

completely from non-fossil fuel sources 

or from a dedicated source not 

connected to the national power grid is 

excluded from this definition. 

Fossil fuel-generated energy 

consumption means the sum of direct 

fossil fuel consumption plus fossil fuel 

consumption for electricity generation. 

* * * * * 

Primary electrical energy 

consumption means the total amount of 

energy used to generate and deliver 

electrical energy to a building from the 

national power grid. 

* * * * * 

11. Section 435.4 is amended by 

adding new paragraphs (d), (e), and (f) 

to read as follows: 

§ 435.4 Energy efficiency performance 

standard. 

* * * * * 

(d) All Federal agencies shall design 

new Federal low-rise residential 

buildings and major renovations to 

Federal low-rise residential buildings, 

for which design for construction began 

at least one year after publication of the 

final rule, to meet the requirements of 

paragraph (e) of this section if: 

(1) The subject building is a public 

building as defined in 40 U.S.C. 3301 

and for which transmittal of a 

prospectus to Congress is required 

under 40 U.S.C. 3307; or 

(2) The cost of the building or major 

renovation is at least $2,500,000 (in 

2007 dollars, adjusted for inflation). 

(e)(1) All Federal agencies shall 

design new Federal low-rise residential 

buildings or major renovations of 

Federal low-rise residential buildings 

for which design for renovation began at 

least one year after publication of the 

final rule and that are classified in 

paragraph (d) of this section, to meet 

fossil fuel-generated energy 

consumption values equal to or lesser 

than the values shown in Table 1. The 

maximum allowable fossil fuelgenerated energy consumption values in 

Table 1 area function of housing type 

and fiscal year for which design for 

construction began. 

(2) For the purpose of this paragraph 

(e), the following definitions apply: 

(i) Manufactured home means a 

housing unit built to the Federal 

Manufactured Home Construction and 

Safety Standards in 24 CFR part 3280, 

that is built on a permanent chassis and 

moved to a site. It may be placed on a 

permanent or temporary foundation and 

may contain one or more rooms. 

(ii) Multi-family in 2–4 unit buildings 

means a unit in a building with two to 

four housing units—a structure that is 

divided into living quarters for two, 

three, or four families or households in 

which one household lives above or 

beside another. This category also 

includes houses originally intended for 

occupancy by one family (or for some 

other use) that have since been 

converted to separate dwellings for two 

to four families. This includes modular 

homes but does not include 

manufactured homes. 

(iii) Multi-family in 5 or more unit 

buildings means a unit in a building 

with five or more housing units—a 

structure that contains living quarters 

for five or more households or families 

and in which one household lives above 

or beside another. This includes 

modular homes but does not include 

manufactured homes. 

(iv) Single-family attached means a 

housing unit connected to another 

housing unit, generally with a shared 

wall, that provides living space for one 

household or family. Attached houses 

are considered single-family houses as 

long as they are not divided into more 

than one housing unit and they have an 

independent outside entrance. A singlefamily house is contained within walls 

extending from the basement (or the 

ground floor, if there is no basement) to 

the roof. Townhouses, rowhouses, and 

duplexes are considered single-family 

attached housing units, as long as there 

is no household living above another 

one within the walls extending from the 

basement to the roof to separate the 

units. This includes modular homes but 

does not include manufactured homes. 

(v) Single-family detached means a 

separate, unconnected housing unit, not 

sharing a wall with any other building 

or housing unit, that provides living 

space for one household or family. A 

single-family house is contained within 

walls extending from the basement (or 

the ground floor, if there is no 

basement) to the roof. This includes 

modular homes but does not include 

manufactured homes. 

TABLE 1—MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING TYPE, LOW-RISE

RESIDENTIAL BUILDINGS, kBtu/ft2

Building type 

kBtu/ft2 by Fiscal year for which design for construction began 

FY 2012–2014 FY 2015–2019 FY 2020–2024 FY 2025–2029 FY2030 and 

beyond 

Single-Family Detached ....................................................... 27 21 12 6 0 

Single-Family Attached ........................................................ 30 23 13 7 0 

Multi-Family in 2–4 Unit Buildings ....................................... 47 37 21 11 0 

Multi-Family in 5 or More Unit Buildings ............................. 42 33 19 9 0 

Manufactured Homes ........................................................... 52 40 23 12 0 

(3) For Federal buildings that do not 

fit into any of the building type 

categories listed in Table 1 of § 435.4, a 

baseline fossil fuel-generated energy 

consumption shall be calculated using 

the Simulated Performance Alternative 

outlined in § 435.5. The maximum 

allowable fossil fuel-generated energy 

consumption for the proposed design 

shall be calculated by using the 

following formula: 

Maximum Allowable Fossil FuelGenerated Energy Consumption = 

((Baseline Design Electricity 

Consumption × Electricity Source 

Energy Factor × Electricity Fossil 

Fuel-Generation Ratio) + Baseline 

Design Direct Fossil Fuel 

Consumption) × Fossil Fuel 

Reduction Multiplier 

(4) The fossil fuel reduction 

multiplier in the formula above shall be 

taken from Table 2. 

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Federal Register / Vol. 75, No. 199 / Friday, October 15, 2010 / Proposed Rules 63419 

TABLE 2—FOSSIL FUEL REDUCTION

MULTIPLIER BY FISCAL YEAR FOR

WHICH DESIGN FOR CONSTRUCTION

BEGAN

Fiscal year Reduction 

multiplier 

2012–2014 ................................ 0.45 

2015–2019 ................................ 0.35 

2020–2024 ................................ 0.20 

2025–2029 ................................ 0.10 

2030 and beyond ...................... 0.00 

(5) All building energy usage, 

including estimated receptacle and plug 

loads, must be included in the 

calculation in Table 2 of this section. 

(f)(1) Upon petition by an agency 

subject to this section, the Secretary 

may adjust the applicable numeric 

requirement in paragraph (e) of this 

section with respect to a specific 

building, if: 

(i) The head of the agency designing 

the building certifies in writing that 

meeting such requirement would be 

technically impracticable in light of the 

agency’s specified functional needs for 

that building; 

(ii) The head of the agency designing 

the building demonstrates that the 

requested adjustment is the largest 

feasible reduction in fossil fuelgenerated consumption that can 

reasonably be achieved; and 

(iii) The Secretary concurs with the 

agency’s conclusion. 

(2) This adjustment shall not apply to 

the General Services Administration. 

12. Section 435.5 is revised to read as 

follows: 

§ 435.5 Performance level determination. 

(a) For new Federal low-rise 

residential buildings whose design for 

construction started on or after January 

3, 2007, each Federal agency shall 

determine energy consumption levels 

for both the baseline building and 

proposed building by using the 

Simulated Performance Alternative 

found in section 404 of the ICC 

International Energy Conservation Code, 

2004 Supplement Edition, January 2005 

(incorporated by reference; see § 435.3). 

(b) Subject to § 435.4(d), each Federal 

agency shall calculate the fossil fuelgenerated energy consumption of a 

proposed design by the following 

formula: 

Proposed Design Fossil Fuel-Generated 

Energy Consumption = (Proposed 

Design Electricity Consumption × 

Electricity Source Energy Factor × 

Electricity Fossil Fuel-Generation 

Ratio) + Direct Fossil Fuel 

Consumption of Proposed Design 

(c) Subject to § 435.4(d), if the fossil 

fuel-generated energy consumption of 

the proposed design is equal to or less 

than the applicable maximum allowable 

fossil fuel-generated energy 

consumption value in § 435.4(e), the 

proposed design complies with the 

fossil fuel-generated energy 

consumption reduction requirement in 

§ 435.4. If the fossil fuel-generated 

energy consumption of the proposed 

design is greater than the applicable 

maximum allowable fossil fuelgenerated energy consumption value in 

§ 435.4(e), the building does not comply 

with the fossil fuel-generated energy 

consumption reduction requirement in 

§ 435.4, and the agency must either 

modify the design until the design 

complies with the requirement, or 

request and receive approval from the 

Secretary for a downward adjustment of 

the requirement. 

[FR Doc. 2010–25852 Filed 10–14–10; 8:45 am] 

BILLING CODE 6450–01–P 

SMALL BUSINESS ADMINISTRATION 

13 CFR Part 115 

RIN 3245–AG14 

Surety Bond Guarantee Program; 

Timber Sales 

AGENCY: Small Business Administration. 

ACTION: Proposed rule. 

SUMMARY: The Small Business 

Administration (SBA) proposes to 

amend its Surety Bond Guarantee 

Program rules to guarantee performance 

bonds for timber sale contracts awarded 

by the Federal Government or other 

public or private landowners. 

DATES: Comments must be received on 

or before November 15, 2010. 

ADDRESSES: You may submit comments, 

identified by RIN 3245–AG14, by any of 

the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Mail: Office of Surety Guarantees, 

Suite 8600, 409 Third Street, SW., 

Washington, DC 20416. 

Hand Delivery/Courier: Office of 

Surety Guarantees, 409 Third Street, 

SW., Washington, DC 20416. 

SBA will post all comments on http:// 

www.regulations.gov. If you wish to 

submit confidential business 

information (CBI) as defined in the User 

Notice at http://www.regulations.gov, 

please submit information to Ms. 

Barbara Brannan, Special Assistant, 

Office of Surety Guarantees, 409 Third, 

Street, SW., Washington, DC 20416 or 

send an e-mail to 

Barbara.brannan@sba.gov. Highlight the 

information that you consider to be CBI 

and explain why you believe SBA 

should hold this information as 

confidential. SBA will review the 

information and make the final 

determination whether it will publish 

the information. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Barbara Brannan, Office of Surety 

Guarantees, 202–205–6545, e-mail: 

Barbara.brannan@sba.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background Information 

The Forest Service of the U.S. 

Department of Agriculture (USDA) 

manages the National Forest System, 

and may permit the harvesting of timber 

on National Forest System lands in 

exchange for the payment of an agreed 

upon sum of money. More information 

on that program is available at the Web 

site of the USDA Forest Service at 

http://www.fs.fed.us. Under regulations 

issued by the Forest Service, these 

timber sale contracts may require the 

purchaser to furnish a performance 

bond for satisfactory compliance with 

the contract terms. 36 CFR 223.35. 

Generally, the Performance Bond, as 

defined in 13 CFR 115.10, ensures that 

the Principal, as defined in 13 CFR 

115.10, complies with all contract terms 

and conditions associated with forest 

management, such as the protection of 

natural resources, soil, water, erosion 

control, and road maintenance, as well 

as to ensure the Principal does not cut 

any trees that are expressly excluded 

from harvesting in the contract. In the 

process of cutting and transporting the 

logs, for example, forest roads may be 

damaged and the Principal is 

responsible for repairing the roads. The 

performance period for most timber sale 

contracts ranges from one to three years, 

and some can exceed five years. 

With respect to a Performance Bond 

involving the sale of timber on land 

managed by USDA, the Federal 

Government is the Obligee, as defined 

in 13 CFR 115.10, and the purchaser of 

the timber is the Principal. Unlike the 

typical contract for supplies or services 

where the Obligee pays the Principal for 

providing supplies or rendering 

services, the Principal in the timber sale 

contract is paying the Obligee for the 

right to cut the designated trees. 

However, under the definition of 

‘‘Contract’’ in 13 CFR 115.10, a contract 

for which SBA may issue a Surety Bond 

Guarantee cannot include a contract 

requiring any payment by the Principal 

to the Obligee. Thus, SBA cannot 

presently guarantee a bond for a timber 

sales contract. 

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