1

[6450-01-P]

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: Supplemental notice of proposed rulemaking.

SUMMARY: The Energy Conservation and Production Act (ECPA), as amended by the Energy 

Independence and Security Act of 2007, requires DOE to establish revised performance 

standards for the construction of new Federal buildings, including commercial buildings, multifamily high-rise residential buildings and low-rise residential buildings. On October 15, 2010, 

DOE issued a Notice of Proposed Rulemaking (NOPR) to establish regulations implementing the 

fossil fuel-generated energy provisions of the ECPA performance standards for Federal 

buildings. In response to the NOPR, DOE received a number of comments expressing concern 

and encouraging DOE to re-examine the proposed regulations. In response to these comments, 

DOE has identified additional areas for clarification and consideration that would benefit from 
2

further public comment. In this notice, DOE responds to the comments received on the NOPR 

and identifies and seeks comment on additional approaches to the scope of the requirements in 

the context of major renovations, the potential use of renewable energy certificates for 

compliance, and a streamlined process for agencies to seek a downward adjustment from the 

required reduction levels, particularly for major renovations. 

DATES: Public comments on this supplemental proposed rule will be accepted until [INSERT 

DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].

ADDRESSES: 

This rulemaking can be identified by docket number EERE-2010-BT-STD-0031 and/or RIN 

number 1904-AB96.

Docket: The docket is available for review at http://www.regulations.gov including Federal 

Register Notices, public meeting attendee lists, transcripts, comments and other supporting 

documents/materials. All documents in the docket are listed in the http://www.regulations.gov

index. 

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-STD0031and/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-
3

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: For technical issues, contact Sarah Jensen, 

U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building 

Technologies Program, EE-5F, 1000 Independence Avenue, SW, Washington, DC 20585-0121, 

(202) 287-6033, e-mail: Sarah.Jensen @ee.doe.gov. For legal issues, contact 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-
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Tardy@hq.doe.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction

A. Authority

B. Background

II. Summary of the Proposed Rule

III. General Discussion and Response to Comments

A. Overview

B. Scope of the Proposed Rule

1. Determining the $2.5 Million Threshold for Applicability 

2. Compliance Date 

3. Major Renovations

4. Multiple Buildings

5. Leased Buildings

6. Federal Buildings Overseas 

7. Residential Buildings

8. Privatized Military Housing

9. Coordination With Rulemaking on Sustainable Design Practices

10. Other

C. Establishing and using the Baseline

1. CBECS and RECS Baselines

2. Climate Adjustment

3. Plug and Process Loads

4. Differentiate Between Fossil Fuels

5. Regional Fossil Fuel Factors

6. Marginal Source of Electricity

7. Residential Common Areas

8. Major Renovations

9. Other

D. Methodology to Determine Compliance

1. Whole Building Simulation

2. Off-Site and On-Site Renewable Energy

3. Use of Source Energy

4. Fuel Conversion Efficiency

5. On-site Energy Generation from Natural Gas

6. Additional Review

7. Other

E. Petitions for Downward Adjustment

1. Technical Impracticability and Cost as a Basis for Downward Adjustment

2. Bundling of Petitions

3. DOE Review Process
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4. Information Required in Petitions

5. Downward Adjustments for Major Renovations

6. Make Information Publicly Available

7. Narrow the Use of Petitions

8. GSA-Tenant Agencies

9. Other

F. Impacts of the Rule

1. Cost Impacts

2. Other Impacts

G. Guidance and Other Topics

1. Training

2. Verification and Monitoring

IV. Reference Resources

V. Procedural Issues and Regulatory Review

I. Introduction

A. Authority

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 2007) amended section 305 of 

ECPA and directed DOE to establish regulations that require fossil fuel-generated energy 

consumption reductions for certain new Federal buildings and Federal buildings undergoing 

major renovations. (42 U.S.C. 6834(a)(3)(D)(i)) The fossil-fuel generated energy consumption 

reductions only apply to Federal buildings that: (1) are “public buildings” (as defined in 40 

U.S.C. 3301) 1 with respect to which the Administrator of General Services is required to 

 

1

Under 40 U.S.C. 3301(5), "public building" is a building, whether for single or multitenant occupancy, and its 

grounds, approaches, and appurtenances, which is generally suitable for use as office or storage space or both by one 

or more Federal agencies or mixed-ownership Government corporations.

"Public building" includes Federal office buildings, post offices, customhouses, courthouses, appraisers stores, 

border inspection facilities, warehouses, record centers, relocation facilities, telecommuting centers, similar Federal

facilities, and any other buildings or construction projects the inclusion of which the President considers to be 
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transmit a prospectus to Congress under 40 U.S.C. 33071; or (2) those that cost at least 

$2,500,000 in costs adjusted annually for inflation. (42 U.S.C. 6834(a)(3)(D)(i))

For these buildings, Section 305 of ECPA, as amended by EISA 2007, mandates that the 

buildings be designed so that a building’s fossil fuel-generated energy consumption 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 DOE’s Energy Information Administration) 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)) 

In addition, upon petition by an agency subject to the statutory requirements, ECPA, as 

amended by EISA 2007, permits DOE 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 

 

justified in the public interest.

The definition does not include a buildingor 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.

1

40 U.S.C. 3307 describes the minimum construction, alteration and lease costs that would trigger a prospectus to 

Congress. 
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conclusion. (42 U.S.C. 6834(a)(3)(D)(i)(II)) Such an adjustment does not apply to GSA. (42 

U.S.C. 6834(a)(3)(D)(i)(II)) (In the remainder of today’s rulemaking, all references to ECPA 

refer to the statute as amended through EISA 2007.)

B. Background

Today’s document is a supplemental notice of proposed rulemaking to amend certain 

portions of 10 CFR parts 433 and 435, the regulations governing energy efficiency in Federal 

buildings. The Notice of Proposed Rulemaking (NOPR) was published on October 15, 2010. 75 

FR 63404. The public meeting was held on November 12, 2010, and public comments were 

accepted through December 14, 2010. DOE received a number of comments expressing concern 

and encouraging DOE to re-examine the proposed regulations1. In response to these comments, 

DOE has identified additional areas for clarification and consideration that would benefit from 

further public comment. In this notice, DOE responds to the comments received on the NOPR 

and identifies and seeks comment on additional approaches to the scope of the requirements in 

the context of major renovations, the potential use of renewable energy certificates for 

compliance, and a more streamlined process for agencies to seek a downward adjustment from 

the reduction levels. 

DOE is in the process of addressing other requirements for Federal buildings mandated in 

ECPA, as amended by section 433 of EISA. DOE published a proposed rule on sustainable 

design standards for new Federal buildings and major renovations on May 28, 2010 (75 FR 

 

1 Complete contents of the docket folder may be found at http://www.regulations.gov/#!docketDetail;D=EERE2010-BT-STD-0031. 
8

29933) (the “Sustainable Design NOPR”), which also proposed to amend certain portions of 10 

CFR parts 433 and 435. (Docket No. EE-RM/STD-02-112, RIN 1904-AC13) Since that time, 

the green building certification portion of the Sustainable Design NOPR has been finalized. See 

INSERT FR CITE 

DOE received a number of comments on the scope of the EISA 2007 amendments both 

in the context of this rulemaking and in response to the Sustainable Design NOPR. DOE 

addresses both sets of comments in today’s rulemaking.

II. Summary of Today’s Proposed Rule

Today’s supplemental notice of proposed rulemaking (SNOPR) addresses requirements for 

new construction and major renovations of Federal commercial and high-rise residential 

buildings, as well as Federal low-rise residential buildings. The following is an overview of each 

section of today’s SNOPR, including any relevant changes from the proposal as provided in the 

October 15, 2010 NOPR. (75 FR 63404; “2010 Proposed Rule”)

A. Regulatory Scheme

In today’s rule, DOE is proposing to address the contents of Subpart B of both 10 CFR parts 

433 and 435 – the fossil fuel-generated energy consumption requirements. 

In addition, today’s rule proposes to amend the term “life-cycle cost-effective” to tie the 

definition of life-cycle cost-effectiveness closer to the four life cycle cost methodologies set out 
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in subpart A of 10 CFR part 436.

B. Overall Basis for the Rulemaking 

The underlying requirements for today’s rulemaking are based on the requirements in Section 

433 of EISA 2007. The statute requires that covered Federal buildings 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 in fiscal year 2003 (as measured by Commercial 

Buildings Energy Consumption Survey or Residential Energy Consumption Survey data from 

DOE’s Energy Information Administration), by the percentage specified in the following table:

Fiscal Year Percentage Reduction

2010 ............................................................................. 55

2015 ............................................................................. 65

2020 ............................................................................. 80

2025 ............................................................................. 90

2030 .......................................................................... 100.

As discussed later in this document, DOE believes that the current energy efficiency 

requirements applicable to the design of new Federal buildings, when compared to the energy 

efficiency of the baseline buildings, would result in a substantial level of compliance with the 55 

percent and 65 percent reduction levels. 

C. Covered Buildings
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The proposed rule would apply to certain new Federal buildings, and major renovations 

to Federal buildings, as specified in section 433 of EISA 2007. By statute, the term “Federal 

building” means any building to be constructed by, or for the use of, any Federal agency, 

including buildings built for the purpose of being leased by a Federal agency, and privatized 

military housing. (42 U.S.C. 6832(6)) 

Today’s proposed rule only would apply to new Federal buildings and major renovations 

to Federal buildings covered by EISA 2007. Federal buildings covered by EISA 2007 include 

new Federal buildings, or major renovations to Federal buildings, that are also: (1) public 

buildings, as defined in 40 U.S.C. 3301 for which a transmittal of a prospectus to Congress is 

required under 40 U.S.C. 3307; or (2) Federal buildings for which the construction cost or major 

renovation cost is at least $2,500,000 (2007 dollars, adjusted for inflation). This subset of 

buildings and major renovations will be referred to as EISA-covered buildings in this Notice. 

D. Definitions

Today’s rulemaking contains definitions for “combined heat and power (CHP) system,”

“district energy system,” “fiscal year,” “major renovation,” “power purchase agreement (PPA),”

“proposed building,” and “renewable energy certificate.”

Today’s rulemaking also proposes to define 16 categories of commercial buildings and one 

category of multi-family high-rise residential buildings in 10 CFR part 433 and one category of 
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low-rise residential buildings in 10 CFR part 435. The 16 categories of commercial buildings 

proposed are education, food sales, food service, health care (inpatient), health care (outpatient), 

laboratory, lodging, mercantile (enclosed and strip shopping malls), office, public assembly, 

public order and safety, religious worship, retail (other than mall), service, and warehouse and 

storage. Many of these commercial building categories are further divided into building types. 

The single category of low-rise residential buildings is divided into five building/activity types:

manufactured homes, multi-family in 2-4 unit buildings, multi-family in 5 or more unit 

buildings, single-family attached, and single-family detached. These building categories and 

building types represent the high-level principal building activity and low-level principle 

building activity categories in the 2003 Commercial Building Energy Consumption Survey 

(CBECS).

1

 

E. Fossil Fuel-Generated Energy Consumption Requirements

For buildings for which design for construction begins in the fiscal years 2013 to 2029, tables

of the proposed maximum allowable fossil fuel-generated energy consumption by building type 

and climate zone are provided. The proposed values in the tables come from DOE’s Energy 

Information Administration (EIA) CBECS (for commercial buildings) and RECS (for multifamily high-rise and low-rise residential buildings), both of which are converted from site energy 

consumption to source energy consumption. The building types in the tables in Appendix A to 

today’s proposed rule are subsets of the building categories discussed above. 

 

1 The CBECS principle building types and subcategories are described at 

http://www.eia.gov/consumption/commercial/building-type-definitions.cfm. This rulemaking is based on the 

subcategories shown in this link. 
12

The CBECS and RECS data was parsed into the 16 climate zones used in the current Federal

baseline standards for commercial and multi-family high-rise residential buildings, which rely on 

ANSI/ASHRAE/IESNA Standard 90.1.

For buildings that combine two or more building types, area-weighted averaging by square 

footage for each building type would be used to calculate the maximum allowable fossil fuelgenerated energy consumption of the combined building. For building types dominated by 

process loads, as defined in 10 CFR 433.2, and that are not listed in CBECS, the regulations 

would require the use of the CBECS building type that most closely matches the building 

without the process load and then accounting for the process load in the calculation. For these 

buildings, process loads would be accounted for, but are not subject to the percentage reductions 

in fossil fuel-generated energy consumption required for the building related loads. 

For major renovations that are less than whole building renovations (system or component 

level retrofits) DOE is proposing that the maximum allowable fossil fuel-generated energy 

consumption in fiscal years 2013 through 2029 be based on a percentage of the whole building 

energy consumption represented by the renovated system or component. 

For buildings for which design for construction begins in fiscal year 2030 or beyond, the 

fossil fuel-generated energy consumption of the building would be required to be zero for all 

building types and climate zones, based on the calculation established in the regulations. 
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F. Fossil Fuel-Generated Energy Consumption Determination

To determine compliance with the fossil fuel reductions, agencies would be required to

estimate the fossil fuel-generated energy consumption of their proposed building design and 

compare that estimate to the allowable fiscal year percentage reduction target. DOE has proposed

a calculation to make this estimated fossil fuel-generated energy consumption for the proposed 

building. 

Fundamentally, the calculation would add the fossil fuel component of the electricity used by 

the building to the direct fossil fuels used by the building. To calculate the fossil fuel component 

of the electricity used by the building, agencies would be required to first estimate the amount of 

electricity used by the building in accordance with the Performance Rating Method in Appendix 

G of ASHRAE Standard 90.1-2010. Any electricity produced from a renewable energy or CHP 

system would not count towards the site electricity consumption in the baseline or the current 

calculated level. This figure would then be multiplied by the fossil fuel generation factor

(calculated at 0.71 for the 2003 base year and also for 2012, the latest year of data available 

from EIA) to account for the percentage of electricity in the U.S. that is generated from fossil 

fuel.1 FEMP will publish updates to the fossil fuel generation factor annually on the FEMP 

website2so that agencies can use the most recent value in their calculations. The adjusted site 

electricity estimate would then be converted to source electricity by dividing it by the national 

 

1 The fossil fuel generation factor of 0.71 is derived from Table 3.2.A of the Energy Information Administration 

(EIA) 2012 Electric Power Annual Report (http://www.eia.gov/electricity/annual/html/epa_03_02_a.html). 

Specifically, the number is developed by summing the annual electricity produced by coal, petroleum liquids, 

petroleum coke, natural gas, and other gas and then dividing the sum by the total electricity produced. 0.71 is the 

value of this factor in 2003 and in 2012, but the value has changed over time and is expected to vary in the future as 

new sources of renewable energy come online. 

2

 http://energy.gov/eere/femp/federal-energy-management-program 
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average electricity source energy factor of 0.316 to account for fuel conversion and transmission 

and distribution losses. To this would be added the direct fossil fuel consumption for fuels other 

than electricity, adjusted for distribution and other losses that occur between delivery to the fuel 

provider and final delivery to the site with the other fuels source energy multiplier. The other 

fuels energy source multiplier would not include losses associated with the production, 

harvesting, refining, or transportation of bulk fuels. The result would then be divided by the floor 

area of the building and converted to thousands of British thermal units per square foot 

(kBtu/sq.ft.)

For major renovations that are less than whole building renovations (system or component 

level retrofits) DOE proposes to base the subject fossil fuel-generated energy consumption on the 

system or component as retrofitted. 

Electricity produced from renewable energy would qualify as a deduction to the extent that it 

represents new electric generating capacity or a new renewable energy obligation on the part of 

the agency, and not a reassignment of existing capacity or obligations. The regulations would 

establish criteria for on-site renewable electricity generation and off-site renewable electricity 

generation (including generation represented by Renewable Energy Certificates) to help clarify 

these terms and the limits on how this generation may be used as a deduction from the proposed 

building electricity consumption. DOE has also proposed a clarification as to how electricity 

associated with district heating or cooling systems, district chilled water, and CHP systems 

would be treated. 
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G. Petitions for Downward Adjustment

Under the provision of Section 433 of EISA 2007 and as proposed, agencies other than GSA 

(but including GSA-tenant agencies with significant control over building design) would be able 

to petition DOE for an adjustment to the fossil fuel requirement with respect to a specific 

building if meeting the requirement is technically impracticable in light of the agency’s 

functional needs for the building. Today’s proposed rule provides a list of what information

would be required to be included in a petition for a downward adjust for a new building. This

includes a description of the building and associated components and equipment, an explanation 

of why compliance with the requirements is technically impracticable in light of the functional 

needs of the building, a demonstration that all cost-effective energy efficiency and on-site 

renewable energy measures were included in the building design, and a description of measures 

that were evaluated but rejected. As proposed, the Director of the Federal Energy Management 

Program would review the petition and make a decision on the petition within 90 days of 

submittal. 

Additionally, today’s rulemaking proposes separate, streamlined downward adjustment 

processes for major renovations that are whole building renovations and for major renovations 

that are system or component level retrofits. The streamlined processes recognize the constraints 

on compliance inherent with major renovations, e.g., building site and orientation cannot be 

changed and configuration of the building shell is likely difficult, if not technically 

impracticable, to adjust. Under today’s proposal, upon application, a Federal agency with a 

major renovation that is a whole building renovation would receive a downward adjustment 
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equal to the energy efficiency level that would be required under the Federal building energy 

efficiency standards were the building a new building (i.e., the ASHRAE 90.1 and IECC 

requirements applicable to commercial and residential new Federal buildings, respectively). 

Upon application, a major renovation that is limited to a system or component level retrofit 

would receive a downward adjustment equal to the energy efficiency level that would be 

achieved through the use of products that represent a level of energy efficiency that is life-cycle 

cost-effective if such products are commercially available. This would be demonstrated through 

the use of ENERGY STAR or FEMP-designated products, or products that meet the applicable 

prescriptive requirements under ASHRAE 90.1 or the IECC. 

B. Summary of the Differences between the 2010 Proposed Rule and Today’s Proposed 

Rule

In today’s proposed rule, the Department makes a number of substantial changes from the

2010 proposed rule. The changes apply to both 10 CFR part 433 and 10 CFR part 435 unless 

otherwise noted. Details of these changes with a discussion of each are described in Section III. 

Today’s proposed rule would:

 Add definitions for combined heat and power (CHP) system, proposed building, 

proposed building site electricity consumption, direct fossil fuel consumption of proposed 

building, district energy system, electricity source energy factor, fiscal year, floor area, 

fossil fuel generation factor, other fuels source energy multiplier, power purchase 
17

agreement (PPA), renewable energy certificates and renewable energy and CHP 

electricity deduction. 

 Delete definitions for fossil fuel, fossil fuel consumption for electricity generation, and 

primary electrical energy consumption.

 Amend definitions for direct fossil fuel consumption, district energy system, electricity 

source energy factor, fossil fuel generation factor, and major renovation. 

 Clarify applicability of the rule to major renovations.

 Clarify applicability of the rule to leased facilities.

 Replace the proposed maximum allowable fossil fuel-generated energy consumption 

tables with new tables adjusted for each of DOE’s 16 climate zones and covering 

additional commercial building types. 

 Consider an approach to determine required fossil fuel-generated energy consumption 

levels for major renovations that are limited to system or component level retrofits.

 Delete the Performance Rating Method in Appendix G of ASHRAE Standard 90-1.2004 

and the IECC Simulated Performance Alternative as the means to calculate a baseline for 

building types not listed in the Commercial Buildings Energy Consumption Survey 

(CBECS) and the Residential Energy Consumption Survey (RECS), respectively. The 

expansion of building types would eliminate the need to develop alternative baselines.

 Include an alternative compliance method for buildings with process loads that are not 

included in CBECS and RECS. Clarifies that process loads of building types not included 

in CBECS are not subject to the fossil fuel reductions. 
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 Clarify performance level determination. Modify the calculation methodology and 

specify the electricity source factor and the fossil fuel generation factor to be used. Add a 

source energy multiplier for other fuels.

 Specify what qualifies as a renewable energy and CHP deduction, including renewable 

energy produced off-site by the agency, renewable energy acquired pursuant to a power 

purchase agreement, Renewable Energy Certificates and a pro-rated share of the 

electricity produced from a CHP system. Specify that renewable energy production must 

be additive, that it must be tracked, and that the renewable energy attributes must be 

retained. 

 Clarify how district heating and cooling systems and combined heat and power systems 

are to be considered in determining compliance with the fossil fuel reductions.

 Move the discussion of petitions for downward adjustment into its own subsection. 

 Allow GSA-tenant agencies to submit a petition for downward adjustment.

 Add information to be included in petitions for downward adjustment for new buildings, 

including a demonstration that all energy efficiency measures and on-site renewable 

energy measures that are life-cycle cost-effective have been included in the design; a 

description of technologies that were evaluated and rejected, including a justification for 

why they were rejected; and a description of the building and building energy-related 

features.

 Provide an address to which petitions must be submitted and clarify that DOE would

respond to petitions within 90 days.

 Provide streamlined processes for Federal agencies to petition for a downward 

adjustment for major renovations. 
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III. General Discussion of Comments

A. Overview

DOE received comments from 22 different entities. In addition, 10,677 form letters were 

received in a campaign coordinated by Earthjustice, some of which included unique comments 

(hereinafter referred to collectively as “Form Letters.”) 

The comments were analyzed and categorized into six major categories: Applicability, 

Baseline, Methodology, Impacts, Petition for Downward Adjustment, and Guidance. Each of 

these major categories was subdivided into at least four subcategories, leading to the final 

comment categorization shown below.

Applicability: costs to determine $2.5 million threshold; the effective date of the rule; definition 

of major renovations; applicability to single or multiple buildings; treatment of leased buildings 

and mixed use buildings; Federal buildings overseas; residential building categories; privatized 

military housing; coordination with the DOE rulemaking on sustainable design practices; and 

other.

Baseline: CBECS and RECS baseline; climate adjustment; whole building simulation; buildings 
20

with energy-intensive process loads not covered in CBECS and RECS; plug and process loads; 

differentiation between fossil fuels; differentiation of electric power mix by region; using the 

marginal source of electricity; treatment of residential common areas; and other. 

Methodology: additional rounds of review of the rule; off-site renewable energy; source versus 

site energy; on-site energy generation; fuel conversion efficiency; and other.

Impacts: cost impacts and other.

Petition for downward adjustment: bundling of petitions; costs as grounds for a petition; DOE 

review process; information in petitions; public availability of petitions; stringency of petition 

requirements; GSA-tenant agencies; and consideration of technical impracticability.

Guidance: training and verification and monitoring.

Most of the issues are the same for both commercial buildings (including multi-family 

residential buildings four stories or more) and residential buildings. Therefore, the discussion 

below applies to both building categories unless otherwise noted. 

B. Scope and Applicability of the Proposed Rule

This section discusses the scope, or applicability, of the rule as proposed in response to 

comments received to date. This section provides preliminary responses related to: (1) what 
21

costs should be considered when calculating whether a construction project meets the $2.5 

million threshold in EISA 2007; (2) when the rule goes into effect; and (3) which new 

construction and major renovation projects are covered by today’s rule. 

1. Determining the $2.5 Million Threshold for Applicability of the Rule

As noted above, the proposed rule would apply to new Federal buildings and major 

renovations to Federal buildings that are: (1) “public buildings” as defined by 40 U.S.C. 3301 

for which a prospectus to Congress is required under 40 U.S.C. 3307; or (2) buildings with 

construction or renovation costs of at least $2.5 million in costs adjusted annually for inflation. 

(42 U.S.C. 6834(a)(3)(D)(i)) (These buildings are collectively referred to as “EISA-covered 

buildings” in this Notice.) DOE notes that the ECPA definition of “Federal building” was 

revised by EISA 2007. DOE is addresses this definition and the regulatory definition of “new 

Federal building” in today’s rulemaking. ECPA, as amended, defines “Federal building” to 

mean any building to be constructed by, or for the use of, any Federal agency including buildings 

built for the purpose of being leased by a Federal agency, and privatized military housing. (42 

U.S.C. 6832(6)) 

DOE requested comments in the NOPR specifically on the definition of construction 

costs to determine which buildings meet the $2.5 million threshold and would be subject to the 

fossil fuel reduction requirements. DOE noted that construction costs generally include design, 

permitting, construction (materials and labor), and commissioning costs, but that land and legal 

costs generally would not be included. 75 FR 63406. 
22

The American Gas Association (AGA) and the Department of Health & Human ServicesIndian Health Service-Office of Environmental Health, Division of Engineering Services 

(DHHS-IHS-OEHE) agreed with the proposed definition. (AGA, No. 16 at p. 41; DHHS, No. 24 

at p. 1) The Edison Electric Institute (EEI) commented that the land and legal costs could be 

very high, and that all costs should be considered in any analysis. (EEI, No. 10 at p. 2)

DOE preliminarily has decided that land and legal costs would not be included when 

determining the $2.5 million threshold. Legal costs are generally part of overhead costs, not 

construction costs. Concerning land costs, many new Federal buildings are built on land already 

owned by the Federal government. Moreover, it would be very challenging for agencies to 

determine the value of the land in these cases where there is no recent land purchase. Not

including land costs for new Federal buildings in the threshold calculation would be consistent 

with the threshold calculation for major renovations, for which land costs are not a concern.

In addition to comments specifically about land and legal costs, AGA and the National 

Propane Gas Association (NPGA) both questioned whether the cost of compliance with the fossil 

fuel consumption reductions would be included when determining whether the $2.5 million 

applicability threshold is met. (AGA, No. 17 at p. 6; NPGA, No. 23 at p. 3) NPGA also 

expressed concern that the threshold is too low. (NPGA, No. 23 at p. 3)

 

1

 Notations of this form appear throughout this document and identify statements made in written comments or at 

public hearings that DOE has received and has included in the docket for this rulemaking. For example, ‘‘AGA, No. 

16 at p. 4’’refers to a comment: (1) From the American Gas Association; (2) in document number 16 in the docket 

of this rulemaking; and (3) appearing on page 4 of the submission.
23

DOE believes that it could be difficult to separate the costs of complying with the 

requirements of this rule from other design and construction costs. Conversely, it may be 

difficult to calculate the cost of a project including the costs to comply with the fossil fuel 

reduction requirements in those instances in which an agency would be seeking a downward 

adjustment. DOE anticipates that design and constructions costs for most new Federal buildings, 

and many renovations to Federal buildings, will exceed $2.5 million. Therefore, DOE proposes

that the $2.5 million threshold does not include the cost of complying with the reductions and 

requests comment on this proposal.

2. Compliance Date of the Rule

The NOPR stated that the requirements would apply to all eligible buildings for which 

design for construction began at least one year after publication of the final rule. 75 FR 63415. 

The Department of Defense-Air Force (DOD-AF) asked that the rule apply to projects 

programmed after the date the rule is final. (DOD-AF, No. 25C at p. 3) The majority of the 

comments on this issue suggested not delaying the rule. The Natural Resources Defense Council 

(NRDC) and the Form Letters stated that the rule should be finalized and implemented 

immediately, and AGA commented that the target reductions should be promulgated as soon as 

administratively practicable. (NRDC, No. 14 at pp. 13-14; Form letter, No. 29 at p. 1; AGA, No. 

16 at p. 2) NRDC commented that the rule is already late, and recommended that “design for 

construction” be interpreted to mean the initiation of the schematic design phase. (NRDC, No. 14 

at pp. 13-14) NRDC also commented that DOE should interpret the fossil fuel-generated 

reduction tables in EISA 2007 to apply to the date of initial occupancy rather than the date that 
24

design begins. (NRDC, No. 14 at p. 15)

DOE proposes to retain the compliance date, tied to the design of the building, as 

proposed in the NOPR. Federal agencies are familiar with this date as it is consistent with the 

compliance date that DOE has used for baseline Federal building energy efficiency standards at 

10 CFR parts 433 and 435 for several years. Under 10 CFR parts 433 and 435, “design for 

construction” means the stage when the energy efficiency and sustainability details (such as 

insulation levels, HVAC (heating, ventilating, and air-conditioning) systems, water-using 

systems, etc.) are either explicitly determined or implicitly included in a project cost 

specification. Today’s proposed rule would add a closely related definition of “proposed 

building” to tie the “design for construction” definition to the fossil fuel-generated energy 

consumption determination equation in the rule. A proposed building would be the design for 

construction of a new Federal commercial, multi-family high-rise residential building, or lowrise residential building, or major renovation to such a building, proposed for construction. This 

definition was not proposed in the NOPR. DOE intends that the addition of this definition would 

help clarify terms in the fossil fuel-generated energy consumption determination equation.

3. Major Renovations

ECPA requires that fossil fuel reductions be implemented in “major renovations” to EISA 

-covered buildings. The Sustainable Design NOPR would define major renovation to include 

changes to a building that provide significant opportunities for substantial improvement in 
25

energy efficiency and renovations of any kind with costs that exceed 25 percent of the 

replacement value of the building, and requested comments on the definition. 75 FR 29942.

Because DOE had assigned the definition to the Sustainable Design Rule with the expectation 

that it would serve for both rules, DOE did not include the definition in the NOPR for this rule. 

However, this supplemental proposed fossil fuel-generated reduction rule is now being published 

prior to a final Sustainable Design rule, so DOE has modified the major renovation definition 

proposed in the Sustainable Design rule to align more closely with today’s fossil fuel-generated 

reduction supplemental proposed rule.

 Nonetheless, DOE received several comments related to major renovations for this 

rulemaking. NRDC commented that the scope of the rule should be broadened to apply to all 

new Federal buildings in order to meet the requirements of EISA 2007. (NRDC, No. 14 at p. 2) 

The American Public Gas Association (APGA) commented that the 25 percent threshold amount 

is too low. (APGA, No. 17 at p. 2) Both the Department of Defense-Navy (DOD-N) and DODAF recommended that DOE limit the rule to major renovations that cost 50 percent or more of 

the building replacement value, as that is the definition they use internally for their facilities. 

(DOD-N, No. 25B at p. 11; DOD-AF, No. 25C at p. 5) DOE also received two comments about 

renovations spanning more than one year. NRDC commented that DOE must define 

“construction project costs” to be the total planned or budgeted project costs for the renovation, 

irrespective of whether the project spans more than one fiscal year or whether the agency has yet 

to receive full funding. (NRDC, No. 14 at p. 5) APGA commented that by not including 

renovation activities that potentially could occur in future fiscal years, that energy saving capitalexpenditure renovations will be deferred to future fiscal years and could end up producing a 
26

negative net energy and greenhouse gas emissions return for renovation dollars expended. 

(APGA, No. 17 at p. 6)

Based on the comments received, DOE is proposing to not include the 25 percent cost 

limit in the definition of “major renovation.” 

Regarding the issue of renovating a Federal building in phases over more than one year,

the applicability of the requirements are again tied to the design for construction. If the cost of 

the design for construction, although performed in different phases, would trigger application of 

the fossil fuel requirements and the phases are known in advance, the fossil fuel requirements 

would apply. The construction phases should be planned such that the fossil fuel reductions are 

achieved by the time the entire project is complete.

DOE proposes to clarify how the requirements would be applied to portions of a building 

or individual systems being renovated as part of a major renovation. DOE does not intend to 

require Federal agencies to meet the fossil fuel-generated reduction requirements for an entire 

building when an agency renovation is limited to system or component level retrofits. DOE 

proposes that the fossil fuel reduction requirements apply only to the fossil fuel consumption 

associated with the portions of the building or building systems that are being renovated and only 

to the extent that the scope of the renovation provides an opportunity for compliance with the 

applicable fossil fuel-generated energy consumption reduction requirements. 

This addition to the regulatory language would direct Federal agencies to determine 

whether the extent of the renovation allows for compliance with the requirements. For example, 
27

a renovation that overhauls a major energy-consuming system (e.g., lighting, HVAC, envelope, 

etc.) is likely a major renovation subject to today’s requirements because the renovation likely 

allows for compliance with the rule. Additionally, DOE proposes to distinguish between a major 

renovation that is a whole building renovation, and a major renovation that is limited to a system 

or component level retrofit. 

As reflected in the comments received, DOE acknowledges that it would often be 

technically impracticable in light of an agency’s specified functional needs to meet the 

requirements of today’s rule during a major renovation. A major renovation could range from 

what is essentially a “gut rehab” or total replacement of all building systems without replacement 

of the building structure itself to a replacement of a single system or piece of equipment to 

replacement of several systems in a building. DOE believes that given the $2.5 million or 

“public building” threshold, the fossil fuel-generated energy consumption requirement will 

primarily apply to Federal commercial buildings. The Department notes, however, that the rule 

could apply to certain multi-family housing that costs at least $2.5 million that is built by or for 

the use of any Federal agency, including buildings built for the purpose of being leased by a 

Federal agency and privatized military housing.

With a complete whole building renovation, the building is stripped down to its structural 

elements and all new systems (including envelope, lighting, HVAC, and water heating systems) 

are installed. Generally, the designer of the renovation has less flexibility in design than the 

designer of a new building. There are also limitations on whole building renovations that may 

not be present with new construction. The geometry, orientation, and location of the building 
28

structure on the building lot are likely to be fixed. As noted, a whole building renovation is one 

in which a building is gutted to the level of its structural elements. The structural elements of the 

building should not have a major impact on the fossil fuel-generated energy consumption of the 

building. The fossil fuel reduction baseline and requirements derived from EIA’s CBECS, 

www.eia.doe.gov/emeu/cbecs, relate to entire building fossil fuel-generated energy consumption, 

not the fossil fuel consumption of individual systems. The level of fossil fuel consumption 

impacted through a whole building renovation is comparable to that consumption proposed in the 

appendices to today’s rule; i.e., both the subject energy consumption and the maximum permitted 

amount of energy consumption are at the whole building level. Therefore DOE proposes that the 

requirements and methodologies applicable to new construction would be applicable to major 

renovations that are whole building renovations. 

Major renovations that are limited to system or component level retrofits, have additional 

practical limitations for reducing fossil fuel-generated energy consumption. Based on the DOE 

Buildings Energy Databook, DOE has estimated the contribution of major energy related 

systems to a commercial building’s energy use for primary energy.

1

 

Table III.1. Contribution of Energy Use by Major Systems

Percent

Lighting 20%

Space Heating 16%

Space Cooling 15%

Ventilation 9%

Refrigeration 7%

Electronics 4%

Water Heating 4%

Computers 4%

 

1 Based on Table 3.1.4 of the DOE Buildings Energy Databook 

(http://buildingsdatabook.eere.energy.gov/TableView.aspx?table=3.1.4).
29

Cooking 1%

Other 15%

Adjust to SEDS* 5%

Total 100%

* SEDS (States Energy Data System) is used by the U.S. Energy Information Administration to 

resolve discrepancies between data sources. 

There have been improvements in the efficiencies of the systems and components as 

compared to that which was present in the buildings reported under the 2003 CBECS and 2005 

RECS databases1. A comparison of equipment efficiency changes for chillers and boilers (two 

pieces of equipment likely to be involved in a major renovation) from the original 1975 

ASHRAE Standard 90-75, Energy Conservation in New Building Design, to the present FEMPdesignated efficiency requirements for these pieces of equipment showed cooling end-use 

savings of up to 34 percent and heating end-use savings of up to 11 percent.2 The same analysis 

report shows a similar comparison for lighting indicated a potential savings of up to 52 percent 

of the lighting load if lighting power density requirements from ASHRAE 90.1-2010 were 

compared with those found in ASHRAE 90A-1980. However, many Federal buildings have 

likely already undergone some lighting renovation, so it may be unlikely that a Federal building 

still has a lighting system based on 1980 standards. Therefore, even if the subject energy use is 

limited to the energy use of the retrofitted system or component, the improvements in energy 

efficiency as compared to the systems and components in the typical CBECS building are not 

sufficient to meet the required reductions. If the impact of the efficiency improvements between 

current systems and components and those represented in CBECS is considered in the whole 

building context, a typical commercial building would realize whole building fossil fuel savings 

of 3 percent for cooling, 2 percent for heating, and 7.5 percent for lighting. 

 

1

See discussion below in Section C. Establishing and Using the Baseline. 

2

See Simulation Analyses in Support of DOE’s Fossil Fuel Rule for Single Component Equipment and Lighting 

Replacements by M Halverson and W Wang of Pacific Northwest National Laboratory at 

http://www.pnl.gov/main/publications/external/technical_reports/PNNL-22887.pdf
30

For these reasons, for major renovations that are less than whole building renovations 

(system or component level retrofits) DOE is proposing establishing the maximum allowable 

energy use in fiscal years 2013 through 2029 based on the percentage of whole building energy 

consumption represented by the retrofitted system or component. The applicable value from the 

appendices in today’s rule would be multiplied by this percentage to arrive at the maximum 

allowable energy use of the retrofitted system or component. DOE requests comment on 

whether further direction would be required on how to distinguish between a major renovation 

that is a whole building renovation and one that is a system or component level retrofit, and 

requests comment on how such a distinction could be made.

To further address issues related to major renovations, while ensuring that a fossil fuelgenerated energy reduction is attained during a renovation, today’s rulemaking would require 

both that Federal agencies achieve specified energy efficiency levels before applying off-site 

renewable energy generation and before petitioning for a downward adjustment. Again, the 

proposed rule would distinguish between whole building renovations and system and component 

level retrofits. These changes are described further in the “Off-Site and On-Site Renewable 

Energy and Renewable Energy Certificates” and “Downward Adjustments for Major 

Renovations” sections. 

4. Multiple Buildings
31

DOE received one comment from DOD-AF asking whether the $2.5 million threshold for 

applicability of the rule would apply to individual buildings or to projects which may have two 

or more buildings. (DOD-AF, No. 25C at p. 2)

DOE has preliminarily determined that the $2.5 million threshold should apply to 

individual buildings to determine if they are covered buildings under this rule. The statute 

mandates that the requirements apply to “buildings,” not “projects” or “developments.” 

5. Leased Buildings

EISA 2007 modified the ECPA definition of “Federal buildings” to include any building 

to be constructed by, or for the use of, any Federal agency. This term includes buildings built for 

the purpose of being leased by a Federal agency and privatized military housing. (42 U.S.C. 

6832(6)) In addition, the NOPR limited application of the rule to renovations of leased buildings 

to only those renovations for which a Federal agency has significant control over the renovation 

design. 75 FR 63405 

NRDC commented that there is a disconnect between the rule scope and the ECPA 

definition, which NRDC believes does not permit the exclusion of buildings that have been built 

for the purpose of being leased by a Federal agency. (NRDC, No. 14 at pp. 4-5) The U.S. Army 

Corps of Engineers-North Atlantic Division (NAD) commented that it seemed more appropriate 

to cover Federally leased buildings via the existing EISA 2007 section 435 rules, which require 

new Federal agency leases to be for ENERGY STAR labeled buildings, since existing buildings 
32

will be difficult to retrofit to meet these fossil fuel reductions. (NAD, No. 19 at p. 2) Department 

of Defense-Office of Under Secretary of Defense (DOD-OUSOD) recommended against 

applying the rule to any building whose design is not completely under the control of Federal 

agencies, and suggested that the rule should just state this principle and allow the agencies to 

apply their own judgment. (DOD-OUSOD, No. 25A at p. 1) EEI asked if there would be a 

minimum lease period. (EEI, No. 10 at p. 2)

DOE preliminarily has decided to remove the “significant control” provision for leased 

buildings covered under today’s rule because the ECPA definition of “Federal building” makes 

clear that the rule applies only to buildings built specifically for the Federal government. 

Significant control, therefore, is implicit in the definition. 

DOE is aware that compliance with today’s rule for small buildings or spaces that are 

leased for relatively short periods of time may not be possible. DOE also recognizes that at least 

two Federal agencies utilize contracts for short-term leases. Therefore, DOE requests comment 

on whether there should be a minimum lease period or a minimum rentable square footage 

threshold. 

6. Federal Buildings Overseas

The DOD-N commented that including overseas facilities in the definition of Federal 

building may lead to circumstances where the agency does not have complete control over the 

design, or where other technical factors challenge the practicality of meeting the fossil energy 
33

reductions. (DOD-N, No. 25B at p. 8) DOE recognizes that several agencies have buildings 

overseas and these buildings may be subject to a variety of legal authorities specific to that 

agency. DOE intends that the proposed rule would apply to the extent that the requirements are 

consistent with applicable law. DOE does not intend for the rule to cause any Federal agency to 

violate other legal authorities. Today’s rule does not expressly address the extent to which it 

may be applicable to buildings overseas as each individual agency is best positioned to 

understand the various and sometimes unique authorities that may be applicable to overseas 

buildings of that agency. In applying the proposed rule to any given building, Federal agencies 

must also decide whether the building meets the definition of Federal building at 42 U.S.C. 

6832(6) and either the requirement that the building be a “public building” for which a 

prospectus is required, or the requirement that the building or major renovation cost at least $2.5 

million. (42 U.S.C. 6834(a)(3)(D)(i)) For covered overseas facilities, Federal agencies should use 

the U.S. climate zone most similar to the location of the proposed building. 

7. Residential Buildings

DOE received four comments related to the definition of residential building categories. 

Lish commented that the rule definition should include housing facilities owned and managed by 

Federal agencies, such as the National Park Service, Forest Service, and other land management 

agencies. (Lish, No. 13 at p. 1) The DOD-AF requested that dormitories be removed from the 

proposed rule because of cost. (DOD-AF, No. 25C at p. 6) DHHS-IHS-OEHE believes there is 

an inconsistency between the reference to manufactured homes and mobile homes in the rule and 

in RECS. (DHHS, No. 24 at p. 3) 
34

DOE does not believe any changes to the proposed language in the NOPR are needed as a 

result of these comments. The statute requires the inclusion of all Federal buildings that are 

EISA-covered buildings. Some of the building types discussed by commenters may not meet the 

definition of “public building” at 40 U.S.C. 3301(a)(5) or may not require a prospectus to 

Congress as described at 40 U.S.C. 3307, but may meet the $2.5 million construction cost 

threshold. Some of the referenced buildings may not meet either threshold. Finally, DOE does 

not believe there would be an inconsistency between the reference to manufactured and mobile 

homes in the rule and in the RECS database. For purposes of the RECS database, manufactured 

and mobile homes are the same product. They are both defined as a housing unit built to the 

Federal Manufactured Home Construction and Safety Standards (24 CFR 3280), built on a 

permanent chassis and moved to a site. 

8. Privatized Military Housing

DOD-AF stated that DOE should clarify that the rule does not apply to privatized military 

housing because, in DOD-AF’s view, privatized military housing is not “leased by a Federal 

agency.” (DOD-AF, No. 25C at p. 2) In addition, DOD-AF is concerned that the proposed rule 

may cause many AF Privatized Housing deals that have already been closed to be canceled or 

renegotiated if they have to comply with the fossil fuel reduction requirements. (DOD-AF, No. 

25C at p. 1)

As noted above, EISA 2007 modified the ECPA definition of “Federal building” to apply 
35

to any building to be constructed by, or for the use of, any Federal agency. Such term shall 

include buildings built for the purpose of being leased by a Federal agency, and privatized 

military housing. (42 U.S.C. 6832(6)) In addition, Congress again mentioned privatized military 

housing in ECPA when it specified that, “with respect to privatized military housing, the 

Secretary of Defense, after consultation with the Secretary [of Energy] may, through rulemaking, 

develop alternative criteria to those established in subclauses (I) [fossil fuel reduction 

requirements] and (III) [sustainable design requirements] of clause (i).” (42 U.S.C. 

6834(a)(3)(D)(vi)) Although privatized military housing may not meet the definition of “public 

building” at 40 U.S.C. 3301(a)(5), the proposed rule would apply to privatized military housing 

with construction costs of at least $2.5 million. As described in this preamble, this cost threshold 

would apply on an individual building basis.

9. Other

A few miscellaneous comments were submitted regarding the scope of the rule that did 

not fit into one of the above subcategories. One comment was submitted by an anonymous 

commenter and encouraged the use of vacant buildings rather than new construction. (Anon, 

No. 27 at p. 1) There is nothing in ECPA that would prevent the reuse of vacant buildings. 

Earthjustice requested data on the number of new buildings and renovations that are 

likely and projected to be covered by this rule. (EJ, Public Meeting Transcript, at p. 69) For 

purposes of developing this supplemental proposed rule, DOE assumed that the Federal 
36

government constructs 42 million square feet of new construction per year and renovates 14.6 

million square feet per year. This assumption is based on the analysis of three years of 

construction data purchased by PNNL as part of a commercial building construction 

dataset. The data is described in “Weighting Factors for the Commercial Building Prototypes 

Used in the Development of ANSI/ASHRAE/IESNA Standard 90.1-2010”, (Jarnagin and 

Bandyopadhyay, 2010). Data from the years 2007, 2008, and 2009 were used 

Based on these analyses and assumptions, DOE expects that 44.6 million square feet of 

Federal building stock would be subject to this regulation each year. Over the next twenty years, 

DOE expects that this rulemaking would affect approximately 892 million square feet of Federal 

floor space. This represents less than 25 percent of the total Federal building stock in 2030, and 

about a quarter of one percent of the total residential and commercial building floor space in the 

U.S. in 2030.

C. Establishing and Using the Baseline

The CBECS and RECS data, which can be found at 

http://www.eia.doe.gov/emeu/cbecs/contents.html and at 

http://www.eia.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). For purposes of this rulemaking, the statute directs DOE to establish a 

baseline based on the energy consumption in similar buildings in fiscal year 2003 as measured 
37

by CBECS and RECS. 

One characteristic of buildings reported in the surveys is their age, or vintage.1 The 2003 

CBECS estimates of building vintage range from pre-1920 buildings (representing the oldest) to 

the 2000-2003 years, which are the newest buildings in the 2003 CBECS.2 An analysis of the 

CBECS data indicates that 39 percent of the surveyed buildings were constructed prior to the 

publication of a standard energy code; the first widely recognized building energy codes were 

developed and published in 1975.3 Furthermore, DOE estimates that an additional 17 percent of 

the surveyed buildings were built before the architecture and construction industry recognized 

and used ASHRAE 90-75 nationally; i.e., 1980. Therefore, an estimated 56 percent of the 

buildings surveyed were constructed prior to 1980.4 The “typical building” in the 2003 CBECS 

was likely built between 1970 and 1979. 

The ASHRAE code is revised on a three year cycle. The version of the ASHRAE code 

that is applicable to new Federal commercial buildings for which design for construction began 

on or after August 10, 2012, is ASHRAE 90.1-2007. 10 CFR 433.4(a)(2). As compared to 

ASHRAE 90-75, ASHRAE 90.1-2007 has an energy efficiency improvement of approximately 

30 percent.5 ASHRAE 90.1-2010 adds an additional energy efficiency improvement of 

 

1

http://www.eia.gov/emeu/cbecs/cbecs2003/detailed_tables_2003/2003set1/2003pdf/a1.pdf

2 Because of the criteria for buildings subject to the requirements, DOE has initially determined the proposed 

requirements would apply primarily to commercial buildings. As such, DOE has focused this discussion on 

CBECS.

3 ASHRAE Standard 90-75, Energy Conservation in New Building Design, August 1975.

4 DOE estimates that even more than 56% of the surveyed buildings would have used 90-75, since the adoption of 

the 1980 standard was delayed two years.

5

ASHRAE Journal article titled “35 Years of Standard 90.1” in March 2010. 

http://www.ashrae.org/File%20Library/docLib/Public/20100625_ASHRAEDAJ10Mar0220100301.pdf
38

approximately 18.5%.1 Although the average building in the 2003 CBECS would have been 

built to ASHRAE 90-75, it is important to note that in the course of the lives of these buildings, 

building system components have been replaced over time so that the energy consumption as 

surveyed in 2003 will not be the same energy level the building used when first constructed. 

Even so, the energy efficiency improvements that are already required for the design of new 

Federal buildings would achieve a substantial portion of the fossil fuel-generated energy 

consumption reductions required in the interim years up to FY 2020. DOE has data that would 

indicate that Federal offices in Climate Zones 1a (Miami, Florida) , 4c (Salem, Oregon), and 5a 

(Chicago, Illinois) as constructed to the requirements of the Federal baseline standard (90.1-

2010) are approximately at the 65% Fossil Fuel Reduction level for government offices. 

Buildings constructed to be 30% better than 90.1-2007 (as required in the Federal standards if 

life-cycle cost-effective) will achieve more than 65% Fossil Fuel Reduction level for government 

offices. This is especially true considering that new Federal buildings must be designed to 

achieve an energy efficiency improvement 30 percent beyond the referenced ASHARE code to 

the extent life cycle cost effective. 

The CBECS and RECS data are reported at a high level. At the highest level, the utility 

of the data is limited in terms of climate zones and building types. However, CBECS and RECS 

microdata allow additional analysis and refinement. Recognizing the importance of climate on 

building energy use, as well as the limitations in CBECS and RECS, in the NOPR, DOE asked 

several questions about refinements to the CBECS and RECS data by different categories. The 

questions included whether the baseline should be adjusted for climate, how to treat plug and 

 

1

See DOE’s final determination notice on Standard 90.1-2010 at 76 FR 64904 (October 19, 2011) or 

http://www.gpo.gov/fdsys/pkg/FR-2011-10-19/pdf/2011-27057.pdf
39

process loads, whether the rule should differentiate between fossil fuels, and whether the rule 

should include a regional adjustment to the fossil fuel component of the electric power mix. 

These and other issues are further addressed below.

1. CBECS and RECS Baselines

As previously indicated, the statute directs DOE to establish a baseline for the fossil fuelgenerated energy consumption requirements using CBECS and RECS data from fiscal year 

2003. A preliminary survey of the CBECS data indicates that the average building in the 2003 

CBECS was subject to the 1975 version of the ASHRAE building code for commercial 

buildings.1

The building type definitions for commercial buildings used in the NOPR were based 

largely on the CBECS and RECS glossaries, with minimal modifications for regulatory clarity. 

For a commercial building type not listed in CBECS, the NOPR proposed that agencies establish 

a baseline for the proposed design using the procedures in Appendix G, Performance Rating 

Method, of ASHRAE Standard 90.1-2004. For residential building types not listed in RECS, 

agencies would develop a baseline using the Simulated Performance Alternative from section 

404 of the IECC, 2004 Supplement Edition. 

DOE requested comments on the building type categories and definitions. Most of the 

comments DOE received related to how to establish a baseline for building types not listed in the 

 

1 DOE has preliminarily determined that the building criteria that determine applicability of the requirements would 

result in primarily commercial buildings being subject. As such, DOE has focused on commercial buildings.
40

tables derived from CBECS and RECS. 

The American Society of Heating, Refrigeration and Air Conditioning Engineers 

Standard 100 Revision Committee Standard (ASHRAE Standard 100 Committee) commented 

that an analysis by DOE’s Oak Ridge National Laboratory (ORNL) determined that there is 

sufficient data in CBECS to establish energy consumption targets for 48 building types, and 

recommended that the rule be modified to do so. (ASHRAE, No. 8 at p. 1) ICC and the Institute 

for Market Transformation (IMT) endorsed the uses of the CBECS and RECS databases. (ICC, 

No. 11 at p. 3; IMT, Public Meeting Transcript, No. 7 at p. 26) DHHS-IHS-OEHE supported 

DOE’s interpretation of the CBECS and RECS baselines and commented that building type 

definitions are appropriate, but requested clarification of the definition of health care (outpatient) 

facilities with diagnostic medical equipment. (DHHS, No. 24 at pp. 1, 3)

EEI agreed with use of CBECS but commented that some buildings do not neatly fall into 

a building category. (EEI, No. 10 at p. 3) AGA encouraged the Department to develop more 

detailed procedures for building types not directly represented in the CBECS and RECS data, 

and believes the Department may engage stakeholders in this analysis. (AGA, No. 16 at p. 3) 

NAD and DOD-AF commented that the CBECS and RECS data does not cover some building 

types and larger buildings of a more industrial nature, such as military buildings, and requested 

information on how these will be included. (NAD, No. 19 at p. 1; DOE-AF, No. 25C at pp. 3-4) 

Regarding the use of ASHRAE or the IECC, EEI recommended that ASHRAE 90.1-2004 

should be allowed as an alternative to the IECC 2004 Supplement for residential buildings 
41

without baseline data. (EEI, No. 10.2 Cover Letter at p. 2) Several commenters noted that there 

would be a disparity between the baselines generated from CBECS and the baselines generated 

using ASHRAE 90.1-2004. (DHHS, No. 24 at p. 4; National Nuclear Security Administration, 

No. 9 at p. 1; EEI, No. 10 at p. 3; DOD-AF, No. 25C at p. 4) The Gas Technology Institute 

(GTI) proposed that DOE amend the ASHRAE Performance Rating Method to create a single 

reference building in order to be consistent with the CBECS database methodology, noting that 

DOE’s Home Energy Score Tool methodology would be a superior approach. (GTI, No. 22 at p. 

12) NIBS supported DOE’s proposal to use Appendix G of ASHRAE Standard 90.1 and the 

IECC Simulated Performance Alternative, stating that these are probably the best alternatives to 

CBECS and RECS. However, NIBS noted there could be some issues with the quality of the 

baselines produced using these methods, and suggested certification of modelers and use of the 

COMNET protocols. (NIBS, No. 12 at p. 2)

ICC and IMT stated that the CBECS and RECS data are in need of upgrading. NIBS 

encouraged DOE to expand sample sizes and improve the surveys going forward. (NIBS, No. 12 

at pp. 1-2) DOE regularly updates and improves upon the CBECS and RECS. The versions of 

these surveys that DOE chose to use in today’s rule (2003 CBECS and 2005 RECS) were based 

on Congressional direction in EPCA. DOE chose to use 2005 RECS data because the RECS was 

conducted in 2001 and 2005 but not 2003.

DOE proposes to retain CBECS as the baseline for commercial buildings and RECS as 

the baseline for multi-family high-rise and low-rise residential buildings with one exception. In 

the NOPR, DOE proposed to include the category “multi-family in 5 or more units” in the 
42

commercial building and multi-family high-rise residential building requirements. A “multifamily high-rise residential building” is a residential building that contains three or more 

dwelling units and that is designed to be four or more stories above grade. It is possible that a 

building could have four or more stories above grade, but fewer than five units. DOE believes

that such buildings designs would be rare and would have energy consumption patterns similar to 

such buildings with five or more units. To avoid a potential gap in coverage of the building 

types, DOE proposes to use “multi-family high-rise residential building” in place of “multifamily in 5 or more units.” In addition, regarding the definition of health care (outpatient) 

facilities with diagnostic medical equipment, the reference to diagnostic equipment is from the 

current CBECS building types under which agencies have been reporting. DOE proposes that 

agencies continue to apply that term consistent with CBECS reporting.

In response to comments, DOE preliminarily has decided to use the analysis from ORNL 

for the ASHRAE Standard 100 Revision Committee to expand the CBECS data from the twelve 

building categories used in the NOPR to the 48 commercial building types used in today’s rule. 

(As noted in the NOPR, the phrases “principal building activity” and “building types” are used 

interchangeably in CBECS and RECS documents. For the sake of consistency, this document 

only uses the phrase “building type.”) While ORNL was conducting the climate adjustment for 

DOE, as DOE indicated it would conduct in the NOPR, it coordinated its work with the 

ASHRAE Standard 100 Revision Committee, which had a need for similar work. While 

developing the climate adjustment method, ORNL also developed a methodology to parse the 

CBECS and RECS microdata into more building types. As a result, as part of its public comment 

on today’s rulemaking, the ASHRAE Standard 100 Revision Committee requested that DOE use 
43

these building types. Although the reduction requirement for multi-family high-rise residential 

buildings comes from the RECS database, DOE proposes to include the requirements in the 

tables for 10 CFR part 433 to maintain the scope of coverage of part 433 versus part 435 building 

types.

2. Climate Adjustment

The maximum allowable fossil fuel-generated energy consumption values in Tables 1 

and 2 of the NOPR were based on national averages not adjusted for climate. The NOPR noted 

that 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. 75 FR 63406.

However, DOE noted that it believed a climate adjustment is necessary to provide reasonable 

baselines and, therefore, stated that DOE is developing fossil fuel-generated reduction 

requirements based on building type and then applying a climate zone as defined in the baseline 

energy efficiency standards at 10 CFR parts 433 and 435. 75 FR 63406. DOE requested 

comments on including a climate adjustment. 

Most of the comments DOE received regarding the climate adjustment were favorable. 

The ASHRAE Standard 100 Committee recommended that the maximum allowable 

consumption values for each of the CBECS and RECS building types be adjusted for each of the 

16 climate zones developed by DOE’s Pacific Northwest National Laboratory (PNNL) based on 
44

a simulation of prototype buildings meeting ASHRAE Standard 90.1-2004 developed by DOE’s 

National Renewable Energy Laboratory (NREL). (ASHRAE, No. 8 at p. 1) NIBS recommended 

utilizing the climate normalization techniques developed by EPA for the ENERGY STAR

program. (NIBS, No. 12 at p. 4) ICC states that it believes that it is sensible to take into account 

regional climate variations, such as those recognized in the International Energy Conservation 

Code. (ICC, No. 11 at p. 2) DHHS-IHS-OEHE and the American Institute of Architects (AIA) 

urged DOE to consider regional and climatic factors, and DHHS-HIS-OEHE suggested using the 

climate zones identified in ASHRAE 90.1 and IECC. (DHHS, No. 24 at p. 1; AIA, No. 15 at p. 

2) GTI recommended the DOE Home Energy Score Tool used for existing home ratings. (GTI, 

No. 22 at p. 11) The National Park Service, Alaska Region (NPS-Alaska), recommended an 

alternative table of Alaskan climate zones. (NPS-Alaska, No. 6, p. 1) EEI questioned how the 

adjustments are going to be calculated to address the limitations of the CBECS and RECS data. 

(EEI, No. 10 at p. 3) AGA commented that a climate adjustment is logical for some loads, such 

as space conditioning, but requested more information about DOE’s methodology. (AGA, No. 16 

at p. 4)

DOE proposes to include a climate adjustment. A climate adjustment places buildings in 

different climates on a more level-playing field. Under the proposed climate adjustments, 

buildings would have to achieve reductions commensurate to a baseline appropriate for their 

climate zone rather than a national average baseline. As a result, buildings in cold climates 

would have a higher target to account for the increased energy use associated with a cold 

climate, and buildings in warmer climates would have a lower target. This approach would 

ensure that buildings in both cold and warm climates achieve 55 percent reductions based on a 
45

climate-adjusted baseline, rather than the building in the cold climate having to achieve a deeper 

percentage reduction and a building in a warm climate having to achieve a lesser percentage 

reduction to meet the same absolute target based on a national average. 

For example, assuming a CBECS or RECS national average baseline fossil fuel use 

equals 100 kBtu/sq.ft. for a given building, at a 55 percent reduction for FY 2010-14, the target 

fossil use becomes 45 kBtu/sq.ft. However, a building in a cold climate may actually use more 

than the national average, perhaps 150 kBtu/sq.ft. The same building in a warm climate may 

actually use less, perhaps 50 kBtu/sq.ft. To meet the 55 percent reduction for the FY 2010-14 

national average target of 45 kBtus/sq.ft. without a climate adjustment, a building in a cold 

climate must achieve a reduction of 105 kBtus/sq.ft. (which would be an actual 70 percent 

reduction), while the same building in a warm climate would need to achieve a reduction of only 

5 kBtus/sq.ft. (which would be an actual 10 percent reduction). 

Using the above example, the climate adjustment in today’s rule would set the baseline at 

150 kBtu/sq.ft. for the cold climate example, so a 55 percent reduction would make the target 

67.5 kBtu/sq.ft. instead of 45 kBtu/sq.ft. In the warm climate example, the baseline would be 50 

kBtu/sq.ft., and a 55 percent reduction would make the target 22.5 kBtu/sq.ft. instead of 45 

kBtu/sq.ft. In other words, buildings in both the warm and cold climate zones have to achieve 55 

percent reductions but must meet that baseline relative to the climate adjusted baseline for the 

appropriate climate. The same logic applies to the 65, 80, 90, and 100 percent reductions. All 

covered buildings designed in FY 2030 or later would be required to meet the 100 percent 

reduction, regardless of climate.
46

The maximum allowable fossil fuel-generated energy consumption in proposed Tables 1-

4 of Appendix A of both part 433 for commercial buildings and multi-family residential 

buildings and part 435 for low-rise residential buildings include adjustments for climate. The 

climate adjustments were developed by ORNL. ORNL developed national energy use intensities 

(EUIs) for over 50 building types from CBECS and RECS, and used zonal EUI ratios derived

from building simulation modeling performed by the NREL to parse the building types into 16 

different climate zones. The procedure is described in more detail in “Derivation of Federal 

Building Fossil Fuel Energy Use Reduction Targets,” (ORNL/TM-2011/84, 

http://hyperion.ornl.gov/pubs/EISATargets.pdf). DOE’s climate zone map is produced below for 

reference. The county-by-county climate zones are defined in the baseline standard for 10 CFR 

part 433 -- ASHRAE Standard 90.1-2010.
47

Figure 1 – U.S. Department of Energy Climate Zone Map

Source of Image: www.resourcecenter.pnl.gov
48

3. Plug and Process Loads

In addition to fossil fuel-generated energy consumption used for building-related 

functions such as lighting, HVAC, and envelope, equipment related to the use that occurs within 

the building also consumes fossil fuel-generated energy. This includes plug loads such as office 

equipment, personal computers, cash registers, and other such equipment that are typical to 

buildings. However, some building types also house process loads that are very energy-intensive 

relative to other building-related energy use. 

In the NOPR, DOE acknowledged that inclusion of plug and process loads in the 

methodology may make it more difficult to achieve the mandated fossil fuel-generated energy 

consumption reductions. DOE noted that all building energy consumption, including plug and 

process load consumption, is included in the baseline CBECS and RECS data and, therefore, 

proposed that plug and process loads would be subject to the fossil fuel reductions. 

DOE requested comments on how the proposed rule could be designed such that the 

assumptions used in the whole building simulations would accurately reflect the final building 

design and operation, including plug and process loads. 75 FR 63410. In today’s SNOPR, DOE 

clarifies that CBECS does not include building types with energy use dominated by process 

loads. 
49

Several comments were submitted relating to plug and process loads. Most comments 

received on plug and process loads expressed concerns about including process loads in the fossil 

fuel-generated energy consumption baselines, with particular concern about including energyintensive process loads. EEI, DHHS-IHS-OEHE, DOD-AF, ASHRAE 100, and AGA 

commented that process or plug and process loads should not be included in the calculations 

since these loads do not directly represent the building design attributions. (EEI, No. 10 at p. 6; 

DHHS, No. 24 at p. 4; DOD-AF, No. 25C at p. 5; ASHRAE, No. 8 at p. 2; AGA, No. 16 at p. 4) 

DOE received a number of comments from DOD suggesting that because many DOD 

facilities do not map to the CBECS building types, DOE should remove the process load 

component from the calculations or otherwise treat certain buildings with process loads 

differently. (DOD-AF, No. 25C at p. 4; DOD-OUSOD, No. 25A at p. 2; NAD, No. 19 at p. 

1;DOD-N, No. 25B at p. 9) Otherwise, DOD-N noted, petitions for downward adjustment of the 

reduction requirement could consist predominantly of buildings dominated by process loads. 

(DOD-N, No. 25B at pp. 6, 9, 12) DOD-N recommended standardized building occupancy and 

use assumptions. (DOD-N, No. 25B at p. 6) 

CBECS and RECS do not include building types with what are generally understood to 

be energy-intensive process loads. Process loads are typically metered separately and do not 

include energy consumed for maintaining comfort and amenities for the occupants of the 

building (including space conditioning and lighting for human comfort or convenience), 

commercial equipment and office-related plug loads, and other loads whose energy use is 

included in the building categories in CBECS and RECS (such as medical equipment and 
50

commercial refrigeration). Energy-intensive process loads would include, but not be limited to, 

activities such as manufacturing, painting, welding, metal work, fabricating, assembly, and data 

centers. 

In the proposed rule, the baseline for building types not in CBECS or RECS would have 

been determined by a whole building simulation, and the process loads would have been subject 

to the fossil fuel-generated energy consumption reduction requirements. DOE understands that it 

could be much more difficult for agencies designing buildings with energy-intensive process 

loads to comply with the requirements of today’s rule than agencies designing buildings without 

process loads. It is more difficult to reduce process energy consumption, and the process activity 

is critical to the agency’s purpose for the building. In addition, for buildings with energyintensive process loads, the process loads tend to dominate the energy consumption of the 

building. As a result, DOE acknowledges that agencies with buildings with such process loads 

may be the agencies most likely to petition DOE for a downward adjustment of the standard if 

the process loads were subject to the fossil fuel reduction requirements. DOE also notes that plug 

and process loads are excluded from the baseline energy efficiency requirements for Federal 

commercial and multi-family high-rise residential buildings. (See 10 CFR 433.101)

Based on these considerations, DOE proposes that for building categories and types not listed 

in CBECS with energy-intensive process loads, the process loads should not be subject to the 

fossil fuel-generated energy consumption reduction requirements of this rule. These building 

types would remain subject to today’s requirements by separating the process loads from the 

building and building-related loads as follows:
51

1. Federal agencies with buildings with energy-intensive process loads would choose the 

CBECS building type (from Tables 1-4 of Appendix A) that most resembles the building 

as if it had no process loads. For example, industrial facilities and airplane hangars for 

painting/plating would generally map to warehouses, and data centers would generally 

map to laboratories.

2. Agencies would then find the appropriate target from Tables 1-4 based on climate zone 

and fiscal year in which design for construction began for the underlying building type 

selected in Step 1. Because Tables 1-4 do not include these process loads, agencies would 

add to the target the estimated fossil fuel-generated energy use of the process loads to 

determine the maximum allowable fossil fuel-generated energy consumption for the 

proposed building. When estimating the process load, the agency would use the 

electricity fossil fuel generation factor and the electricity source energy factor defined in 

this rule to convert electricity into kBtu/sq.ft.

3. To determine compliance, agencies would estimate the energy use and fossil fuelgenerated energy consumption of the proposed building using the equation in section 

433.201(a) (for CBECS) or 435.201(a) (for RECS), add the estimated process load from 

Step 2, and compare the result to the maximum allowable fossil fuel-generated energy 

consumption.

DOE believes that this calculation for buildings with process loads, along with the expanded 

list of building types described earlier, would make it unnecessary to develop an alternative 

baseline using a simulated model as was proposed in the NOPR. The expanded list of building 
52

types is comprehensive and should cover virtually all building types and categories in the Federal 

sector. Agencies should be able to find a building type from the expanded list that closely 

resembles the building as if there were no process loads. Thus, DOE has deleted provisions in the 

proposed rule to develop alternative baselines using Appendix G of the Performance Rating 

Method in ASHRAE Standard 90.1-2004 or the IECC Simulated Performance Alternative. DOE 

believes this approach is simpler and clearer than the method proposed in the NOPR, and 

addresses the concerns and comments that were submitted. 

DOE seeks comment on three specific issues related to process loads: 

1. DOE recognizes that not all building categories or building types are equally 

represented in CBECS data. Additionally, energy use can vary widely within the 

same building category or type. Therefore, DOE requests additional comment on 

the treatment of process loads for building categories that are under-represented in 

CBECS, or where energy use varies widely. DOE also seeks comment on what 

parameters to use when determining that a building is under-represented in 

CBECS.

2. In addition, DOE recognizes that buildings with high process loads must increase 

the capability of their HVAC systems beyond what the building would require 

absent the building’s process-related mission. Therefore, DOE seeks further 

comment on whether and how to account for the increment of supplemental 

HVAC required to condition buildings with high process loads. 
53

3. DOE understands that agencies may not be uniformly equipped to submeter their 

process loads for the purposes of calculating their required fossil fuel reduction. 

Therefore, DOE requests comment on the degree to which agencies presently 

submeter process loads. 

Concerning plug loads, GTI suggested that the additional variability in plug loads is a 

legitimate issue, but suggested that it is an issue that can be addressed by a good engineering 

analysis during the design phase. (GTI, No. 22 at p. 12) EEI stated that the methodology must 

treat plug loads the same for purposes of both the baseline and the proposed design. (EEI, No. 7 

Public Meeting Transcript, at p. 33-35)

Plug loads are included in the building types reported by the CBECS and RECS databases. In 

addition, they generally do not dominate the building energy profiles like some process loads, 

and it is easier to achieve plug load reductions through the use of ENERGY STAR and other 

energy efficient products than it is to reduce process loads. As a result, DOE preliminarily has 

decided that plug loads would continue to be included in the baseline and would be subject to the 

fossil fuel reduction requirements.

4. Differentiate Between Fossil Fuels

Some fossil fuels produce higher CO2 emissions than other fossil fuels, with coal being 

the highest and natural gas being the lowest. The NOPR noted that ECPA makes no distinction 
54

between fossil fuels for purposes of the required fossil fuel-generated energy consumption 

reductions addressed by this rule. 75 FR 63406 While the statute does not specifically direct 

DOE to consider variation in fossil fuels for purposes of this rulemaking, DOE stated that the 

statute does not prohibit DOE from taking the variation into account. With that in mind, DOE 

requested comments on whether all fossil fuels should be treated equally or whether each should 

be treated differently based on CO2 emissions or some other factor. 

DOE received several comments about differentiating between fossil fuels. The 

comments varied, although most favored differentiating between fossil fuels. DHHS-IHS-OEHE 

supported taking into consideration the actual CO2 emission factors of fossil fuel types and 

whether or not a fuel comes from domestic or imported sources. (DHHS, No. 24 at p. 2) DOD-N, 

National Rural Electric Cooperative (NREC) and the General Services Administration-Office of 

Federal High Performance Green Buildings (GSA) also supported weighting fossil fuels based 

on their respective carbon footprints. (DOD-N, No. 25B at p. 4; NREC, No. 28 at p. 2; GSA, No. 

26 at p. 2) The Office of the Deputy Under Secretary of Defense, Installations and Environment, 

Facilities Energy Directorate (ODUSD) believes such an approach would help, but 

recommended a thorough study of the potential cost impact prior to implementing such a policy. 

(DOD-OUSOD, No. 25A at p. 3) GTI recommended that fossil fuel types be distinguished by 

their cost, efficiency and CO2 content. (GTI, No. 22 at p. 13) The AGA commented that the DOE 

should restrict its consideration only to fuel cycle issues, not carbon contributions of fuel cycles, 

because greenhouse gas emissions are not the dominant issue in this rulemaking. (AGA, No. 16 

at pp. 4-5)
55

DOE notes that ECPA establishes building design requirements based on “fossil fuelgenerated energy consumption” of a building, not greenhouse gas emissions of a building or 

other factors that may differentiate fossil fuels. Upon reconsideration of the issue as it was 

proposed in the NOPR, DOE believes that applying the reduction requirements equally to all 

fossil fuel types is the best interpretation of the statute. As a result, DOE is not differentiating 

between fossil fuels in today’s rulemaking.

5. Regional Fossil Fuel Factors

To determine the fossil fuel-generated energy consumption of the buildings reported in 

CBECS and RECS, the fossil fuel component of the electricity used by the building was added to 

the building’s direct fossil fuel consumption. To calculate the fossil fuel component of site 

electricity use, site electricity was multiplied by the percentage of electricity nationally that is 

produced from fossil fuels, referred to as the electricity fossil fuel generation factor for purposes 

of this rule. The factor was obtained by summing the electricity generated from fossil fuels (coal, 

oil, natural gas, and other gases) from Table 3.2.A of the Energy Information Administration 

(EIA) 2012 Electric Power Annual Report 

(http://www.eia.gov/electricity/annual/html/epa_03_02_a.html) and dividing it by the total 

electricity produced in the U.S. 75 FR 63407. According to Table 3.2.A, for 2003, the fossil fuel 

generation factor was 0.71, meaning that about 71 percent of all electricity in the U.S. is 

generated from fossil fuels. DOE chose to use the 2003 value in accordance with the statutory 

mandate that buildings 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 in fiscal 
56

year 2003 (as measured by CBECS or RECS.) In addition, DOE notes that the fossil fuel 

generation factor has varied from 0.71 in 2003 to a peak of 0.74 in 2007 and back to 0.71 in 

2012. DOE indicated in the NOPR that it was considering a regional approach to establishing 

the fossil fuel fraction associated with electricity, and asked for comments. 

Public comments were mixed, some supporting and some opposing the use of a regional 

fossil fuel factor. EEI questioned whether adjustments for regional electricity use would be made 

by census region, sub-census region, power pool region, by state, or by some other form of 

disaggregation. (EEI, No. 10 at p. 3) GSA also supported a regional approach. (GSA, No. 26 at 

p. 1) AGA supports use of a regional fossil fuel mix for electric generation based on eGRID subregional level data. (AGA, No. 16 at p. 4) The ICC supported the current proposed approach of 

using the national average, stating that it would be more efficient to simplify the requirements 

and smooth the differentials between buildings by using a national average fossil fuel generation 

factor. (ICC, No. 11 at pp. 2-3) GTI stated that for the purposes of national rulemaking, national 

average factors would be consistent with some of DOE’s prior methodology and protocols. (GTI, 

No. 22 at p. 7) DHHS-IHS-OEHE and NIBS also support the national average fuel mix. (DHHS, 

No. 24 at p. 2; NIBS, No. 12 at p. 2) NAD stated that the electricity source energy factor and 

electricity fossil fuel-generation factor should be based on a regional approach. (NAD, No. 19 at 

p. 1) 

The difference in regional fossil fuel factors would not increase overall fossil fuel 

reductions, but would simply shift where reductions come from. Buildings in regions with high 

fossil fuel content in their electric power mix would require deeper reductions in electricity use 
57

than buildings in regions with lower fossil fuel content in their electric power mix. For agencies 

with buildings across the nation, the fossil fuel content of their buildings, in the aggregate, would 

tend toward the national average. Introducing regional differences adds complexity to the rule 

with little additional benefit. 

Finally, the source of electricity used in a region may be different than the source of 

electricity generated in that region. Power may be generated in one place, but shipped via the 

grid to another area for use. Utilities may purchase power from another utility or a merchant 

plant at a distant location. While data on power generation is readily available, data on where the 

electricity in an area comes from and how it was produced is more difficult to trace. This leads to 

the question of what the appropriate breakdown of region would be – utility district, state, power 

pool area, or interconnection grid. 

Based on these preliminary conclusions, DOE proposes to use the national electric power 

mix in determining the fossil fuel portion of electricity consumption in the rule. Using the 

national average fossil fuel factor is simpler for Federal agencies and DOE believes it would 

yield equivalent results. In addition, DOE proposes to calculate and post the value of the fossil 

fuel generation factor to be used each year on the FEMP website and as an update to this 

regulation1rather than requiring agencies to refer to the Buildings Energy Data Book on an 

annual basis as was proposed in the NOPR.

6. Marginal Source of Electricity

 

1

http://energy.gov/eere/femp/federal-energy-management-program
58

The NOPR stated that 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. DOE believes that over the short and long-run, fossil fuel-powered 

units would have higher marginal costs than units powered by nuclear, hydropower, or 

renewable energy sources. DOE invited comments on whether marginal factors to estimate the 

fossil fuel consumption associated with electricity consumption should be considered, on 

grounds that marginal factors might better reflect the fossil fuel portion of new generating 

capacity that is being built. 75 FR 63407. For example, if almost all new electricity generation 

capacity built for new demand in the coming years is from non-fossil sources of energy, then it 

might be reasonable for new Federal buildings to reduce only their locally consumed fossil fuel 

consumption and not focus on reducing electricity demand to meet the requirements of the rule. 

AGA commented that the rule should not use marginal electricity generation, noting that 

the most equitable means of including new “marginal” generation into the electric grid is as 

additional supply to the average mix. (AGA, No. 16 at p. 4) DOD-N recommended using 

marginal fossil fuel reduction factors, averaged nationally. (DOD-N, No. 25B at p. 4) NIBS 

commented that it would be appropriate to consider the time of such electricity use and its likely 

impact on the fossil fuel mix. (NIBS, No. 12 at p. 2) EEI was concerned that the electric grid is 

changing and the tools used by DOE in the rule are already out of date. (EEI, Public Meeting 

Transcript, No. 7 at p. 45) EEI commented that the source energy methodology looks backwards 

and does not account for the dynamic changes to electric generation that will be occurring over 

the next 20-30 years, and that DOE’s 71 percent electric source factor nationwide is outdated and 

does not account for the states that have renewable portfolio standards. (EEI, No. 10 at p. 3)
59

DOE has considered the issue and is proposing not to use marginal electric source 

factors. The mix of new electric generating capacity added to the grid varies year-to-year. 

However, the amount of electricity generated from fossil fuels on an annual basis has varied 

from 68 percent to 72 percent over the past fifteen years, with no discernible trend. If new, 

marginal generating capacity were steadily becoming more fossil fuel-dependent or less fossil 

fuel-dependent, there would be a trend in how much electricity is produced from fossil fuel on an 

annual basis, but such a trend is not discernible in the current data. In addition, the load growth 

represented by buildings covered by this rule is likely too small relative to overall electric utility 

load growth to change utility decisions on investment in new generating resources. Furthermore, 

as the fossil fuel reduction requirement increases toward 100 percent for buildings for which 

design for construction begins in FY2030, the marginal factors will be less relevant because all 

fossil fuel use will be eliminated in any event. For these reasons DOE believes it would be best 

to continue to use average generating capacity for the fossil fuel generation factor rather than 

marginal generating capacity. 

7. Residential Common Areas

The NOPR stated that the RECS baseline for multi-family residential buildings only 

includes the energy use for individual dwelling units, not any associated conditioned common 

areas. DOE proposed applying the RECS-derived fossil fuel requirements to all applicable floor 

space, including both common and non-common areas. 75 FR 63408. Because common areas 

often have a lower energy intensity than individual dwelling units, using only non-common areas 
60

in the calculation for the proposed design’s fossil fuel consumption is likely to result in a slightly 

higher maximum allowable fossil fuel-generated energy requirement than using both common 

areas and non-common areas in the calculation. This approach will make it easier for building 

designers to demonstrate compliance for a residential building overall. Because common areas 

account for only a small fraction of the floor space in multi-family residential buildings, 

however, the actual effect on fossil fuel reductions would be minimal.

AGA and DHHS-IHS-OEHE supported application of the energy use values for noncommon areas to all applicable floor space, common and non-common. (AGA, No. 16 at p. 4; 

DHHS, No. 24 at p. 4) Based on the rationale provided in the NOPR and the supporting public 

comments, today’s proposed rule continues the approach proposed in the NOPR.

8. Major Renovations

As noted previously in this document, the CBECS and RECS data that provide the 

baseline for today’s requirement are building level data. For major renovations that are whole 

building renovations, the maximum fossil fuel-generated energy consumption values generated 

from CBECS and RECS provide requirements that are comparable to the energy consumption of 

the whole building renovation. However, DOE believes that the maximum consumption levels 

presented in the proposed tables may not be appropriate for major renovations that are system or 

component level retrofits. As such, DOE is proposing that the requirements for system and 

component level retrofits would be based on percentage of whole building fossil fuel 

consumption represented by the retrofitted system or component. The applicable table value 
61

would be multiplied by this percentage to arrive at the maximum allowable energy use of the 

retrofitted system or component. DOE requests comment on this approach, as well as comment 

on other approaches that could be used to determine the requirement for system and component 

level retrofits.

9. Other

Two additional comments were submitted that do not fit into one of the scope 

subcategories. EEI asked how mixed-use buildings would be treated. (EEI, Public Meeting 

Transcript, No. 7 at p. 19) The proposed rule required agencies to perform a building areaweighted average in order to determine the appropriate baseline for mixed-use buildings. 75 FR 

63407. The specific method to do this is found in section 433.200(d)(3) of the proposed rule. 

NPGA thought a paradox existed in that the required reductions identified for years 

preceding FY 2030 may change and yet fossil fuel energy consumption reductions may not apply 

to Federal agencies until the regulations are finalized. (NPGA, No. 23 at p. 4) DOE notes that the 

specific percentage reduction requirements by fiscal year are defined by statute and cannot be 

changed by DOE. In the NOPR, DOE stated that DOE intends to revise the maximum allowable 

fossil fuel-generated energy consumption tables, which are based on the required percentage 

reductions in the statute, to adjust for climate. 75 FR 63408. DOE has done this in today’s 

rulemaking. DOE acknowledges that the specific means to obtain the FY 2030 goal are not 

known today, but believes that advances in design practices and technology over the next 20 

years will make the requirement increasingly attainable.
62

D. Methodology to Determine Compliance

Once the appropriate baseline fossil fuel-generated energy consumption has been 

determined for commercial buildings and multi-family high-rise residential buildings and lowrise residential buildings, today’s rule provides the statutorily-mandated reduction requirements 

to those baseline consumption values. As noted in the NOPR, rather than setting standards by 

only listing the percentage reductions required, DOE has decided to deduct the statutorilyrequired percent reductions from the CBECS and RECS baselines to establish the maximum 

allowable fossil fuel-generated energy consumption for each building type and climate zone. 75 

FR 63408. Establishing today’s standard as an absolute value should simplify agency use and 

interpretation of today’s rule. 

1. Whole Building Simulation 

To determine energy use in the proposed design, DOE proposed in the NOPR that the 

fossil fuel-generated energy consumption of a proposed new Federal building or major 

renovation of a Federal building 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 IECC 2004 Supplement for low-rise buildings. 75 FR 

63409. Because of the complexity involved in estimating fossil fuel-generated energy 

consumption, this requirement would effectively require the use of a whole building simulation 

tool, which can be difficult and increase cost. As a result, DOE invited comments on alternatives 

to a whole building simulation.
63

The ICC endorsed the use of the Simulated Performance Alternative found in IECC 2004, 

but suggested that the rule reference more recent versions. (ICC, No. 11 at p. 3) NRDC and 

NIBS commented that DOE should work with the energy modeling industry to standardize 

modeling assumptions and results provided by the simulation programs, and eventually certify 

modeling programs and users. (NRDC, No. 14 at p. 16; NIBS, No. 12 at p. 2) The International 

District Energy Association (IDEA) was concerned that the Performance Rating Method in 

Appendix G of ASHRAE Standard 90.1-2004 is based on energy costs, as it modifies the Energy 

Cost Budgeting Method in Chapter 11 of ASHRAE Standard 90.1. (IDEA, No. 21 at p. 2) DOE 

proposes that the estimated fossil fuel use of the proposed building be calculated in accordance 

with the provisions relating to “the proposed design” in the Performance Rating Method in 

Appendix G of ASHRAE 90.1-2007. Provisions in Appendix G relating to the generation of a 

baseline or the Energy Cost Budgeting Approach are irrelevant to today’s rule.

As stated in the NOPR, the Performance Rating Method in Appendix G of ASHRAE 90.1 

and the IECC Simulated Performance Alternative are already prescribed at 10 CFR parts 433 and 

435 for determining whether covered new Federal buildings meet the required energy efficiency 

standards in those sections. In addition, whole building simulations are already performed today 

for most medium- and large-sized buildings to accurately estimate loads for purposes of sizing 

HVAC equipment and to evaluate buildings under voluntary advanced building programs. Based 

on this and the comments received, DOE is not changing this approach in today’s rule. 

On August 10, 2011, DOE published a final rule updating Federal energy efficiency 
64

baseline standards in 10 CFR part 435 for low-rise residential buildings to the 2009 IECC. 76 

FR 49279. On July 19, 2013, DOE published a final rule updating the Federal energy efficiency 

baseline standard in 10 CFR part 433 for commercial and multi-family high-rise buildings to 

ASHRAE Standard 90.1-2010. 78 FR 40945. DOE also acknowledges the need to improve work 

with the energy modeling industry to standardize assumptions and certify programs and users, 

but such collaboration is outside the scope of this rule. DOE and ENERGY STAR, drawing upon 

their experience with EnergyPlus Software and Target Finder, respectively, are participating with 

the Commercial Energy Services Network (COMNET, www.comnet.org) to develop energy 

performance modeling guidelines and procedures. 

DOE recognizes that the whole building approach likely is not appropriate for major 

renovations that are limited to system or component level retrofits. As noted previously, for 

major renovations that are less than whole building renovations (i.e., system or component level 

retrofits) DOE is proposing establishing the maximum allowable fossil fuel consumption in fiscal 

years 2013 through 2029 based on the percentage of whole building consumption represented by 

retrofitted system or component. The applicable table value would be multiplied by this 

percentage value to arrive at the maximum allowable fossil fuel consumption of the retrofitted 

system or component. For determining compliance, DOE is proposing basing the subject fossil 

fuel-generated energy consumption on the system or component as retrofitted. This would 

require the design engineer to estimate the energy consumption of the systems or components as 

renovated. 

2. Off-Site and On-Site Renewable Energy and Renewable Energy Certificates
65

The NOPR stated that in order to meet the fossil fuel-generated energy consumption 

reduction requirements mandated by ECPA, fossil fuel-generated energy consumption could be 

offset with the use of renewable energy. 75 FR 63410. DOE also recognized that there may be 

physical limitations to the amount of on-site renewable electricity that can be produced, and it 

may be more affordable for an agency to purchase electricity from centralized renewable energygeneration facilities. DOE was concerned, however, that the purchase of renewable energygenerated electricity via Renewable Energy Certificates or direct Power Purchase Agreements 

(PPAs) 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 

fuel-generated energy consumption. In addition, DOE was concerned that the purchase of 

Renewable Energy Certificates does not involve a long-term binding agreement and can readily 

be cancelled. DOE indicated in the NOPR that it was leaning toward allowing direct PPAs with a 

long-term contract to count toward meeting the fossil fuel-generated energy consumption 

reduction requirements, but not allowing Renewable Energy Certificates. 75 FR 63410. 

Numerous comments were submitted about Renewable Energy Certificates and PPAs. 

The Renewable Energy Markets Association (REMA) supported the use of Renewable Energy 

Certificates and stated that as demand outstrips supply, more renewable energy generation will 

be built. (REMA, No. 20 at pp. 1-2) REMA also indicated that the purchase of Renewable 

Energy Certificates is allowed to meet other Federal requirements, and commented that PPAs 

should be allowed only if the renewable energy attributes (the associated Renewable Energy 

Certificates) are purchased by the agency as well. (REMA, No. 20 at pp. 1-2)
66

NAD and NREC encouraged the use of Renewable Energy Certificates to stimulate 

demand for renewable energy generation. (NAD, No. 19 at p. 2; NREC, No. 28 at p. 2) EEI 

recommended use of both Renewable Energy Certificates and PPAs with a minimum contract 

term. (EEI, No. 10 at p. 8) The National Nuclear Security Administration (NNSA) commented 

that Renewable Energy Certificates should be allowed if the renewable energy was generated on 

Federal property or, from any source, if the contract is for a period of five years or greater. 

(NNSA, No. 9 at p. 1) DHHS-IHS-OEHE was concerned that unless the availability of 

renewable energy sources from the grid is allowed and expanded, these fossil fuel reduction 

goals will not be met, and therefore supported the use of Renewable Energy Certificates and 

PPAs. (DHHS, No. 24 at pp. 5-6) 

GSA expressed concern about the requirement for long-term contracts, and indicated that 

GSA cannot procure renewable energy under PPAs in a manner that would make them 

economical due to their 10 year utility contracting authority under Federal Acquisition 

Regulation Part 41. (GSA, No. 26 at p. 2) NIBS strongly discouraged the utilization of PPAs or 

Renewable Energy Certificates as a mechanism for meeting such requirements, stating that it 

would hamper interest in energy efficient design. (NIBS, No. 12 at p. 3)

AGA opposed the use of Renewable Energy Certificates and PPAs, stating there is no 

guarantee that they will contribute to fossil fuel reductions. (AGA, No. 16 at p. 5) AGA was also 

concerned that, because the statute does not address efficient use of energy in Federal buildings, 

the rule encourages potentially wasteful use of renewables and nuclear-generated electric energy. 
67

(AGA, No. 16 at p. 1) AGA and GTI commented that, if PPAs are allowed, the rule should also 

allow the purchase of natural gas from renewable sources as well, such as biomethane, 

biopropane, biofuel oil and biomass. (AGA, No. 16 at p. 5; GTI, No. 22 at p. 14) APGA 

commented that DOE should not allow contracts to deliver off-site renewable energy to count 

towards on-site fossil fueled energy reductions because such contracts cannot insure that only 

non-fossil-fueled electrons are delivered to Federal facilities. (APGA, No. 17 at p. 6) 

In addition to Renewable Energy Certificates and PPAs, DOE received several comments 

from DOD about allowing agencies to use an agency portfolio approach for renewable electricity 

produced off-site by the agency. These commenters stated that they encourage investment in 

renewable energy where it is most cost-effective, which is often across a portfolio rather than on 

a building-by-building basis. (DOD-OUSOD, No. 25A at p. 1; DOD-N, No. 25B at p. 1; DODAF, No. 25C at p. 4) 

DOE proposes to permit a deduction, subject to limitation, for “on-site renewable 

electricity generation” and for “off-site renewable electricity generation” (e.g., Renewable 

Energy Certificates, agency portfolio renewable energy production and off-site PPAs).

Today’s proposal specifies that “on-site renewable electricity generation” is the amount 

of electricity to be consumed by the subject building that is contributed by renewable electricity 

generated at the Federal site or facility on which the subject building will be located. Thermal 

energy produced from a renewable energy source reduces a building’s load and would be treated 

the same as energy efficiency for purposes of this rule. Federal agencies that choose to use on-
68

site renewable electricity generation would not be permitted to transfer the environmental 

attributes of the on-site generation. In other words, agencies would not be permitted to convey 

the REC associated with the on-site project to an off-site project.

In the proposed regulation Federal agencies are given credit for on-site renewable energy 

via the renewable energy and CHP electricity deduction in the calculation for the fossil fuelgenerated energy consumption of a proposed design. On-site renewable energy would be 

subtracted from the proposed design’s annual site electrical consumption. The building designer 

typically uses site electrical energy consumption when calculating the building's fossil fuelgenerated energy consumption. Deducting renewable energy generation from the proposed 

design’s site electricity consumption before adjusting the electricity consumption for the 

electricity source energy factor and the fossil fuel generation factor would ensure that renewable 

energy generation is given appropriate credit for reducing fossil fuel-generated energy 

consumption. Biomethane, biopropane, biofuel oil, and biomass used on-site, to the extent they 

can be identified and accounted for, would not be included in direct fossil fuel energy 

consumption and would qualify as a renewable energy deduction if used to generate electricity.

DOE understands agencies’ interest in allowing the use of off-site renewable energy 

resources, including environmental attributes represented by Renewable Energy Certificates, to 

help meet the requirements. It may be difficult to achieve the required fossil fuel reductions 

without use of renewable resources, and on-site renewable resources may not be feasible or 

available in many cases. Thus, use of off-site renewable electricity resources and/or Renewable 

Energy Certificates, may be necessary. In addition, with off-site renewable resources, agencies 
69

may be better able to optimize production or reduce costs because of resource availability, 

economies of scale, and other factors. 

While DOE acknowledges the benefits of off-site renewable energy, DOE has some 

concerns with allowing the use of off-site renewable energy, including Renewable Energy 

Certificates, without limitation. DOE is concerned that energy representing a Renewable Energy 

Certificate that is not under substantial control of the Federal agency claiming the REC because

ECPA, as amended, requires that each Federal agency meet the reduction requirements for each 

of its Federal buildings. DOE is also concerned about RECs being not properly tracked and 

accounted for, and that a REC may not represent new or additional capacity. Additional 

administrative and accounting complexity could detract from agency compliance. 

Therefore, under today’s rule, agencies would be required to ensure that any renewable 

energy resources used to meet the rule represent new capacity and are not drawn from existing 

resources, and the renewable energy generation could not be used to offset the fossil fuelgenerated energy consumption of more than one design. DOE believes that requiring off-site 

generation to represent new capacity would be consistent with the statutory goal of reducing total 

fossil fuel consumption.

DOE acknowledges that increased demand for Renewable Energy Certificates, whether 

from the Federal sector or elsewhere, will send a market signal to develop more renewable 

resources rather than reduce the amount of Renewable Energy Certificates available for other 

entities. DOE also recognizes that many commenters support the use of Renewable Energy 
70

Certificates as a compliance path for this rule. 

To receive credit against the reduction targets under any of the above scenarios, an 

agency would be required to ensure that the renewable energy environmental attributes are 

dedicated to meeting the fossil fuel reduction requirements of the subject new or renovated 

building and not used elsewhere. The renewable energy environmental attributes would need to 

be retained by the agency. Environmental attributes represent the general environmental benefits 

of renewable generation such as air pollution avoidance (e.g., sulfur dioxide, nitrogen oxide, 

methane, carbon dioxide). The exact quantity of the environmental benefit (e.g. pounds of 

emission reductions of a given pollutant) is not indicated by an environmental attribute, though it 

can be quantified separately through engineering estimates. The environmental attribute 

represents all environmental benefits provided by renewable energy generation.

DOE recognizes that the December 5, 2013 “Presidential Memorandum – Federal 

Leadership on Energy Management” (“Presidential Memorandum) prioritizes Federal agency 

renewable energy sources for purposes of meeting the renewable energy consumption goals in 

the Presidential Memorandum. Federal agencies should consider the prioritization in the 

Presidential Memorandum when determining how they would comply with today’s proposed 

rule.

DOE requests additional comment on the issues related to the use of off-site renewable 

energy generation, including Renewable Energy Certificates, in complying with the proposed 
71

rule. Specifically, DOE is also concerned about, and requests comment on, how the current state 

of information and markets would allow Federal agencies to reliably trace a Renewable Energy 

Certificate to an actual reduction in fossil fuel use.

3. Use of Source Energy 

The NOPR stated that CBECS and RECS data does not provide data on total fossil fuelgenerated energy consumption in buildings; however, fossil fuel-generated energy consumption 

can be calculated from CBECS and RECS 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. 75 FR 63407. 

In order to determine the amount of electricity consumed in the building that is generated 

from fossil fuels, it is necessary to convert site electricity to source energy. Source energy is the 

total amount of energy used at the site, including the energy used to generate and deliver 

electricity to the site. Site electricity is converted to source energy by multiplying site electricity 

by the electricity source energy factor. For purposes of today’s rule, source energy is further 

adjusted to account for the portion of electricity generated from fossil fuels by multiplying 

source energy times the fossil fuel generation factor and adding direct consumption of fossil 

fuels in the building. DOE did not ask for comment on this issue except as to whether the 

calculation could be effectively used for on-site combined heat and power systems (discussed 
72

later). Nonetheless, DOE received several comments concerning the use of source energy rather 

than site energy. 

NREC commented that site energy, which can be easily measured and verified, is the 

only correct method that can be used. (NREC, No. 28 at pp. 1-2) EEI stated that the use of source 

energy contradicts the 2007 final rule on energy efficiency performance standards for new 

Federal buildings, and urged DOE to use site energy. (EEI, No. 10 at p. 2) EEI stated that the use 

of source energy contradicts the conclusion of ASHRAE’s Technology Council Ad Hoc 

Committee on Energy Targets, where ASHRAE, the American Institute of Architects (AIA), the 

U.S. Green Building Council (USGBC), and the Illuminating Engineering Society of North 

America (IESNA) agreed to use site energy as the metric for net-zero energy buildings. (EEI, 

No. 10 at pp. 4-5) EEI also claimed that the use of source energy will make the reduction targets 

unattainable. (EEI, No. 10 at p. 7) Finally, EEI argued that site energy metrics would eliminate 

any game playing or distorted results from the use of on-site renewable energy or CHP systems. 

(EEI, No. 10 at p. 6)

AGA commented in support of DOE’s proposed use of source energy. Source energy, 

AGA stated, is essential to calculating fossil fuel use in both direct primary energy use and 

electric generation, and is consistent with the recommendations of the National Research Council 

on energy efficiency standards and measurement approaches, EPA’s ENERGY STAR for 

Commercial Buildings, and national consensus standards such as the Green Buildings Initiative,

ANSI standard and proposed IgCC Version 2.0 model code. (AGA, No. 16 at pp. 2-3) AGA 

recommended, for clarity, that the regulatory definitions include “source” energy. (AGA, No. 16 
73

at p. 4) 

GTI supported the use of source energy. They commented that site energy incentivizes 

lower first cost technologies and inadvertently promotes fuel switching away from more fullfuel-cycle energy efficient and lower greenhouse gas-emitting technologies. (GTI, No. 22 at pp. 

5, 14) GTI also commented that the proposed DOE definition of primary energy only considers 

the energy required to convert fuels to electricity at the power plant, not the fossil fuel energy 

consumption associated with extraction, processing, transportation, or distribution of fuels used 

directly in buildings. (GTI, No. 22 at p. 2) GTI, APGA, and NPGA commented that DOE’s 

proposed source energy metrics should be replaced with full-fuel-cycle information as DOE has 

decided to use in certain analyses the Department conducts when setting energy conservation 

standards for consumer products and commercial equipment. (see Docket No. EERE-2010-BTNOA-0028, RIN 1904-AC24, Statement of Policy for Adopting Full-Fuel-Cycle Analyses into 

Energy Conservation Standards Program.) (GTI, No. 22 at p. 15; APGA, No. 17 at p. 3; NPGA, 

No. 23 at p. 3) GTI offered DOE’s Greenhouse Gases, Regulated Emissions, and Energy Use in 

Transportation (GREET) model as the primary energy to full-fuel-cycle conversion factor 

methodology, and its Source Energy and Emissions Analysis Tool (SEEAT) as its underlying 

methodology for consideration. (GTI, No. 22 at pp. 5-6)

DOE continues to believe that source energy is the correct metric to use for this 

rulemaking, for reasons cited in the NOPR and discussed at the beginning of this section. 

Because this rule relates to fossil fuel reductions specifically (rather than energy reductions 

generally) and not all electricity is produced from fossil fuels, it was necessary to go beyond site 
74

energy and look at source energy to accurately quantify fossil fuel consumption for electricity. 

For this reason, DOE adjusted site energy from electricity by the percentage of electricity 

produced from fossil fuels (fossil fuel generation factor) and the fuel conversion, transmission, 

and distribution losses (electricity source energy factor) to determine the fossil fuel-generated 

energy consumption from electricity. The use of source energy is consistent with the approach 

EPA uses for ENERGY STAR Portfolio Manager. EPA has determined that source energy is the 

most equitable unit of evaluation for fossil fuels.1Source energy forms the basis for the 

maximum allowable fossil fuel-generated consumption reductions in Tables 1-4 in Appendix A.

Regarding EEI’s concern that source energy would distort the results or cause gameplaying with on-site renewable energy or CHP, today’s rule gives on-site renewable energy 

generation the same benefit as improved energy efficiency. Under either scenario, the non-fossil 

fuel generation does not count toward the proposed design site electricity consumption. 

Similarly, any electricity produced by a CHP does not count toward the proposed design site 

electricity consumption. Regarding EEI’s contention that source energy will make the reductions 

unattainable, DOE notes that if the reductions are not attainable via energy efficiency alone, 

Federal agencies may choose to use a renewable energy deduction.

DOE appreciates the comments from GTI and others about using a full-fuel-cycle 

approach with the GREET or SEEAT models, but believes the methods used in today’s rule are 

appropriate to address the statutory requirements. The maximum allowable fossil fuel-generated 

energy consumption targets in today’s rule incorporate losses back to the power plant and the 

 

1 U.S. Environmental Protection Agency. ENERGY STAR Performance Ratings Methodology for Incorporating 

Source Energy Use. March, 2011. 
75

pipeline. However, DOE does not believe it is necessary to go further upstream in its analysis for 

purposes of this rule. Any losses that occur further upstream than the power plant or pipeline 

would be very difficult to substantiate with precision. 

4. Fuel Conversion Efficiency

In the NOPR, DOE proposed that the electricity source energy factor would be based on 

the average utility delivery ratio in Table 6.2.4 of the 2010 DOE Building Energy Data Book 

(See http://buildingsdatabook.eere.energy.gov). 75 FR 63410. The ratio accounts for fuel 

conversion losses to produce electricity, as well as transmission and distribution losses. DOE 

used the electricity source energy factor of 0.316 from the most recent year data was available, 

2008. Recent updates in the 2011 DOE Buildings Energy Databook (see 

http://buildingsdatabook.eere.energy.gov) indicate that the current value in most current 

historical value in 2010 was 0.323, with a predicted gradual increase to 0.340 by 2035. 

EEI commented that assuming a 33 percent conversion efficiency of fossil fuels to 

electricity will guarantee miscalculations, especially in areas with more renewable forms of 

electric generation. (EEI, No. 10 at p. 3) For example, the conversion efficiency of natural gas 

generation built over the last 10-15 years, has a thermal efficiency in the 55 to 57 percent range. 

(EEI, No. 7 Public Meeting Transcript, at p. 29; EEI, No. 10 at p. 3) AGA commented that DOE 

should not impose barriers to use of end-use fuel choice as a means of achieving target 

reductions. (AGA, No. 16 at p. 3) APGA and GTI commented that since generation efficiency 

and fuel mix will not materially change between now and 2030, it will be critical to reduce 
76

purchased electricity consumption significantly to help achieve required targets. (APGA, No. 17 

at p. 4; GTI, No. 22 at p. 2)

APGA commented that the proposed definition of primary energy is incomplete in that it 

only considers the energy required to convert fuels to electricity at the power plant, not primary 

energy resources necessary to obtain and transport the fuel to the power plant nor fossil fuel 

energy consumption associated with extraction, processing, transportation, or distribution of 

fuels used directly in buildings. (APGA, No. 17 at p. 3) APGA also commented that renewable 

generation requires fossil fueled backup, which will frustrate the 100 percent elimination of 

fossil fuel-generated energy consumption. (APGA, No. 17 at p. 6) DOD-N commented that the 

thermal efficiency factor has been omitted from the proposed calculation. (DOD-N, No. 25B at 

p. 3) IDEA commented that the definition of electricity source energy factor appears to be 

incorrect and should refer to “primary fuel” rather than “primary electrical energy.” (IDEA, No. 

21 at p. 2)

First, DOE notes that thermal efficiency is embedded as part of electricity source energy 

factor, as well as the other fuel source energy multiplier. Further, DOE does not share the 

concern that the use of fossil fuels for backup power by a utility when intermittent renewable 

energy is not available will frustrate the 2030 goal of 100 percent reduction in the use of fossil 

fuel-generated energy. Compliance with the requirements leading up to 2030 (i.e., 55 percent in 

FY 2010-2014, 65 percent in FY 2015-2019, 80 percent in FY 2020-2024, and 90 percent in FY 

2025-2029) is determined on an annual basis, and DOE believes it is reasonable to continue to 

apply that approach to the 100 percent reduction requirement after 2030. Even though fossil fuels 
77

may be used by a utility as backup power during certain times of the day or year when a 

renewable resource is not available, surplus renewable energy provided at other times will offset 

fossil fuel consumption for use elsewhere. 

In the NOPR, “primary electrical energy use” was a term used only in the definitions of 

“electricity source energy factor” and “fossil fuel consumption for electricity generation.” The 

latter term is not included in the today’s rule, and the definition of “electricity source energy 

factor” has been modified and no longer refers to “primary electrical energy use,” eliminating the 

need to redefine the term.

The definition of “electricity source energy factor” has been simplified in today’s 

proposed rule. Electricity source energy factor is defined as the multiplier used to account for 

fuel conversion losses and transmission and distribution losses associated with electricity 

generated from fossil fuels. For today’s proposed rule, the factor to be used is 0.316. This 

represents the average efficiency of fossil fuel generation in 2008 as described in the NOPR. The 

electricity source energy factor was used to help convert CBECS and RECS site energy data to 

source energy in Tables 1-4 of Appendix A as described in the preamble section on source 

energy.

EEI argued that it is inconsistent to use estimates for going “upstream” for electricity but 

not for direct use of fossil fuels. (EEI, No. 10 at p. 6) DOE has added an “other fuels source 

energy multiplier” to the equation for various fuels other than electricity to determine the fossil 

fuel-generated energy consumption of the proposed building. These multipliers were used by 
78

ORNL when converting the CBECS site energy use data to source-based fossil fuel generated 

energy consumption, so the multipliers also need to be included in the calculation for the 

proposed building. The multipliers account for distribution and other losses that occur between 

the time the fuel provider takes delivery and final delivery to the building site as measured at the 

meter, and provides consistency with the adjustment for electricity. The “other fuels source 

energy multipliers” do not include well-head, mine-mouth, or bulk fuel transportation losses. 

5. On-Site Energy Generation from Natural Gas

The NOPR indicated DOE’s interest in the effect of the fossil fuel-generated energy 

consumption reduction requirements on distributed energy technologies that provide onsite 

electrical generation from natural gas, such as combined heat and power (CHP) systems 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 fuel-generated energy consumption reduction 

requirements. DOE indicated its interest in minimizing the penalty or not discourage the use of 

on-site CHP systems, within the limits of the statutory language. DOE invited comments on how 

appropriate credit may be given for CHP systems through the compliance determination 

methodology. 75 FR 63410. 

DOE received several comments related to distributed energy technologies. IDEA 

commented that district heating systems may use a mix of fossil fuels and renewable fuels and 

may also supply electricity to the power grid using combined heat and power (CHP), and that the 
79

rule does not accurately capture the efficiency of district energy. (IDEA, No. 21 at p. 2) EEI 

disagreed that on-site CHP has inherent efficiencies compared to purchased electricity; CHP can 

be very efficient, but it is not always more efficient than combined-cycle generation. (EEI, 

Public Meeting Transcript, No. 7 at pp. 53-54) EEI also commented that one of the issues is the 

on-site production of energy, whether it is electric energy, thermal energy or fossil fuel energy. 

(EEI, Public Meeting Transcript, No. 7 at p. 51) On a related issue pertaining to on-site 

generation more broadly, EEI commented that the use of on-site renewable energy does not 

change the energy efficiency of the building, it only moves the source of energy closer to the 

building. (EEI, No. 10 at p. 5) 

NIBS commented that the logic behind singling out CHP systems seems flawed because 

their efficiency is already accounted for. (NIBS, No. 12 at p. 3) AGA commented that the direct 

use of natural gas in Federal buildings should be preserved as an option where installation of 

natural gas applications would both reduce fossil fuel-generated energy consumption and 

increase energy efficiency. (AGA, No. 16 at p. 2) NAD commented that fuel cells can operate on 

natural gas until hydrogen fuel storage becomes feasible, and suggested they should be addressed 

like CHP systems. (NAD, No. 19 at p. 3) AGA also commented that the calculation methodology 

correctly provides credit for the installation of on-site combined heat and power (CHP) systems, 

and suggested that DOE should promote these technologies within Federal buildings within the 

timeframes for which fossil fuel use is still permitted (i.e., before FY 2030). (AGA, No. 16 at p. 

5)

DHHS-IHS-OEHE supported not penalizing or discouraging the use of on-site sources. 
80

(DHHS, No. 24 at p. 5) DOD-N commented that distributed electrical power produced on-site 

should be credited with fossil fuel use avoidance for electricity sold into the grid. (DOD-N, No. 

25B at p. 5) IDEA recommended the addition of eight definitions and amendment of the 

definition of “Proposed Design Fossil Fuel-Generated Energy Consumption” and the definition 

of “Direct Fossil Fuel Consumption.” (IDEA, No. 21 at pp. 3-4)

Based on the comments received and a technical review of the issues raised, DOE 

proposes specificity on how CHP and district heating systems should be considered. DOE 

believes that this specificity adds clarity and addresses the comments submitted. Under today’s 

proposal for district heating or cooling systems using fossil fuel as the source, the fossil fuelgenerated energy consumption would be determined by adjusting the building load for the plant 

fuel conversion efficiency and estimated distribution losses as reflected in the “Other Fuels 

Energy Source Multiplier.” If a non-fossil fuel is used as the sole source (e.g., geothermal) of 

energy for the district heating system, there would be no contribution to fossil fuel-generated 

energy consumption. 

For CHP district heating systems, the electricity attributed to the proposed building 

would be determined by multiplying the building’s pro-rated share of the total delivered heat 

from the system times the total electricity produced by the CHP system. For CHP systems 

serving only one building, fossil fuel consumption of the CHP system would be added to the 

direct fossil fuel consumption in Equation 1. Because it is produced from waste heat, the amount 

of electricity produced by either the CHP system serving a single building or a CHP district 

heating system, as determined above, would be deducted from the proposed design site 
81

electricity in Equation 1 under the renewable energy and CHP deduction. 

6. Additional Review 

Because of the complexity of some of the issues presented in the NOPR, two comments 

were submitted requesting an additional opportunity to review the rule before it is finalized, 

especially regarding the issues of climate zones and regional considerations. (NPGA, No. 23 at p. 

5; DHHS, No. 24 at p. 1) Today’s SNOPR provides an opportunity for additional comment on 

the proposed rulemaking, including the issues of climate zones and regional considerations.

7. Other

DOE received a few additional comments relating to methodology that did not fit into 

one of the categories above. AGA and APGA asked DOE not to achieve reductions by 

encouraging Federal agencies to only use electricity supplied by nuclear energy rather than 

renewable energy. (AGA, No. 16 at p. 2; APGA, No. 17 at p. 6) The American Wood Council 

(AWC) commented that DOE should reference not only LEED as a tool for energy reductions, 

but also Green Globes and the National Association of Home Builders (NAHB) Standard. 

(AWC, No. 18 at p. 2) DOE notes that all nuclear power is produced by regulated utilities and 

there is no mechanism for utility customers to get credit for nuclear-generated electricity under 

today’s rule. There is currently no way for a non-utility to purchase nuclear-generated electric 

power as there is for electricity produced from renewable energy sources under arrangements 

like PPAs or RECs. However, DOE does recognize that on-site deployment of small modular 
82

reactors (SMRs) may be possible in the future and that some agencies may be in a position to 

rely on SMRs for energy. DOE requests comment on how the potential future use of on-site 

SMRs could be addressed in the final rule.

DOE acknowledges that, to the extent LEED is referenced as a possible resource for 

fossil fuel reductions, it should have also referenced other green building rating systems (GBRS) 

such as Green Globes and the NAHB Green Standard. Although DOE has added these GBRS in 

the Reference Resources section below, DOE notes that these systems do not provide specific 

guidance that could help designers achieve the level of reductions called for in today’s rule. 

E. Petitions for Downward Adjustment

Upon petition by an agency subject to the statutory requirements, ECPA permits DOE to 

adjust the applicable numeric fossil fuel-generated 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 the 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 further directs that such an 

adjustment does not apply to GSA. In today’s rulemaking, DOE proposes a downward 

adjustment process for new construction and separate processes for major renovations that are 

whole building renovations and for major renovations that are limited to system or component 

level renovations. 
83

1. Technical Impracticability and Cost as a Basis for Downward Adjustment

The NOPR noted that the downward adjustment provision of ECPA does not expressly 

include cost considerations, but that DOE was 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. 75 

FR 63412. DOE invited comments on what kind of technical impracticability would constitute 

grounds for a petition for downward adjustment.

DOE received several comments about allowing costs (or cost-effectiveness) as grounds 

for a petition for downward adjustment. DOD-OUSOD and DOD-AF commented that life-cycle 

cost-effectiveness should be the foundation for any finding of “technically impracticable.” 

(DOD-OUSOD, No. 25A at p. 1; DOD-AF, No. 25C at p. 7) NIBS commented that any petition 

invoking cost as a basis for technical impracticability should be based solely on life-cycle costs, 

not first costs. (NIBS, No. 12 at p. 4) AGA recommended that petitions should be 

“technologically feasible and economically justified” as the term is used in ECPA. It also 

recommended that cost-effectiveness be based on life-cycle cost-effectiveness of the relevant 

energy reduction measures. (AGA, No. 16 at p. 3)

NRDC commented that DOE's proposal to use “cost considerations” as part of the 

determination of what is “technically impracticable” is contrary to what NRDC reads as EISA’s 

plain language, and that DOE should not use cost impacts in any way to limit the application of 

the rule. (NRDC, No. 14 at p. 8) NRDC stated that by requiring these reductions in fossil fuel use 
84

regardless of costs, Congress was advancing a broader goal that goes beyond the reduction of 

fossil fuel use by Federal buildings, specifically that the Federal government will lead by 

example. (NRDC, No. 14 at p. 9) 

DOE understands the concern that achieving the reductions required by this rulemaking, 

especially in the out-years, could be difficult and expensive. DOE also appreciates the concern 

that allowing costs as the basis for a downward adjustment petition could result in many agencies 

requesting a petition simply based on cost. The statutory provision concerning a petition for 

downward adjustment states that agencies must demonstrate that meeting the reductions would 

be technically impracticable “in light of the agency’s specified functional needs for the 

building,” and does not mention cost. As a result, DOE does not believe that cost itself could be

grounds for a downward adjustment. However, DOE believes that it would be appropriate and 

permissible to consider a petition for downward adjustment based on the impact to an agency’s 

functional needs for the building of achieving the fossil fuel-generated energy consumption 

reductions. DOE recognizes that an agency’s functional needs for a building may be inextricably 

linked with costs, but cost should not be the primary basis for a petition for downward 

adjustment. 

2. Bundling of Petitions

The bundling of petitions was not an issue addressed in the NOPR. However, three 

comments were submitted on whether an agency could submit a single petition for downward 

adjustment for multiple agency buildings of the same building type, rather than requiring a 
85

petition for each building separately, to minimize agency burden. (DOD-AF, No. 25C at p. 8; 

DOD-OUSOD, No. 25A at p. 1; DHHS, No. 24 at p. 6) 

DOE agrees that “bundling” of petitions by an agency for buildings of the same building 

type and function would help streamline the petitioning process and relieve the burden on 

agencies and DOE by avoiding duplication of effort. Although DOE would require an individual 

petition containing the information required under today’s proposed rule for each building, if the 

petitions for similar buildings are submitted jointly, a petition may reference the downward 

adjustment justification in another petition in the bundle. DOE is considering allowing agencies 

to bundle petitions for new buildings or whole renovations to buildings: (1) that are of the same 

building type and of similar size; (2) that are being designed and constructed to the same set of 

targets for fossil fuel-generated energy consumption reduction; or (3) that would require similar 

measures to reduce fossil fuel-generated energy consumption and similar adjustment to the 

numeric reduction requirement. The bundled petitions should clearly state any differences 

between the buildings, and explain why the differences do not warrant the submission of separate 

evaluations. If an agency is designing a similar building for a different set of targets for fossil 

fuel-based energy consumption reduction that meets conditions (1) and (3) above, the agency 

would be required to submit a separate petition, but may include the evaluation for the previous 

building(s) as well as an explanation why that earlier evaluation should apply to the new 

building(s). 

For component-level major renovations, DOE is considering allowing bundling petitions 

that are of the same component and building type. DOE is accepting comment on the most 
86

efficient yet effective ways to bundle petitions.

3. DOE Review Process 

The NOPR stated that DOE will review petitions in a timely manner and if the petitioning 

agency has successfully demonstrated the need for a downward adjustment per the discussion 

above, DOE would concur with the agency’s conclusion and notify the agency in writing. If 

DOE does not concur, it would forward its reasons to the petitioning agency with suggestions as 

to how the fossil fuel-generated energy consumption percentage reduction requirement may be 

achieved. 75 FR 63412. 

Several comments were submitted about the DOE review process. EEI, ICC, DODOUSOD, and DOD-N requested information on how quickly the Secretary of Energy has to 

render a decision on a petition, and requested a timeline. (EEI, Public Meeting Transcript, No. 7 

at p. 61; ICC, No. 11 at p. 3; DOD-OUSOD, No. 25A at p.1; DOD-N, No. 25B at p. 7) NRDC 

and DOD-OUSOD commented that DOE should establish procedures for reviewing and ruling 

on petitions for adjustments to ensure public transparency. (NRDC, No. 14 at p. 7; DODOUSOD, No. 25A at p. 1) DOD-N recommended that the rule should include where and how to 

submit petitions. (DOD-N, No. 25B at p. 7)

DOE recognizes that agencies want assurance that DOE will respond to petitions in a 

timely manner to avoid project delays. For petitions for new construction, DOE proposes to

notify an agency in writing within 90 days of submittal whether a petition for downward 
87

adjustment is approved or rejected. If DOE rejects the petition, it would include its reasons for 

doing so in its response to the agency. Additionally for new construction, DOE proposes a 

provision under which DOE could establish an adjusted value other than the one presented in a 

petition if DOE finds that the petition does not support the conclusion of the submitting agency 

but that the statutorily required level was nonetheless technically impractical in light of the 

agency’s specific functional needs for the building. This provision is intended to provide 

flexibility in the petition process and reduce the need for agencies to resubmit in the instance of a 

rejection. Under the statute, the Secretary of Energy is tasked with deciding whether to grant a 

petition for downward adjustment and DOE believes that this authority also grants DOE the 

ability to propose alternative adjusted values if appropriate. 

For petitions for downward adjustments to the requirements applicable to major 

renovations, DOE proposes that the downward adjustment would be granted upon submission of 

specified certifications. The necessary certifications are discussed in greater detail further in this 

document.

4. Information Required in Petitions for New Construction

The NOPR proposed 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 also proposed that the petition should demonstrate that the adjustment requested by the 

agency represents the largest feasible reduction in fossil fuel-generated energy consumption that 
88

can reasonably be achieved. DOE solicited comments on those issues. 75 FR 63412. 

Several comments specifically asked what kind of information would be required for a 

petition. DOD-N recommended that DOE provide guidance regarding expected content of 

petitions and the minimum supporting information required for review and approval. (DOD-N, 

No. 25B at p. 7) NRDC recommended that DOE require that the agency provide in its petition 

any relevant information that is needed to understand and verify the agency's conclusion and 

request, including information about the building’s specified functional needs. (NRDC, No. 14 at 

p. 12) NRDC thought the requirement that a petition demonstrate that the requested adjustment is 

the largest feasible reduction in fossil fuel-generated consumption that can be achieved 

represents a positive step. (NRDC, No. 14 at p. 8) NIBS suggested that the petitions include a 

description of all reasonable technologies and practices that were examined and ultimately 

rejected by the design team. (NIBS, No. 12 at p. 4)

DOE agrees with these comments and is proposing provisions intended to provide more 

detailed petition requirements that would allow the Department to determine more 

comprehensively whether a downward adjustment would be allowable. DOE proposes a 

modified provision to require a demonstration that the requested adjustment represents the 

largest feasible fossil fuel reduction that can reasonably be achieved to include a demonstration 

that all life-cycle cost-effective energy efficiency and on-site renewable energy measures were 

included in the design and a description of the technologies and practices that were evaluated and 

rejected, including a justification why they were not included. Finally, agencies would also be 

permitted to provide additional information they think will help justify the request for downward 
89

adjustment.

Petitions would also be required to include the maximum allowable fossil fuel-generated 

energy consumption for the proposed building, the estimated fossil fuel-generated energy 

consumption of the proposed building, and a description of the building and the building energy 

systems. A description of the building would include, but would not be limited to, location, use 

type, floor area, stories, and functional needs of the building, and any other information the 

agency deems pertinent. The building energy systems to be described would include the building 

envelope, HVAC systems, lighting systems, service water heating system, and estimated 

receptacle and plug loads. This information should provide DOE the necessary information to 

review petitions, and help agencies ensure key questions and options are addressed in the design 

process. 

5. Downward Adjustments for Major Renovations

As noted previously, for major renovations DOE proposes that the fossil fuel reduction 

requirements apply only to the energy use associated with the portions of the building or building 

systems that are being renovated and only to the extent that the scope of the renovation provides 

an opportunity for compliance with the applicable fossil fuel-generated energy consumption 

reduction requirements. DOE recognizes that the improved efficiencies that can be achieved 

through renovation may not provide sufficient reduction of fossil fuel-generated energy use for a 

major renovation to meet the interim requirements. Renovations are even less likely to achieve a 

100 percent-reduction, even in the limited context of the energy use associated with just the 
90

renovated system or component. As such, DOE expects that to the extent that renovations would 

be subject to the requirements, agencies would need to apply for downward adjustments.

The SNOPR differs from the NOPR by establishing a separate section and separate 

requirements for downward adjustments for major renovations, and further delineates between 

major renovations that are whole building renovations and major renovations that are limited to 

system or component level retrofits (e.g., a lighting retrofit, a retrofit of a boiler or chiller). 

Whole building retrofits provide a greater opportunity for improved energy efficiency as 

compared to a system or component level retrofit, but generally neither type of retrofit would 

likely provide an opportunity to meet the fossil fuel reduction requirements. Recognizing the 

practical limitations on improving energy efficiency through retrofits, DOE proposes separate 

downward adjustment processes for major renovations. For major renovations that are whole 

building renovations, a downward adjustment would be provided at a level equal to the energy 

efficiency level that would be achieved were the proposed building designed to meet the energy 

efficiency standard applicable to new construction. As directed by ECPA, this downward 

adjustment would not apply to GSA, although DOE proposes that this adjustment would be 

available to GSA-tenant agencies with significant control over building design. 

The energy efficiency standards for new construction are established in 10 CFR part 433,

for commercial and multi-family high-rise residential buildings, and 10 CFR part 435, for lowrise residential buildings. The energy efficiency standards require a building be designed to 

achieve the energy efficiency levels of the applicable referenced voluntary consensus code: 

ASHRAE 90.1 for commercial buildings multi-family high-rise residential buildings, and IECC 
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for low-rise residential buildings. The energy efficiency standards for new Federal buildings 

further require that buildings be designed to achieve energy efficiency levels that are at least 30 

percent beyond the levels established in the referenced codes, if life-cycle cost-effective. As

proposed, a building undergoing a whole building renovation would need to be designed to 

achieve the energy efficiency levels currently applicable only to new construction. DOE has 

preliminarily determined that achieving the specified level of energy efficiency for a major 

retrofit that is a whole building retrofit would represent the appropriate level of fossil fuelgenerated energy reduction for the building efficiency that is also technically practicable.

For major renovations that are limited to system or component level retrofits, DOE 

proposes to provide downward adjustments at a level equal to the energy efficiency level that 

would be achieved through the use of commercially available systems and/ or components that 

provide a level of energy efficiency that is life-cycle cost effective. The energy efficiency 

requirement for system and component level renovations could be demonstrated by using the 

higher efficiency of the following, (1) ENERGY STAR or FEMP designated products, or (2) 

products that meet the energy efficiencies specified in ASHRAE 90.1 for systems and 

components in commercial buildings, or IECC for systems and components in residential 

buildings. 

In setting efficiency requirements, both FEMP and ENERGY STAR choose levels that 

are among the highest 25 percent of efficiency for a given product category. ENERGY STAR

estimates that its program saves more than 200 billion kWh of electricity each year, and FEMP 

estimates that compliance with its efficiency requirements can save the government more than 30 
92

trillion BTUs each year. Both programs have integrated life-cycle cost effectiveness into their 

guiding principles and, as such, Federal buyers can have confidence that required products have 

both good energy performance and a total cost of ownership that is equal to or less than products 

below set efficiencies. Prescriptive requirements of ASHRAE 90.1 and IECC demonstrate 

similarly high levels of efficiency. Together, these requirements cover more than 70 product 

types and will help ensure that the products used within Federal facilities are among the highest 

energy efficiencies available. Federal buildings that install and use these products will realize 

lower energy intensities compared to using non-compliant products.

 

DOE requests comment on the considered approach as well as comment on other 

potential methods for processing requests related to major renovations.

6. Make Information Publicly Available

DOE received some comments that petitions for downward adjustment should be made 

publicly available on a DOE website. (NRDC, No. 14 at p. 11; Form letter, No. 29 at p. 1) This 

issue was not addressed in the NOPR. The Form Letter comments also stated that Federal agency 

compliance with today’s rule should be made public. (Form letter, No. 29 at p. 1) 

Commenters stated that the reasons for making this information publicly available are 

that it would make the process transparent and hold agencies accountable and could reduce 

unsupported petitions. DOE appreciates the commenters concerns and supports transparency to 

the extent the Department can be transparent while also responding to petitions in a short 
93

timeframe so as not to delay building design and construction. As a result, DOE is proposing

reporting petition summary level information in the DOE Annual Report to Congress on Federal 

Energy Management and Conservation Programs (See http://www.energy.gov/about/budget.htm). 

7. Narrow the Use of Petitions

DOE received a few comments related to narrowing the use of petitions for downward 

adjustment. NRDC commented that in developing the test for technical impracticability and the 

standards for downward adjustment petitions, DOE must consider the statutory context of the 

EISA 2007 provision, which demonstrates that DOE should not craft a broad petition procedure 

that swallows the larger statutory requirement. (NRDC, No. 14 at p. 8) The Form Letter 

requested that DOE promulgate strict requirements that ensure that agency requests for fossil 

fuel reduction adjustments will be rarely granted, so that this process does not prevent the law 

from achieving its vital goal to cut government buildings' greenhouse gas emissions 

dramatically. The Form Letter also urged DOE to strengthen the rule and apply it without 

exceptions and without loopholes. (Form letter, No. 29 at p. 1)

DOE believes the changes it has proposed in this notice would reduce the number of 

petitions submitted for downward adjustment and will improve the content of submitted 

petitions. DOE has expanded the number of building types covered in Tables 1-4 in Appendix A 

of part 433, and has a methodology for calculating the maximum allowable fossil fuel-generated 

consumption values for buildings with process loads. This is expected to greatly reduce the 
94

number of building types without baselines and fossil fuel reduction targets, eliminating a 

significant potential source of petitions. In addition, in response to some of the public comments 

received, today’s proposed rule is more specific about information to be provided as part of the 

petition process. Agencies requesting a petition would be required to: (1) demonstrate that the 

requested adjustment represents the largest feasible fossil fuel reduction that can be achieved; (2) 

demonstrate that all cost-effective energy efficiency and on-site renewable energy has been 

included in the proposed design; and (3) describe all technologies and practices that were 

evaluated and rejected, including a justification as to why they were not included in the design. 

The rule would require specific information about the energy efficiency and on-site renewable 

energy measures included in the proposed building design to enable DOE to evaluate the request 

for downward adjustment. 

8. GSA Tenant Agencies

The statute does not provide the General Services Administration (GSA) the option of 

petitioning DOE for a downward adjustment of the applicable percentage reduction requirement. 

(42 U.S.C. 6834(a)(3)(D)(i)(II)) In the NOPR, DOE proposed 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. 75 FR 63412. Under 

this approach, DOE proposed that 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. 
95

DOE received one comment on this issue. NRDC commented that allowing GSA tenant 

agencies to petition for downward adjustments contradicts the statute. (NRDC, No. 14 at p. 10)

While the statute prohibits GSA from petitioning DOE for a downward adjustment, it 

makes no reference to GSA tenant agencies. DOE is continuing to propose that GSA tenant 

agencies that have significant control over building design may request a petition. In such cases, 

it would be the tenant agency, not GSA, that is making the design choices that would allow for 

compliance with the rule. Allowing GSA tenant agencies to submit a petition for downward 

adjustment would provide an option for some buildings for which the required fossil fuel 

reductions may be technically impracticable in light of the building’s functional needs, but for 

which GSA may not submit a petition. 

9. Other 

DHHS-HIS-OEHE commented that consideration for what is technically impracticable 

should include remote locations that often have limited choices in available power utility 

companies. (DHHS, No. 24 at p. 6) DOE will consider remote locations and the availability of 

power utility companies in the petition process, but DOE also notes that the use of allowable, 

off-site renewable energy sources would help agencies meet their targets even in the case of 

remote buildings. 

F. Impacts of the Rule
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1. Cost Impacts

The NOPR provided a discussion of the expected costs of meeting the fossil fuelgenerated energy consumption reduction requirements based on a study that DOE commissioned 

by PNNL in 2008 to look at the incremental costs of high performance buildings, and cost 

calculations for DOE work associated with the ASHRAE Advanced Energy Design Guides. 

DOE acknowledged that 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 

more sustainable design features. 75 FR 63410. Because of the limited data, DOE sought 

comment on cost impacts, especially any construction cost increases for buildings that Federal 

agencies are in the process of designing or have already built. 

DOE did not receive any comments providing additional specific cost information. EEI 

noted that the PNNL 2008 report stated that the cost data was very limited. (EEI, No. 10 at p. 8) 

NIBS stated that the focus on first costs is misplaced and should not be considered; DOE should 

focus on the overall life-cycle-cost of the requirements. (NIBS, No. 12 at p. 3) NRDC also stated 

that when analyzing cost impacts, DOE should look at life-cycle costs rather than increased first 

costs. (NRDC, No. 14 at p. 7) NRDC commented that past experience has shown that the cost of 

efficiency improvements tends to be lower than predicted and that the magnitude of increases in 

energy efficiency will often exceed expectations. In another comment, NRDC stated that the 

statute does not mention costs as one of the criteria for application of this rule; therefore, DOE 

should not use cost to limit the application of the rule. (NRDC, No. 14 at p. 6)
97

The AGA stated that the estimates should be based on actual quotes, not PNNL analyses 

or the ASHRAE Advanced Energy Design Guides. (AGA, No. 16 at p. 5) APGA states that 

EISA 2007 Section 433 strongly discourages any use of natural gas and subsidizes the growth of 

non fossil-fueled electricity generation, the vast majority of which will likely be produced offsite. APGA believes that, under this interpretation, EISA 2007 may reduce initial construction 

costs (relative to onsite generation) and massively increase life-cycle operating costs for utility 

services. (APGA, No. 17 at p. 6) NAD commented that the cost analysis described in the 

proposed rules showed up to an 8.7 percent cost increase for a simple building, but this will 

increase dramatically for more complex buildings, especially for buildings built in the later years 

when fossil fuel reductions near 100 percent. (NAD, No. 19 at p. 3) The DOD-AF commented 

that given the restrictive nature of the Military Construction Program (MILCON) funding 

process, it is not clear how the Air Force can implement a strategy to meet this requirement 

within the timeline discussed and whether there is a budget to implement this requirement while 

meeting current and future Air Force mission needs. (DOD-AF, No. 25C at p. 6)

DOE agrees that it is prudent to consider cost-effectiveness of energy reduction 

measures. First costs, of course, are necessary to compute cost-effectiveness. DOE notes, 

however, that per the statute, high first costs/poor cost-effectiveness are not an explicit 

consideration for today’s rulemaking. (See 42 U.S.C. 6834(a)(3)(D)) Nonetheless, DOE believes 

that minimizing costs to Federal agencies is a significant consideration, and DOE has designed 

today’s proposed rule to minimize costs and foster the most cost-effective approaches to meeting 

the statutorily mandated fossil fuel reductions. 
98

The baseline Federal building energy efficiency standards published in the past few years 

require agencies to design new Federal buildings to achieve energy consumption levels at least 

30 percent below the levels of the baseline building built to ASHRAE Standard 90.1-2010, or the 

IECC 2009 (depending on the type of building), if life-cycle cost-effective. See 78 FR 40945

(July 9 2013); 76 FR 49279 (August 10, 2011). If achieving this consumption level is not lifecycle cost-effective, Federal agencies must, at a minimum, meet ASHRAE Standard 90.1-2007, 

or the IECC 2009 (depending on the type of building). Federal agencies are already required to 

incur the costs associated with meeting these requirements. For new Federal buildings, it is only 

the additional first cost of achieving fossil fuel-generated consumption reductions beyond the 

energy efficiency improvements already required for new Federal buildings that would be 

attributable to today’s rule. Beyond those pre-existing requirements, agencies have the option of 

implementing additional energy efficiency, on-site renewable energy, or acquiring off-site 

renewable energy in accordance with procedures described earlier. The rule provides agencies 

with some alternative ways to achieve the required fossil fuel reductions, and DOE expects that 

agencies will select the most cost-effective combination of these options. 

2. Other Impacts

DOE received several comments closely associated with cost impacts. A few commenters 

expressed concern that the rulemaking discourages or encourages the use of certain fuel types or 

other forms of energy without any consideration of the comparative efficiency and 

environmental impacts of optional fuel choices. (See AGA, No. 16 at p. 2; APGA, No. 17 at pp. 

2-3) One commenter encouraged DOE to account for indirect social costs and another expressed 
99

concern that DOE might use the “social cost of carbon” in its cost/benefit analysis for this rule 

(NRDC, No. 14 at p. 7; EEI, No. 10 at pp. 8-9) 

Several comments were submitted questioning the technical and fiscal feasibility of 

meeting today’s requirements, especially the 100 percent fossil fuel reduction requirement 

starting in FY 2030. (See AGA, No. 16 at p. 2; APGA, No. 17 at p. 2; NPGA, No. 23 at pp. 2, 4; 

GTI, No. 22 at p. 14; DOD-AF, No. 25C at p. 7; EEI, Public Meeting Transcript, No. 7 at p. 53)

DOE acknowledges that achieving the reductions, especially the 100 percent reduction in 

2030, will be challenging. However, the reductions mandated today are established by statute. 

DOE expects design practices and technologies will improve and costs will decrease in coming 

years, making it easier and less costly to achieve reductions through either energy efficiency or 

the use of on-site renewable energy. If the reductions are technically impracticable in light of the 

agency's functional needs for the building after all of these provisions are implemented, as a last 

resort, Federal agencies (except for GSA) may petition the Secretary of Energy through the 

DOE’s Federal Energy Management Program (FEMP) Director for a downward adjustment to 

the numeric reduction requirement. 

Finally, DOE received several comments broadly supporting DOE’s energy conservation 

and renewable energy efforts or other energy conservation or renewable energy efforts. Some of 

these comments supported or opposed the use of certain forms of renewable and fossil energy, 

others supported specific green building measures, and others encouraged green technology 

research. DOE actively supports the research and development of a wide range of forms of 
100

renewable energy and has chosen not to narrow the renewable energy deduction in this rule to 

only certain forms of renewable energy. Many of the suggestions made by commenters are 

currently being implemented by DOE. Executive Orders 13423 and 13514 require Federal 

agencies to implement sustainable practices, GSA has established an Office of High Performance 

Green Buildings, and ECPA, as amended by EISA, requires sustainable design principles be 

applied to all new Federal buildings and major renovations of Federal buildings (42 U.S.C. 

6834(a)(3)). DOE finalized the green building certification portion of the Sustainable Design 

NOPR on INSERT DATE AND CITE.

G. Guidance and Other Topics

DOE requested specific comment in the NOPR on what additional training would help 

agencies meet the reductions called for by this statute. In addition to comments on that question, 

DOE received several unique comments as part of the Form Letter about alternative generation, 

green buildings, and transportation. 

1. Training

In the NOPR, DOE provided references to various tools to help agencies design new 

Federal buildings and major renovations to achieve the required fossil fuel reductions, and asked 

for comments on additional training or tools that might be helpful. 75 FR 63413 
101

NIBS confirmed the importance of an experienced and well-trained design team. (NIBS, 

No. 12 at p. 4) AIA commented that improvement of energy modeling tools and creation of 

early-design phase tools is necessary. AIA mentioned the need to train architects, engineers and 

other building design professionals to meet these energy targets. They also mentioned the need to 

train building owners, facility managers and inhabitants on operations and maintenance. AIA 

also recommended examining tools being used for building analysis. (AIA, No. 15 at p. 2) DODOUSOD commented that additional training should cover reconciliation of force 

protection/security requirements with sustainable design. (DOD-OUSOD, No. 25A at p. 3) ICC 

endorsed the listing of resources including the International Green Construction Code and 

ASHRAE 189.1. (ICC, No. 11 at p. 3) NRDC commented that DOE should look at real data and 

survey other agencies to understand what would make the reduction requirement “technically 

impracticable” and look at the technology available now and consider the technology in 

development, to answer this question. This would allow DOE to target resources to assist 

agencies in meeting the requirements for future years, when greater reductions in fossil fuel 

usage will be required. (NRDC, No. 14 at p. 8) 

DOE agrees about the importance of training and tools to help improve the ease and 

effectiveness of designing high-performance buildings. DOE develops, and will continue to 

develop, tools and training. This will include looking at real data and surveying agencies on new 

technologies and experience with high performance building practices, including compliance 

with the fossil fuel reduction requirements. DOE agrees it is important to reconcile force 

protection/security requirements with energy and sustainable design considerations, and will 

work with agencies to do so. 
102

As FEMP did with the existing Federal building energy efficiency standards, FEMP plans 

to hold webcasts on the new Federal baseline energy efficiency standards, and today’s fossil fuel 

reduction rule. FEMP currently keeps all material related to the Federal standards at 

http://www1.eere.energy.gov/femp/regulations/notices_rules.html. FEMP also has training 

available on all aspects of Federal energy management and conservation at 

http://apps1.eere.energy.gov/femp/training. 

In addition to the tools identified in the NOPR and the FEMP tools listed above, DOE is 

also referencing additional resources in the next section of this Notice. 

2. Verification and Monitoring

NRDC recommended that a design verification and commissioning plan be part of the 

building design to help ensure the required reductions. They also suggested that a requirement be 

included for continued measurement and monitoring of Federal buildings with mandatory 

reporting and disclosure to the public. (NRDC, No. 14 at p. 16)

DOE agrees that both building commissioning and verification of performance are 

important to ensure buildings perform as designed to achieve the required fossil fuel-generation 

energy consumption reductions. ECPA, however, provides that new Federal buildings and major 

renovations of Federal buildings shall be “designed” so that fossil fuel-generated energy 

consumption is reduced. As such, the rulemaking only covers the building design, not post-
103

occupancy. EISA section 432, however, requires that Federal agencies report and benchmark 

energy and water use for at least 75 percent of facility energy use. (42 U.S.C. 8253(f)) Agencies 

should refer to “Building Energy Use Benchmarking Guidance,” 

http://www1.eere.energy.gov/femp/regulations/guidance.html, for information and guidance on 

these requirements. 

IV. Reference Resources

DOE has prepared a list of resources to help Federal agencies address the reduction of fossil fuelgenerated energy consumption. The final rule on energy efficiency published in the Federal 

Register on December 4, 2006 (71 FR 70275) contains some 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-generated 

energy consumption reductions.

DOE is adding to this list of resources to also include: 

 U.S. Department of Energy, Federal Energy Management Program. 

(www1.eere.energy.gov/femp). FEMP provides access to numerous resources and tools 

that can help Federal agencies improve the energy efficiency of new and existing 

buildings. 
104

 U.S. Department of Energy, Building Technologies Program. Database of highperformance buildings. (eere.buildinggreen.com). 

 FedCenter. High Performance Buildings. (www.fedcenter.gov/programs/greenbuildings/).

 American Society of Heating, Refrigerating, and Air-conditioning Engineers, Inc. 

“Advanced Energy Design Guides.” (http://www.ashrae.org/technology/page/938) and 

(http://www1.eere.energy.gov/buildings/commercial_initiative/guides.html). The 

ASHRAE “Advanced Energy Design Guides (AEDGs),” developed in cooperation with 

DOE and others, are a series of publications designed to provide recommendations for 

achieving energy savings 30 percent better than the minimum code requirements of 

ANSI/ASHRAE/IESNA 90.1-2004, and cover K–12 school buildings, small retail 

buildings, small office buildings, small hospitals and healthcare facilities, highway 

lodging, and small warehouses and self-storage buildings. Additional design guides 

aimed at establishing 50 percent energy savings over the minimum code requirements of 

ANSI/ASHRAE/IESNA 90.1-2004 are being developed for small-to-medium office 

buildings, mid-box retail, highway lodging, K–12 schools, grocery/supermarket, and 

quick-serve restaurants.

 American Society of Heating, Refrigerating, and Air-conditioning Engineers, Inc. 

ANSI/ASHRAE/IESNA Standard 189.1 Standard for the Design of High-Performance 

Green Buildings. (www.ashrae.org/publications/page/927).

 Tangherlini, Daniel, Administrator, General Services Administration, Letter to Secretary 

Ernest Moniz, U.S. Department of Energy, GSA recommendations and review of green 

building certification systems, October 25, 2013. 
105

(http://www.gsa.gov/portal/content/131983?utm_source=OGP&utm_medium=printradio&utm_term=gbcertificationreview&utm_campaign=shortcuts).

 National Institute of Building Sciences. “Whole Building Design Guide.” 

(www.wbdg.org). 

 International Code Council. “International Green Construction Code.” 

(www.iccsafe.org/cs/IGCC/Pages/default.aspx).

 Northwest Energy Efficiency Alliance, Better Bricks Commercial Building Initiative, 

(www.betterbricks.com).

 Massachusetts High Performance Buildings Database. (mtc.buildinggreen.com).

 New Buildings Institute. Buildings Database. (buildings.newbuildings.org).

 Environmental Building News. BuildingGreen.com. (www.buildinggreen.com) 

(subscription required).

V. Procedural Issues and Regulatory Review

A. Review under Executive Orders 12866 and 13563

It has been determined that today's regulatory action is a “economically significant 

regulatory action” under section 3(f)(1) of Executive Order 12866. Accordingly, section 6(a)(3) 

of the Executive Order requires that DOE prepare a regulatory impact analysis (RIA) on today's 

proposed rule and that the Office of Information and Regulatory Affairs (OIRA) in the OMB 

review this proposed rule. DOE has also reviewed this regulation pursuant to Executive Order 

13563, issued on January 18, 2011. 76 FR 3281 (January 21, 2011). EO 13563 is supplemental 

to and explicitly reaffirms the principles, structures, and definitions governing regulatory review 
106

established in Executive Order 12866.

The RIA consists of: (1) A statement of the problem addressed by this regulation, and the 

mandate for government action; (2) a description and analysis of the feasible policy alternatives 

to this regulation; (3) a quantitative comparison of the impacts of the alternatives; and (4) the 

national economic impacts of the proposed standards.

The RIA calculates the effects of feasible policy alternatives to mandatory standards for 

new Federal buildings and major renovations subject to the requirements, and provides a 

quantitative comparison of the impacts of the alternatives. DOE evaluated each alternative in 

terms of its ability to achieve significant energy savings at reasonable costs, and compared it to 

the effectiveness of the proposed rule. 

DOE identified the following major policy alternatives for achieving increased energy 

efficiency:

 No new regulatory action;

 “Zero fossil fuel” alternative of immediately requiring the lowest fossil fuel-generated 

energy consumption limits specified in the rule of zero fossil fuel usage; and

 The proposed approach.

DOE also considered certain non-regulatory policy alternatives such as tax credits, rebates, and 

labeling programs, and was unable to identify any non-regulatory policy alternatives that would 

be viable for Federal buildings. DOE evaluated the alternatives in terms of cost and energy 

savings. 
107

Table V-1 Construction Cost Increases under the Fossil Fuel-Reduction Rule and “Zero 

Fossil Fuel” Alternative (relative to baseline “no-action” alternative) Calendar Years 2015-

2044

Calendar 

Year

Fossil Fuel-Reduction 

Rule - High PV1 Cost 

Scenario

(2012 $million)

Fossil FuelReduction Rule -

Low PV Cost 

Scenario

(2012 $million)

“Zero Fossil Fuel” 

Alternative - High PV 

Cost Scenario

(2012 $million)

“Zero Fossil Fuel” 

Alternative - Low PV 

Cost Scenario

(2012 $million)

2015 $30 $30 $1,194 $1,136

2016 $30 $30 $1,189 $1,103

2017 $30 $30 $1,183 $1,071

2018 $30 $30 $1,178 $1,040

2019 $30 $30 $1,173 $1,010

2020 $536 $447 $1,191 $1,005

2021 $534 $435 $1,186 $976

2022 $532 $424 $1,181 $949

2023 $530 $413 $1,175 $922

2024 $528 $402 $1,170 $896

2025 $841 $618 $1,165 $871

2026 $837 $601 $1,160 $847

2027 $834 $585 $1,155 $824

2028 $830 $569 $1,150 $801

2029 $827 $554 $1,145 $778

2030 $1,135 $736 $1,140 $757

2031 $1,130 $716 $1,140 $757

2032 $1,125 $696 $1,140 $757

2033 $1,120 $677 $1,140 $757

2034 $1,115 $658 $1,140 $757

2035 $1,110 $640 $1,140 $757

2036 $1,110 $640 $1,140 $757

2037 $1,110 $640 $1,140 $757

2038 $1,110 $640 $1,140 $757

2039 $1,110 $640 $1,140 $757

2040 $1,110 $640 $1,140 $757

2041 $1,110 $640 $1,140 $757

2042 $1,110 $640 $1,140 $757

2043 $1,110 $640 $1,140 $757

2044 $1,110 $640 $1,140 $757

 

1

“PV” references solar photovoltaic technologies.
108

Table V-2 Annualized Benefits and Costs to Federal Government for New and Existing 

Construction under the Fossil Fuel-Reduction Rule(a)

Discount Rate

Primary 

Estimate(b)

Low 

Estimate(b)

High 

Estimate(b)

Monetized

(2012 $million/year)

Benefits

Operating (Energy) Cost 

Savings

7% 349.2 336.1 468.9

3% 606.7 580.1 841.4

CO2 Reduction at $12.9/t(c) 5% 46.0 46.0 46.0

CO2 Reduction at $40.8/t(c) 3% 178.6 178.6 178.6

CO2 Reduction at $62.2/t(c) 2.50% 270.6 270.6 270.6

CO2 Reduction at $117.0/t(c) 3% 550.9 550.9 550.9

NOX Reduction at 

$2,639/t(c)

7% 2.9 2.9 2.9

3% 4.9 4.9 4.9

Total (Operating Cost 

Savings, CO2 Reduction 

and NOX Reduction)(d)

7% plus CO2

range

398 to 903 385 to 890 518 to 1023

7% 530.7 517.6 650.4

3% 790.2 763.6 1024.9

3% plus CO2

range

658 to 1163 631 to 1136 892 to 1397

Costs

Incremental Purchase Price 

Increase

7% 479.4 572.6 386.3

3% 574.6 695.6 453.5

Net Benefits/Costs

Total (Operating Cost 

Savings, CO2 Reduction 

and NOX Reduction, Minus 

Incremental Cost Increase 

to Buildings)

7% plus CO2

range

-28 to 477 -188 to 317 132 to 636

7% 104.6 -55.0 264.2

3% 215.7 68.0 571.4

3% plus CO2

range

187 to 692 -65 to 440 439 to 944
109

(a) Incremental costs are calculated for buildings constructed or renovated in 2015-2044; total benefits 

extend through 2074.

(b) The primary, low, and high estimates utilize forecasts of energy prices from the Annual Energy 

Outlook 2013 reference case. The low and high cases were based upon the percentage price 

deviations from the Annual Energy Outlook 2013 reference case as provided in the Low Economic 

Growth case and High Economic Growth case, respectively. 

(c) These values represent global values (in 2012$) of the social cost of CO2 (SCC) emissions in 2013 

under several scenarios developed by the Interagency Working Group on Social Cost of Carbon 

(SCC) (OMB 2013). The values of $12.9, $40.8, and $62.2 per metric ton are the averages of SCC 

distributions calculated using 5%, 3%, and 2.5% discount rates, respectively. The value of $117.0 

per ton represents the 95th percentile of the SCC distribution calculated using a 3% discount rate. 

For NOx, values were extracted from OMB guidance (OMB 2006) and updated to 2012$. An 

average value ($2,639) of the low ($468) and high ($4,809) values was used.

(d)

 Total monetary benefits for both the 3-percent and 7-percent cases utilize the central estimate of 

social cost of NOx and CO2 emissions calculated at a 3-percent discount rate (averaged across 

three integrated assessment models (IAMs)), which is equal to $40.8/metric ton (in 2012$).

Primary, low, and high estimates of the benefits and costs were developed to indicate the 

possible range of these metrics. The future energy prices used to compute operating cost savings 

for the primary estimate were taken from the Annual Energy Outlook 2013 reference case. The 

low estimate combines slightly lower energy prices as compared to the reference case along with 

the construction cost developed as part of the high-cost PV case (used for incremental 

construction cost). Alternatively, the high estimate combines higher energy prices relative to the 

reference case along with the construction cost developed as part of the low-cost PV case. The 

average incremental construction cost based upon the high-cost PV case and the low-cost PV 

case was used as the primary estimate of incremental construction cost.
110

Table V-3. Annualized Benefits and Costs to the Federal Government for New and Existing 

Construction under the “Zero Fossil Fuel” Alternative(a)

Discount Rate

Primary 

Estimate(b)

Low 

Estimate(b)

High 

Estimate(b)

Monetized 

(2012 $million/year)

Benefits

Operating (Energy) Cost 

Savings

7% 601.4 583.1 781.2

3% 1076.6 893.6 1259.6

CO2 Reduction at $12.9/t(c) 5% 68.6 68.6 68.6

CO2 Reduction at $40.8/t(c) 3% 257.9 257.9 257.9

CO2 Reduction at $62.2/t(c) 2.50% 388.0 388.0 388.0

CO2 Reduction at 

$117.0/t(c) 3% 793.2 793.2 793.2

NOX Reduction at 

$2,639/t(c)

7% 4.8 4.8 4.8

3% 7.1 7.1 7.1

Total (Operating Cost 

Savings, CO2 Reduction 

and NOX Reduction)(d)

7% plus CO2 

range

675 to 1399 657 to 1381 855 to 1579

7% 864.1 845.8 1043.8

3% 1341.6 1158.6 1524.7

3% plus CO2

range

1152 to 1877 969 to 1694 1335 to 2060

Costs

Incremental Purchase Price 

Increase

7% 1043.8 1167.0 920.6

3% 1021.6 1161.1 882.2

Net Benefits/Costs

Total (Operating Cost 

Savings, CO2 Reduction 

and NOX Reduction, Minus 

Incremental Cost Increase 

to Buildings)

7% plus CO2

range

-288 to 436 -510 to 214 -66 to 659

7% -99.0 -321.2 123.2

3% 320.0 -2.5 642.5

3% plus CO2

range

131 to 855 -192 to 533 453 to 1178

(a) Incremental costs are calculated for buildings constructed or renovated in 2014-2044; total benefits 

extend through 2074.

(b) See footnote (b) for Table 2.

(c) These values represent global values (in 2012$) of the social cost of CO2 (SCC) emissions in 2012 

under several scenarios developed by the Interagency Working Group on Social Cost of Carbon 

(SCC) (OMB 2013). The values of $12.9, $40.8, and $62.2 per metric ton are the averages of SCC 

distributions calculated using 5%, 3%, and 2.5% discount rates, respectively. The value of $117.0 

per ton represents the 95th percentile of the SCC distribution calculated using a 3% discount rate. 

For NOx, values were extracted from OMB guidance (OMB 2006) and updated to 2012$. An 

average value ($2,639) of the low ($468) and high ($4,809) values was used.

(d)

 Total monetary benefits for both the 3-percent and 7-percent cases utilize the central estimate of 

social cost of NOx and CO2 emissions calculated at a 3-percent discount rate (averaged across three 

integrated assessment models (IAMs)), which is equal to $40.8/metric ton (in 2012$).
111

The net benefits in 2010 dollars to the Federal government using the primary estimate for 

PV system costs turns out to be $104.6 million/year using the 7% discount rate, while it is $215.7

million/year using the 3% discount rate for the fossil fuel reduction rule (Table V-2), while the 

corresponding figures are negative $99.0 million/year using the 7% discount rate and positive 

$320 million/year using the 3% discount rate for the “zero fossil fuel” alternative to the rule

(Table V-3). 

B. Review under the Regulatory Flexibility Act

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

regulatory flexibility analysis for any rule that by law must be proposed for public comment, 

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

impact on a substantial number of small entities. As required by Executive Order 13272, Proper 

Consideration of Small Entities in Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE 

published procedures and policies on February 19, 2003, to ensure that the potential impacts of 

its rules on small entities are properly considered during the rulemaking process (68 FR 7990). 

The Department has made its procedures and policies available on the Office of General 

Counsel’s website: http://www.gc.doe.gov. 

Today’s 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 

directly regulated 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 
112

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 rulemaking will impose no new information or record keeping requirements. 

Accordingly, Office of Management and Budget (OMB) clearance is not required under the 

Paperwork Reduction Act. (44 U.S.C. 3501 et seq.) 

D. Review under the National Environmental Policy Act of 1969

DOE prepared an draft Environmental Assessment (EA) (DOE/EA-1778) entitled, 

“Environmental Assessment for Proposed Rulemaking, 10 CFR parts 433 and 435, ‘Fossil FuelGenerated Energy Consumption Reduction for New Federal Buildings and Major Renovations of 

Federal Buildings,” pursuant to the Council on Environmental Quality’s (CEQ) Regulations for 

Implementing the Procedural Provisions of the National Environmental Policy Act (40 CFR parts 

1500-1508), the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 

4321 et seq.), and DOE’s NEPA Implementing Procedures (10 CFR part 1021).
113

The draft EA addresses the possible environmental effects attributable to the 

implementation of the today’s rule. The rule by its fundamental intent has a positive impact on 

the environment. The only anticipated impact of today’s rulemaking would be a decrease in 

outdoor air pollutants resulting from reduced fossil fuel-generated energy consumption in new 

Federal buildings and major renovations of Federal buildings. 

E. Review under Executive Order 13132, “Federalism”

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), imposes certain 

requirements on agencies formulating and implementing policies or regulations that preempt 

State law or that have Federalism implications. The Executive Order requires agencies to 

examine the constitutional and statutory authority supporting any action that would limit the 

policymaking discretion of the States and to carefully assess the necessity for such actions. The 

Executive Order also requires agencies to have an accountable process to ensure meaningful and 

timely input by State and local officials in the development of regulatory policies that have 

Federalism implications. On March 14, 2000, DOE published a statement of policy describing 

the intergovernmental consultation process it will follow in the development of such regulations. 

(65 FR 13735). DOE examined this rulemaking 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.
114

F. Review under Executive Order 12988, “Civil Justice Reform”

With respect to the review of existing regulations and the promulgation of new 

regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 

(February 7, 1996), imposes on Federal agencies the general duty to adhere to the following 

requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize 

litigation; and (3) provide a clear legal standard for affected conduct, rather than a general 

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

12988 specifically requires that Executive agencies make every reasonable effort to ensure that 

the regulation: (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect 

on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, 

while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; 

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

general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of 

Executive Order 12988 requires Executive agencies to review regulations in light of applicable 

standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable 

to meet one or more of them. DOE has completed the required review and determined that, to the 

extent permitted by law, this rulemaking meets the relevant standards of Executive Order 12988.

G. Review under the Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires 

each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal 
115

governments and the private sector. For a proposed regulatory action likely to result in a rule that 

may cause the expenditure by State, local, and tribal governments, in the aggregate, or by the 

private sector of $100 million or more in any one year (adjusted annually for inflation), section 

202 of UMRA requires a Federal agency to publish a written statement that estimates the 

resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a) and (b)) 

The UMRA also requires a Federal agency to develop an effective process to permit timely input 

by elected officers of State, local, and tribal governments on a proposed “significant 

intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for 

timely input to potentially affected small governments before establishing any requirements that 

might significantly or uniquely affect small governments. On March 18, 1997, DOE published a 

statement of policy on its process for intergovernmental consultation under UMRA (62 FR 

12820) (also available at http://www.gc.doe.gov). This rulemaking contains neither an 

intergovernmental mandate nor a mandate that may result in the expenditure of $100 million or 

more in any year by State, local, and tribal governments, in the aggregate, or by the private 

sector so these requirements under the Unfunded Mandates Reform Act do not apply. 

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

Section 654 of the Treasury and General Government Appropriations Act of 1999 (Pub. 

L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule 

that may affect family well-being. This supplemental proposed rule would not have any impact 

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

concluded that it is not necessary to prepare a Family Policymaking Assessment.
116

I. Review under Executive Order 12630, "Governmental Actions and Interference with 

Constitutionally Protected Property Rights"

The Department has determined, under Executive Order 12630, “Governmental Actions 

and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 

1988), that this rule would not result in any takings which might require compensation under the 

Fifth Amendment to the United States Constitution.

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

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 

U.S.C. 3516, note) provides for agencies to review most disseminations of information to the 

public under guidelines established by each agency pursuant to general guidelines issued by 

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

guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this rulemaking

under the OMB and DOE guidelines and has preliminarily concluded that it is consistent with 

applicable policies in those guidelines.

K. Review under Executive Order 13211, “Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use”

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect 
117

Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to 

prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of 

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

action. A “significant energy action” is defined as any action by an agency that promulgated or is 

expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action 

under Executive Order 12866, or any successor order; and (2) is likely to have a significant 

adverse effect on the supply, distribution, or use of energy, or (3) is designated by the 

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

action, the agency must give a detailed statement of any adverse effects on energy supply, 

distribution, or use should the proposal be implemented, and of reasonable alternatives to the 

action and their expected benefits on energy supply, distribution, and use. This rulemaking

would not have a significant adverse effect on the supply, distribution, or use of energy. 

Moreover, as the rulemaking would result in increased building energy efficiency, it would not 

have a significant adverse effect on energy. For these reasons, the rulemaking is not a significant 

energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

L. Review Under the Information Quality Bulletin for Peer Review 

In consultation with the Office of Science and Technology Policy (OSTP), OMB issued 

on December 16, 2004, its ‘‘Final Information Quality Bulletin for Peer Review’’ (the Bulletin). 

70 FR 2664 (January 14, 2005). The Bulletin establishes that certain scientific information shall 

be peer reviewed by qualified specialists before it is disseminated by the Federal government, 

including influential scientific information related to agency regulatory actions. The purpose of 
118

the Bulletin is to enhance the quality and credibility of the government’s scientific information. 

Under the Bulletin, EIA’s CBECS and RECS are ‘‘influential scientific information,” which the 

Bulletin defines as ‘‘scientific information that the agency reasonably can determine will have or 

does have a clear and substantial impact on important public policies or private sector 

decisions.’’ 70 FR 2664, 2667 (January 14, 2005). The Academy recommendations have been 

peer reviewed pursuant to section II.2 of the Bulletin. Both surveys are peer reviewed internally 

within EIA and other DOE offices before they are published. In addition, both surveys are 

subject to public comment that EIA addresses before finalizing CBECS and RECS.

List of Subjects in 10 CFR Parts 433 and 435

Buildings and facilities, Energy conservation, Engineers, Federal buildings and facilities, Fossil 

fuel reductions, Housing, Incorporation by reference, Multi-family residential buildings.

Issued in Washington, DC, on, 2014.

_________________________________

David Danielson

Assistant Secretary

Energy Efficiency and Renewable Energy
119
120

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 STANDARDS FOR THE DESIGN AND 

CONSTRUCTION OF NEW FEDERAL COMMERCIAL AND MULTI-FAMILY HIGHRISE 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. In § 433.1, paragraph (b) is amended to read as follows: 

§ 433.1 Purpose and scope.

* * * * *

(b) This part also establishes a maximum allowable fossil fuel-generated energy consumption 

standard for new Federal buildings that are commercial and multi-family high-rise residential 

buildings and major renovations to Federal buildings that are commercial and multi-family highrise residential buildings, for which design for construction began on or after [INSERT DATE 

ONE YEAR AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 
121

3. In § 433.2:

a. Add in alphabetical order, the definitions of “Combined heat and power (CHP) system,” 

“Construction cost,” “District energy system,” “Fiscal year (FY),” “Major renovation,” “Power 

purchase agreement (PPA),” “Renewable energy certificate” and

b. Revise the definition of “Multi-family high-rise residential building,” “New Federal building”

and “Proposed Building.” 

c. Deleting the definitions of “Life-cycle cost” and “Life-cycle cost-effective.”

The additions and revisions read as follows:

§ 433.2 Definitions.

* * * * *

Combined heat and power (CHP) system means an integrated system, located at or near a 

building or facility that is used to generate both heat and electricity for use in the building or 

facility.

Construction cost means all costs associated with design and construction of a building. It 

includes the cost of design, permitting, construction (materials and labor), and building 

commissioning. It does not include legal or administrative fees, or the cost of acquiring the land.
122

* * * * *

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 only includes thermal energy systems; central 

energy supply systems that only provide electricity are excluded from this definition.

* * * * *

Fiscal year (FY) begins on October 1 of the year prior to the specified calendar year and ends on 

September 30 of the specified calendar year.

* * * * *

Major renovation means changes to a building that provide significant opportunities 

for compliance with other applicable requirements in this part. For subpart B --reduction in fossil 

fuel-related energy consumption, for example, replacement of the HVAC system, lighting 

system, building envelope, or other components of the building that have a major impact on 

energy usage would constitute a major renovation. 

Multi-family high-rise residential building means a residential building that contains 3 or more 

dwelling units and that is designed to be 4 or more stories above grade.
123

New Federal building means any new building (including a complete replacement of an existing 

building from the foundation up) to be constructed by, or for the use of, any Federal agency. 

Such term shall include buildings built for the purpose of being leased by a Federal agency, and 

privatized military housing.

* * * * *

Power purchase agreement means an agreement with an electricity producer for all or a specified 

portion of the electricity produced from a particular power source, in this case a renewable 

energy source, for a specified period of time. 

* * * * *

Proposed Building means the design for construction of a new Federal commercial or multifamily high-rise residential building, or major renovation to a Federal commercial multi-family 

high-rise residential building, proposed for construction.

Renewable energy certificate means the technology and environmental (non-energy) attributes that 

represent proof that 1 megawatt-hour (MWh) of electricity was generated from a renewable energy 

resource, and can be sold separately from the underlying generic electricity with which it is 

associated.

4. Revise § 433.3(b)(3) as follows:
124

§ 433.3 Materials incorporated by reference.

* * * * *

(b) * * *

(3) ANSI/ASHRAE/IESNA 90.1-2010, (“ASHRAE 90.1-2010”), Energy Standard for Buildings 

Except Low-Rise Residential Buildings, I-P Edition, Copyright 2010, IBR approved for §§433.2, 

433.100, 433.101, Appendix A to subpart B.

5. Revise § 433.4 as follows:

§ 433.4 Life-cycle cost-effective.

Except as specified in subparts A, B or C of this part, Federal agencies shall determine life-cycle 

cost-effectiveness by using the procedures set out in subpart A of part 436. A Federal agency 

may choose to use any of four methods, including life-cycle cost, net savings, savings-toinvestment ratio, and adjusted internal rate of return using the discount rate published in the 

annual supplement to the Life Cycle Costing Manual for the Federal Energy Management 

Program (NIST 85–3273).

6. Subpart B is revised to read as follows:

Subpart B - - Reduction in Fossil Fuel-Generated Energy Consumption 

Sec.

433.200 – Fossil fuel-generated energy consumption requirement.

433.201 – Fossil fuel-generated energy consumption determination.
125

433.202 – Petition for downward adjustment.

Appendix A to Subpart B of Part 433 – Maximum allowable fossil fuel-generated energy 

consumption

Subpart B – Reduction in Fossil Fuel-Generated Energy Consumption

§ 433.200 Fossil fuel-generated energy consumption requirement. 

(a) New Federal buildings. New Federal buildings that are commercial and multi-family high 

rise residential buildings, for which design for construction began on or after [INSERT 

DATE ONE YEAR AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER], must be designed to meet the requirements of paragraph (c) or (d) of this 

section, as applicable, 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 is at least $2,500,000 (in 2007 dollars, adjusted for 

inflation).

(b) Major renovations. (1) Major renovations to Federal buildings that are commercial and 

multi-family high-rise residential buildings, for which design for construction began on or 
126

after [INSERT DATE ONE YEAR AFTER DATE OF PUBLICATION IN THE 

FEDERAL REGISTER], must be designed to meet the requirements of paragraph (c) or (d) 

of this section, as applicable, if:

(i) The renovation is a major renovation to 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

(ii) The cost of the major renovation is at least $2,500,000 (in 2007 dollars, adjusted 

for inflation).

(2) This subpart applies only to the portions of the proposed building or proposed 

building systems that are being renovated and to the extent that the scope of the 

renovation permits compliance with the applicable requirements in this subpart. 

Unaltered portions of the proposed building or proposed building systems are not 

required to comply with this subpart. 

(3) For leased buildings, this subpart applies to major renovations only if the building 

was originally built for the use of any Federal agency, including being leased by a 

Federal agency.

(c) Federal buildings that are of the type included in Appendix A of this subpart
127

(1) Design for construction began during fiscal year 2014 through fiscal year 2029. The 

fossil fuel-generated energy consumption of the proposed building, based on the building 

design and calculated according to §433.201(a), must not exceed the value identified in 

Tables 1-4 of Appendix A of this subpart for the associated building type, climate zone, 

and fiscal year in which design for construction began. 

(2) Design for construction began during or after fiscal year 2030. The fossil fuelgenerated energy consumption of the proposed building, based on building design and 

calculated according to §433.201(a), must be zero.

(3) Mixed-use buildings. For buildings that combine two or more building types 

identified in Tables 1-4 of Appendix A of this subpart, the maximum allowable fossil 

fuel-generated energy consumption of the proposed building is equal to the averaged 

applicable building type values in Tables 1-4 weighted by floor area of the present 

building types.

For example, if a proposed building for which design for construction began in FY2014 

that is to be built in climate zone 1 has a total of 200 square feet -- 100 square feet of 

which qualifies as College/University and 100 square feet of which qualifies as 

Laboratory -- the maximum allowable fossil fuel-generated energy consumption is equal 

to: 

[(100 sqft. X 89 kBtu/yr.-sqft.) + (100 sqft X 251 kBtu/yr.-sqft.)] / 200sqft. = 170 

kBtu/yr.-sqft. 
128

(d) Federal buildings that are of the type not included in Appendix A of this subpart 

(1) Process load buildings. For building types that are not included in any of the building 

types listed in Tables 1-4 of Appendix A of this subpart, Federal agencies must select the 

applicable building type, climate zone, and fiscal year in which design for construction 

began from Tables 1-4 of Appendix A that most closely corresponds to the proposed 

building without the process load. The estimated fossil fuel-generated energy 

consumption of the process load must be added to the maximum allowable fossil fuelgenerated energy consumption of the applicable building type for the appropriate fiscal 

year and climate zone to calculate the maximum allowable fossil fuel-generated energy 

consumption for the building. The same estimated fossil fuel-generated energy 

consumption of the process load that is added to the maximum allowable fossil fuelgenerated energy consumption of the applicable building must also be used in 

determining the fossil fuel-generated energy consumption of the proposed building. 

(2) Mixed-use buildings. For buildings that combine two or more building types with 

process loads or, alternatively, that combine one or more building types with process 

loads with one or more building types in Tables 1-4 of Appendix A of this subpart, the 

maximum allowable fossil fuel-generated energy consumption of the proposed building is 

equal to the averaged process load building values determined under paragraph (1) and 

the applicable building type values in Tables 1-4, weighted by floor area. 
129

§ 433.201 Fossil fuel-generated energy consumption determination. 

(a) The fossil fuel-generated energy consumption of a proposed building is calculated as follows: 

Equation 1: Fossil fuel-generated energy consumption = ((3.412 kBtu/kwh X Fossil Fuel 

Generation Factor X (Proposed Building Site Electricity Consumption – Renewable Energy and 

CHP Electricity Deduction) / Electricity Source Energy Factor) + (Direct Fossil Fuel 

Consumption of Proposed Building X Other Fuels Source Energy Multiplier)) / Floor Area 

Whereas:

(1) Fossil Fuel-Generation Factor is equal to (AEPcoal+AEPpl+AEPpc+AEPng+AEPog)/Total AEP

Where

 AEP = annual electrical production

 pl= petroleum liquids

 pc=petroleum coke

 ng= natural gas

 og = other gas

All values are taken from Table 3.2.A of the EIA Electric Power Annual Report, which is 

updated on a periodic basis. DOE will on an annual basis calculate the Fossil Fuel Generation 

Factor and publish the result at the following web address: http://energy.gov/eere/femp/federalenergy-management-program

(2) Proposed Building Site Electricity Consumption equals the estimated site electricity 

consumption of the proposed building calculated in accordance with the Performance Rating 

Method in Appendix G of ASHRAE 90.1-2010 (incorporated by reference; see §433.3) 

measured in kilowatt hours per year (kWh/yr).
130

(3) Renewable Energy and CHP Electricity Deduction equals the total contribution specified in 

paragraph (b) of this section, measured in kilowatt hours per year (kWh/yr). 

(4) Electricity Source Energy Factor For electricity purchased from the grid, the Electricity 

Source Energy Factor is equal to 0.316. For on-site electrical generation, the Electricity Source 

Factor is the estimated efficiency of the generating equipment and any estimated distribution 

losses that may occur.

 

(5) Direct Fossil Fuel Consumption of Proposed Building equals the total site fossil fuel 

consumption of the proposed building calculated in accordance with the Performance Rating 

Method in Appendix G of ASHRAE 90.1-2010 (incorporated by reference; see §433.3), 

excluding fossil fuel consumption for electricity generation, and measured in thousands of 

British thermal units per year (kBtu/yr). This includes any fossil fuel consumption attributable to 

non-electric power (e.g., heat or steam) used in a proposed building that is supplied by a district 

energy system or CHP system. 

(6) Other Fuels Source Energy Multiplier For purposes of Equation 1, the multipliers are as 

follows:

Natural gas 1.046

Fuel oil 1.00

Propane 1.00

District steam (non-CHP) 1.35
131

District steam (CHP) 2.30

District hot water 1.28

Chilled water 1.05

Coal 1.00

(7) Floor Area is the area enclosed by the exterior walls of a building, both finished and 

unfinished, including indoor parking facilities, basements, hallways, lobbies, stairways, and 

elevator shafts. 

(b) Renewable and CHP electricity deductions.

(1) Renewable electricity. The following renewable electricity generation qualifies as a 

deduction under paragraph (a) of this section to the extent that the renewable electricity 

generation represents new electric generating capacity or a new renewable energy obligation on 

the part of the agency, and not a reassignment of existing capacity or obligations: 

(i) On-site renewable electricity generation is the amount of electricity measured in 

kilowatt hours per year (kWh/yr) to be consumed by the building that is contributed 

by renewable electricity generated at the Federal site or facility on which the building 

will be located. On-site renewable electricity can only be deducted if the 

environmental attributes are not transferred. 

 

(ii) Off-site renewable electricity generation is the amount of renewable electricity 
132

measured in kilowatt hours per year (kWh/yr) generated at a site or facility, either 

Federal or non-federal, other than the Federal site or facility on which the building 

will be located and that is designated for the purpose of complying with this

section, and may include renewable electricity generation purchased under Power 

Purchase Agreements and Renewable Energy Certificates. 

(2) Limitation on the use of renewable electricity generation for new Federal buildings and major 

renovations. The environmental attributes of the renewable electricity generation must not be 

transferred. The agency must ensure that the environmental attributes of renewable electricity

generation are dedicated to meeting the fossil fuel-generated energy consumption reduction 

requirements of the proposed building. 

(3) CHP deduction. Electricity associated with non-electric power provided to a proposed 

building by a district energy system that is a CHP system or an on-site CHP system qualifies as a 

deduction under paragraph (a) and is equal to the total heat delivered to the proposed building 

from the direct energy system divided by total heat produced by the CHP system, times the total 

electricity produced by the CHP system. 

§433.202 Petition for downward adjustment.

(a) New Federal buildings. (1) Upon petition by a Federal agency, excluding the General 

Services Administration (GSA) but including GSA-tenant agencies with significant control over 

building design, the Director of the Federal Energy Management Program may adjust the 
133

applicable maximum allowable fossil fuel-generated energy consumption standard with respect 

to a specific building, upon written certification from the head of the agency designing the 

building, or the head of a GSA-tenant agency, that the requested adjustment is the largest 

feasible reduction in fossil fuel-generated consumption that can practicably be achieved in light 

of the specified functional needs for that building, as demonstrated by:

(i) A statement sealed by the design engineer that the proposed building was 

designed in accordance with the applicable energy efficiency requirement 

in subpart A of this Part;

(ii) A description of the technologies and practices that were evaluated and 

rejected, including a justification of why they were not included in the 

design for construction; and

(iii) Any other information the agency determines would help explain its 

request;

(2) The head of the agency designing the building, or the head of a GSA-tenant agency, 

must also include the following information in the petition: 

(i) A general description of the building, including but not limited to location, use type, 

floor area, stories, and functional needs;

(ii) The maximum allowable fossil fuel-generated energy consumption for the building 

from Tables 1-4 of Appendix A of this subpart;
134

(iii) The estimated fossil fuel-generated energy consumption of the proposed building;

(iv) A description of the proposed building’s energy-related features, including but not 

limited to:

(A) Building envelope, including, but not limited to, construction materials, 

insulation levels, and the type, area, heat loss and solar heat gain and visible light 

transmission coefficients of windows and other glazing;

(B) HVAC system type and configuration;

(C) HVAC equipment sizes and efficiencies;

(D) Ventilation systems (including outdoor air volume, controls technique, heat 

recovery systems, and economizers, if applicable);

(E) Service water heating system configuration and equipment (including solar 

hot water, wastewater heat recovery, and controls for circulating hot water 

systems, if applicable);

(F) Lighting technology, interior lighting power, and lighting control techniques;
135

(G) Estimated process and plug loads; and

(H) Any other energy-related equipment; and

(3) The Director of the Federal Energy Management Program may concur in whole or in part 

with a petition. Upon concurring in part, the Director of the Federal Energy Management 

Program will establish an applicable maximum allowable fossil fuel-generated energy 

consumption standard with respect to a specific building other than the value put forth in the 

petition. 

(4) Petitions for downward adjustment should be submitted to ff-petition@ee.doe.gov , or to:

U.S. Department of Energy

Federal Energy Management Program

Director

Fossil Fuel Reductions in New Federal Buildings

EE-2L

1000 Independence Ave., SW

Washington, D.C. 20585-0121

(5) The Director will notify the requesting agency in writing whether the petition for downward 

adjustment to the numeric reduction requirement is approved, in whole or in part, or rejected, 

within 90 days of submittal. If the Director rejects -the petition or establishes a value other than 

that presented in the petition, the Director will forward its reasons for rejection to the petitioning 

agency.

(b) Major renovations to Federal buildings. (1) Major renovation of the whole building. Upon 

petition by a Federal agency, excluding the General Services Administration (GSA) but 
136

including GSA-tenant agencies with significant control over renovation design, the Director of 

the Federal Energy Management Program will adjust the applicable maximum allowable fossil 

fuel-generated energy consumption standard with respect to a specific major renovation of a 

whole building, upon written certification from the head of the agency designing the building, or 

the head of a GSA-tenant agency, that the requested adjustment is the largest feasible reduction 

in fossil fuel-generated consumption that can practicably be achieved in light of the specified 

functional needs for that building, as demonstrated by a statement stamped by the design 

engineer that the proposed building was designed consistent with the energy efficiency 

requirement in subpart A of this Part that corresponds to the date of the proposed building. 

(2) Major renovation of a building system or component. Upon petition by a Federal agency, 

excluding the General Services Administration (GSA) but including GSA-tenant agencies with 

significant control over renovation design, the Director of the Federal Energy Management 

Program will adjust the applicable maximum allowable fossil fuel-generated energy consumption 

standard with respect to a specific major renovation limited to a building system or component, 

upon written certification from the head of the agency designing the building, or the head of a 

GSA-tenant agency, that the requested adjustment is the largest feasible reduction in fossil fuelgenerated consumption that can practicably be achieved in light of the specified functional needs 

for that building, as demonstrated by a statement stamped by the design engineer that the 

proposed building incorporates commercially available systems and/ or components that provide 

a level of energy efficiency that is life-cycle cost effective. 

(3) Petitions for downward adjustment should be submitted to ff-petition@ee.doe.gov, or to:
137

U.S. Department of Energy

Federal Energy Management Program

Director

Fossil Fuel Reductions in New Federal Buildings

EE-2L

1000 Independence Ave., SW

Washington, D.C. 20585-0121

(4) The downward adjustment for a major renovation will be deemed approved upon submittal of 

the certification required in paragraph (1) or (2), as applicable. 
138

Appendix A to Subpart B of Part 433

Appendix A to Subpart B of Part 433 – Maximum allowable fossil fuel-generated energy consumption

For purposes of the tables in this Appendix, the climate zones for each county in the United States are those listed in Normative 

Appendix B Building Envelope Climate Criteria, Table B-1 US Climate Zones, ASHRAE 90.1-2010 (incorporated by reference; see 

§433.3).

For purpose of Appendix A, the following definitions apply:

Education means a category of 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 as 

a 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."

Food Sales means a category of buildings used for retail or wholesale of food. For example, grocery stores are “Food Sales.”

Food Service means a category of buildings used for preparation and sale of food and beverages for consumption. For example, 

restaurants are “Food Service.”

Health Care (Inpatient) means a category of buildings used as diagnostic and treatment facilities for inpatient care.

Health Care (Outpatient) means a category of 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).

Laboratory means a category of buildings equipped for scientific experimentation or research as well as other technical, analytical and 

administrative activities. 
139

Lodging means a category of buildings used to offer multiple accommodations for short-term or long-term residents, including skilled 

nursing and other residential care buildings.

Mercantile (Enclosed and Strip Malls) means a category of shopping malls comprised of multiple connected establishments.

Multi-Family High-Rise Residential Buildings means a category of residential buildings that contain 3 or more dwelling units and that 

is designed to be 4 or more stories above grade.

Office means a category of buildings used for general office space, professional office, or administrative offices. Medical offices are 

included here if they do not use any type of diagnostic medical equipment (if they do, they are categorized as an outpatient health care 

building).

Public Assembly means a category of public or private buildings, or spaces therein, in which people gather for social or recreational 

activities.

Public Order and Safety means a category of buildings used for the preservation of law and order or public safety.

Religious Worship means a category of buildings in which people gather for religious activities, (such as chapels, churches, mosques, 

synagogues, and temples).

Retail (Other Than Mall) means a category of buildings used for the sale and display of goods other than food.

Service means a category of buildings in which some type of service is provided, other than food service or retail sales of goods.

Warehouse and Storage means a category of buildings used to store goods, manufactured products, merchandise, raw materials, or 

personal belongings (such as self-storage).
140

Table 1 - FY2013-FY2014 Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Category, Building Type 

and Climate Zone, 

Commercial Buildings and Multi-Family High-Rise Residential Buildings (source kBtu/yr-sqft)

Building 

Category

Climate Zone: 1 2A 2B 3A 3B 

Coast

3B 

Other 3C 4A 4B 4C 5A 5B 6A 6B 7 8

Building Type Fossil Fuel-Generated Energy Use Intensity (source kBtu/yr-sqft)

Education College/

university 89 88 87 81 59 84 71 73 65 70 77 65 92 82 97 146

Education Elementary/

middle school 54 54 52 49 40 50 45 41 39 39 42 37 47 43 48 71

Education High school 65 65 63 59 43 61 52 53 48 51 56 48 67 60 71 106

Education

Other classroom 

education 36 36 35 33 24 34 29 30 27 29 31 27 37 33 40 59

Education

Preschool/

daycare 70 69 67 63 52 65 58 53 50 51 54 47 60 56 62 92

Food Sales

Convenience 

store 194 215 208 197 178 213 189 164 173 181 166 153 181 200 199 259

Food Sales

Convenience 

store with gas 156 173 167 158 144 171 152 132 139 146 133 124 145 161 160 209

Food Sales

Grocery store/

food market 162 179 173 164 149 177 158 137 144 151 138 128 150 167 166 216

Food Sales Other food sales 49 54 52 50 45 54 48 41 44 46 42 39 46 50 50 65

Food 

Service Fast food 378 395 402 358 333 407 338 303 323 327 308 286 339 373 375 490

Food 

Service

Other food 

service 112 117 118 106 97 120 100 90 96 98 91 84 100 110 111 144

Food 

Service

Restaurant/ 

cafeteria 204 214 216 195 177 219 183 164 175 180 166 154 182 202 203 264

Inpatient 

Health Care

Hospital/ 

inpatient health 205 210 215 182 188 212 174 142 149 156 129 120 133 146 137 163

Laboratory Laboratory 251 254 247 233 197 245 217 196 190 192 203 184 229 216 238 320

Lodging Dormitory/ 

fraternity/sorority 58 61 61 62 42 63 56 58 53 59 65 55 76 70 84 118
141

Lodging Hotel 71 73 70 67 62 70 68 55 57 57 57 55 62 62 64 74

Lodging Motel or inn 80 76 76 66 63 73 65 52 54 52 52 50 57 55 56 68

Lodging Nursing home/ 

assisted living 118 12 117 110 93 115 103 93 90 91 96 87 108 102 112 151

Lodging Other lodging 76 73 72 63 60 69 62 50 52 50 50 48 54 53 54 65

Mercantile Enclosed mall 81 81 79 77 58 78 68 69 64 66 77 67 91 84 99 143

Mercantile Strip shopping Mall 85 85 83 81 61 82 72 72 67 69 81 70 96 89 104 150

Office

Administrative/ 

profess. office 56 58 57 54 43 56 47 46 43 44 48 42 54 50 57 80

Office

Bank/other 

financial 80 82 80 77 62 79 67 65 61 62 67 59 77 71 81 114

Office

Government 

office 70 72 71 67 54 70 59 57 54 55 59 52 68 62 71 100

Office

Medical office 

(non-diagnostic) 48 49 48 46 37 48 40 39 37 37 40 36 46 42 48 68

OfficeMixed-use office 65 67 65 63 50 65 54 53 50 51 55 48 63 58 66 93

Office Other office 54 56 55 52 42 54 45 44 42 42 46 40 52 48 55 78

Outpatient 

Health Care

Clinic/other 

outpatient health 72 70 70 63 60 70 56 48 50 46 45 44 47 48 45 52

Outpatient 

Health Care

Medical office 

(diagnostic) 48 46 47 42 40 46 38 32 33 31 30 30 32 32 30 35

Public AssemblyEntertainment/ 

culture 33 33 32 30 26 32 28 26 25 25 26 24 30 28 31 42

Public Assembly Library 86 87 85 80 68 84 75 68 65 66 70 63 79 74 82 110

Public AssemblyOther public 

assembly 40 40 39 37 31 39 34 31 30 30 32 29 36 34 38 51

Public Assembly Recreation 37 38 37 35 29 36 32 29 28 29 30 27 34 32 35 47

Public 

Assembly Social/meeting 39 39 38 36 31 38 34 30 29 30 31 28 35 33 37 49

Public Fire station/ 92 93 91 86 73 90 80 72 70 71 75 68 84 80 88 118
142

Order & 

Safety

police station 

Public Order & 

Safety

Other public 

order and safety 84 85 83 78 66 82 73 66 64 65 68 62 77 73 80 107

Religious 

Worship Religious worship 33 33 32 31 26 32 29 26 25 25 27 24 30 28 31 42

Retail (except 

malls)

Other retail 70 72 70 68 50 69 59 60 56 56 66 58 79 73 85 123

Retail (except 

malls)

Retail store 40 41 40 39 28 39 34 34 32 32 38 33 45 42 49 71

Retail (except 

malls)

Vehicle 

dealership

showroom 

71 72 70 68 50 69 59 60 56 57 67 58 79 73 85 123

Service Other service 85 86 84 79 65 83 71 67 63 64 69 66 76 70 81 104

Service Post office/postal 

center 

60 61 59 56 47 59 52 47 45 46 49 44 55 52 57 77

Service Repair shop 40 40 39 37 31 39 34 32 30 30 33 31 36 33 38 49

Service Vehicle service/ 

repair shop 46 47 46 43 36 45 39 37 34 35 38 36 42 38 44 57

Service Vehicle storage/ 

maintenance 20 20 20 19 15 20 17 16 15 15 16 16 18 17 19 25

Warehouse Distribution/ 

shipping center 18 23 24 26 14 26 20 27 24 23 35 32 49 41 59 108

Warehouse

Non-refrigerated 

warehouse 

9 11 11 137 129 13 12 11 17 15 24 20 29 52

Warehouse

Refrigerated 

warehouse 97 100 102 90 81 101 80 75 78 79 74 68 82 89 90 123

Residential

Multi-family 

high-rise 

residential

48 46 39 41 24 40 28 41 37 41 45 38 52 46 55 72
143

Table 2 - FY2015-FY2019 Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Category, Building 

Type and Climate Zone, Commercial Buildings and Multi-Family High-Rise Residential Buildings (source kBtu/yr-sqft)

Building 

Category

Climate Zone: 1 2A 2B 3A 3B 

Coast

3B 

Other

3C 4A 4B 4C 5A 5B 6A 6B 7 8

Building Type Fossil Fuel-Generated Energy Use Intensity (source kBtu/yr-sqft)

Education College/

university 69 69 67 63 46 65 55 56 51 55 60 51 71 64 76 113

Education Elementary/ 

middle school 42 42 40 38 31 39 35 32 30 31 32 29 36 34 37 56

Education High school 51 50 49 46 34 48 40 41 37 40 44 37 52 47 55 83

Education Other classroom 

education 28 28 28 26 19 27 23 23 21 22 24 21 29 26 31 46

Education Preschool/

daycare 55 54 52 49 40 50 45 41 39 39 42 37 47 43 48 72

Food Sales Convenience 

store 151 167 161 153 139 165 147 128 134 141 129 119 140 156 155 202

Food Sales Convenience 

store with gas

122 135 130 123 112 133 119 103 108 113 104 96 113 125 125 163

Food Sales

Grocery 

store/food 

market 

126 139 135 127 116 138 123 106 112 117 107 99 117 130 129 168

Food Sales Other food sales 38 42 41 39 35 42 37 32 34 36 32 30 35 39 39 51

Food 

Service Fast food 294 307 313 279 259 317 263 235 251 255 239 222 264 290 292 381

Food 

Service

Other food 

service 87 91 92 83 75 93 78 70 74 76 71 66 78 86 86 112

Food 

Service

Restaurant/ 

cafeteria 159 166 168 151 138 170 143 128 136 140 129 120 142 157 158 206

Inpatient 

Health 

Care

Hospital/ 

inpatient health 159 164 167 142 146 165 136 111 116 121 100 93 103 113 107 127
144

Laboratory Laboratory 195 197 192 182 153 190 169 153 148 150 158 143 178 168 185 249

Lodging

Dormitory/ 

fraternity/

sorority 

45 48 47 48 32 49 44 45 41 46 50 43 59 54 65 92

Lodging Hotel 56 57 54 52 48 55 53 43 44 44 44 43 48 48 49 58

Lodging Motel or inn 62 59 59 52 49 57 51 41 42 41 41 39 44 43 44 53

Lodging Nursing home/ 

assisted living 92 93 91 86 72 90 80 72 70 71 75 67 84 79 87 117

Lodging Other lodging 59 56 56 49 47 54 49 39 40 39 39 37 42 41 42 51

Mercantile Enclosed mall 63 63 62 60 45 61 53 53 50 51 60 52 71 66 77 111

Mercantile Strip shopping 

mall 66 66 65 63 47 64 56 56 52 54 63 54 74 69 81 117

Office Administrative/ 

profess. office 44 45 44 42 34 43 36 36 33 34 37 32 42 39 44 63

Office Bank/other 

financial 62 64 62 60 48 62 52 51 48 49 52 46 60 55 63 89

Office Government 

office 55 56 55 52 42 54 46 45 42 43 46 40 53 48 55 78

Office Medical office 

(non-diagnostic) 37 38 37 36 29 37 31 30 29 29 31 28 36 33 38 53

Office Mixed-use office 51 52 51 49 39 50 42 41 39 40 43 38 49 45 51 72

Office Other office 42 44 43 41 33 42 35 35 32 33 36 31 41 37 43 60

Outpatient 

Health 

Care

Clinic/other 

outpatient health 56 54 55 49 46 54 44 37 39 36 35 35 37 37 35 40

Outpatient 

Health 

Care

Medical office 

(diagnostic) 37 36 36 32 31 36 29 25 26 24 23 23 25 25 23 27

Public 

Assembly

Entertainment/ 

culture 25 26 25 24 20 25 22 20 19 20 21 19 23 22 24 32

Public 

Assembly Library 67 68 66 62 53 65 58 53 51 51 54 49 61 58 64 86

Public Other public 31 31 30 29 24 30 27 24 23 24 25 23 28 27 29 39
145

Assembly assembly 

Public 

Assembly Recreation 29 29 29 27 23 28 25 23 22 22 23 21 26 25 27 37

Public 

Assembly Social/meeting 30 31 30 28 24 29 26 24 23 23 24 22 28 26 29 38

Public 

Order & 

Safety

Fire station/ 

police station 72 73 71 67 56 70 62 56 54 55 58 53 66 62 68 92

Public 

Order & 

Safety

Other public 

order and safety 65 66 65 61 51 64 57 51 50 50 53 48 60 56 62 83

Religious 

Worship

Religious 

worship 26 26 25 24 20 25 22 20 19 20 21 19 23 22 24 33

Retail 

(except 

malls)

Other retail 55 56 55 53 39 53 46 47 44 44 52 45 61 57 66 96

Retail 

(except 

malls)

Retail store 31 32 31 30 22 31 26 27 25 25 30 26 35 32 38 55

Retail 

(except 

malls)

Vehicle 

dealership 

showroom 

55 56 55 53 39 54 46 47 44 44 52 45 62 57 66 96

Service Other service 66 67 65 61 51 64 55 52 49 50 54 51 59 55 63 81

Service Post office/postal 

center 47 47 46 43 37 46 40 37 35 36 38 34 43 40 44 60

Service Repair shop 31 31 31 29 24 30 26 25 23 23 25 24 28 26 30 38

Service Vehicle service/ 

repair shop 36 36 36 34 28 35 30 28 27 27 29 28 33 30 34 44

Service Vehicle storage/ 

maintenance 16 16 15 15 12 15 13 12 12 12 13 12 14 13 15 19

Warehouse Distribution/ 

shipping center 14 18 18 20 11 20 15 21 19 18 27 25 38 32 46 84

Warehouse Non-refrigerated 789 105 107 1099 13 12 18 15 22 41
146

warehouse 

Warehouse Refrigerated 

warehouse 76 78 79 70 63 78 62 58 61 61 58 53 64 69 70 96

Residential

Multi-family 

high-rise 

residential

37 36 30 32 18 31 22 32 29 32 35 30 40 36 42 56

Table 3 - FY2020-FY2024 Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Category, Building 

Type and Climate Zone, Commercial Buildings and Multi-Family High-Rise Residential Buildings (source kBtu/yr-sqft)

Building 

Category

Climate Zone: 1 2A 2B 3A 3B 

Coast

3B 

Other

3C 4A 4B 4C 5A 5B 6A 6B 7 8

Building Type Fossil Fuel-Generated Energy Use Intensity (source kBtu/yr-sqft)

Education College/

university 40 39 39 36 26 37 32 32 29 31 34 29 41 36 43 65

Education Elementary/ 

middle school 24 24 23 22 18 22 20 18 17 17 19 16 21 19 21 32

Education High school 29 29 28 26 19 27 23 24 21 23 25 21 30 27 32 47

Education Other classroom 

education 16 16 16 15 11 15 13 13 12 13 14 12 17 15 18 26

Education Preschool/

daycare 31 31 30 28 23 29 26 24 22 23 24 21 27 25 28 41

Food Sales Convenience 

store 86 95 92 87 39 95 84 73 77 81 74 68 80 89 88 115

Food Sales Convenience 

store with gas 70 77 74 70 64 76 68 59 62 65 59 55 65 72 71 93

Food Sales Grocery store/

food market 72 80 77 73 66 79 70 61 64 67 61 57 67 74 74 96

Food Sales Other food sales 22 24 23 22 20 24 21 18 19 20 19 17 20 22 22 29

Food 

Service Fast food 168 175 179 159 148 181 150 135 144 146 137 127 151 166 167 218

Food 

Service

Other food 

service 50 52 52 47 43 53 45 40 42 44 40 37 44 49 49 54
147

Food 

Service

Restaurant/ 

cafeteria 91 95 96 86 79 97 81 73 78 80 74 69 81 90 90 117

Inpatient 

Health Care

Hospital/ 

inpatient health 91 94 95 81 83 94 77 63 66 69 57 53 59 65 61 73

Laboratory Laboratory 112 113 110 104 88 109 97 87 84 86 90 82 102 96 106 142

Lodging

Dormitory/ 

fraternity/

sorority 

26 27 27 27 19 28 25 26 23 26 29 24 34 31 37 52

Lodging Hotel 32 33 31 30 27 31 30 25 25 25 25 24 28 28 28 33

Lodging Motel or inn 36 34 34 29 28 32 29 23 24 23 23 22 25 25 25 30

Lodging Nursing home/ 

assisted living 53 53 52 49 41 51 46 41 40 40 43 39 48 45 50 67

Lodging Other lodging 34 32 32 28 27 31 28 22 23 22 22 21 24 23 24 29

Mercantile Enclosed mall 36 36 35 34 26 35 30 31 29 29 34 30 41 37 44 63

Mercantile Strip shopping 

mall 38 38 37 36 27 36 32 32 30 31 36 31 43 39 46 67

Office Administrative/ 

profess. office 25 26 25 24 19 25 21 20 19 20 21 19 24 22 25 36

Office Bank/other 

financial 35 37 36 34 27 35 30 29 27 28 30 26 34 31 36 51

Office Government 

office 31 32 31 30 24 31 26 26 24 24 26 23 30 28 32 45

Office Medical office 

(non-diagnostic) 21 22 21 20 16 21 18 17 16 17 18 16 21 19 21 30

Office Mixed-use office 29 30 29 28 22 29 24 24 22 23 24 21 28 26 29 41

Office Other office 24 25 24 23 19 24 20 20 18 19 20 18 23 21 24 35

Outpatient 

Health Care

Clinic/other 

outpatient health 32 31 31 28 26 31 25 21 22 20 20 20 21 21 20 23

Outpatient 

Health Care

Medical office 

(diagnostic) 21 21 21 19 18 21 17 14 15 14 13 13 14 14 13 15

Public 

Assembly

Entertainment/ 

culture 15 15 14 14 11 14 13 11 11 11 12 11 13 13 14 19

Public Library 38 39 38 36 30 37 33 30 29 29 31 28 35 33 36 49
148

Assembly

Public 

Assembly

Other public 

assembly 18 18 17 16 14 17 15 14 13 14 14 13 16 15 17 23

Public 

Assembly Recreation 17 17 16 15 13 16 14 13 13 13 13 12 15 14 16 21

Public 

Assembly Social/meeting 17 17 17 16 14 17 15 13 13 13 14 13 16 15 16 22

Public Order 

& Safety

Fire station/ 

police station 41 41 40 38 32 40 36 32 31 32 33 30 38 35 39 52

Public Order 

& Safety

Other public 

order and safety 37 38 37 35 29 36 32 29 28 29 30 27 34 32 35 48

Religious 

Worship

Religious 

worship 15 15 14 14 12 14 13 11 11 11 12 11 13 13 14 19

Retail 

(except 

malls)

Other retail 31 32 31 30 22 30 26 27 25 25 30 26 35 32 38 55

Retail 

(except 

malls)

Retail store 18 18 18 17 14 17 15 15 14 14 17 15 20 19 22 31

Retail 

(except 

malls)

Vehicle 

dealership 

showroom 

31 32 31 30 22 31 26 27 25 25 30 26 35 32 38 55

Service Other service 38 38 37 35 29 37 32 30 28 28 31 29 34 31 36 46

Service Post office/postal 

center 

27 27 26 25 21 26 23 21 20 20 22 20 24 23 25 34

Service Repair shop 18 18 18 17 14 17 15 14 13 13 14 14 16 15 17 22

Service Vehicle service/ 

repair shop 21 21 20 19 16 20 17 16 15 16 17 16 19 17 20 25

Service Vehicle storage/ 

maintenance 

999879877777879 11

Warehouse Distribution/ 

shipping center 

8 10 11 126 119 12 11 10 16 14 22 18 26 48

Warehouse Non-refrigerated 455636465587 119 13 23
149

warehouse 

Warehouse Refrigerated 

warehouse 43 45 45 40 36 45 36 33 35 35 33 30 36 39 40 55

Residential

Multi-family 

high-rise 

residential

21 20 17 18 11 18 12 18 16 18 20 17 23 21 24 32

Table 4 - FY2025-FY2029 Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Category, Building 

Type and Climate Zone, Commercial Buildings and Multi-Family High-Rise Residential Buildings (source kBtu/yr-sqft)

Building 

Category

Climate Zone: 1 2A 2B 3A 3B 

Coast

3B 

Other

3C 4A 4B 4C 5A 5B 6A 6B 7 8

Building Type Fossil Fuel-Generated Energy Use Intensity (source kBtu/yr-sqft)

Education College/

university 20 20 19 18 13 19 16 16 15 16 17 14 20 18 22 32

Education Elementary/

middle school 12 12 12 11 9 11 10 9 9 9 9 8 10 10 11 16

Education High school 14 14 14 13 10 14 12 12 11 11 13 11 15 13 16 24

Education Other classroom 

education 8 8 8 7 5 8 6 7 6 6 7 6 8 7 9 13

Education Preschool/

daycare 16 15 15 14 12 14 13 12 11 11 12 11 13 12 14 20

Food Sales Convenience 

store 

43 48 46 44 40 47 42 36 38 40 37 34 40 44 44 58

Food Sales Convenience 

store with gas 35 38 37 35 32 38 34 29 31 32 30 27 32 36 36 46

Food Sales Grocery store/

food market 36 40 38 36 33 39 35 30 32 34 31 28 33 37 37 48

Food Sales Other food sales 11 12 12 11 10 12 11 9 10 10 9 9 10 11 11 15

Food 

Service Fast food 84 88 89 80 74 90 75 67 72 73 68 63 75 83 83 109

Food 

Service

Other food 

service 25 26 26 24 21 27 22 20 21 22 20 19 22 25 25 32
150

Food 

Service

Restaurant/ 

cafeteria 45 48 48 43 39 49 41 36 39 40 37 34 41 45 45 59

Inpatient 

Health Care

Hospital/ 

inpatient health 45 47 48 41 42 47 39 32 33 35 29 27 29 32 30 36

Laboratory Laboratory 56 56 55 52 44 54 48 44 42 43 45 41 51 48 53 71

Lodging

Dormitory/ 

fraternity/

sorority 

13 14 14 149 14 13 13 12 13 14 12 17 16 19 26

Lodging Hotel 16 16 15 15 14 16 15 12 13 13 13 12 14 14 14 17

Lodging Motel or inn 18 17 17 15 14 16 15 12 12 12 12 11 13 12 12 15

Lodging Nursing home/ 

assisted living 26 27 26 24 21 26 23 21 20 20 21 19 24 23 25 34

Lodging Other lodging 17 16 16 14 13 15 14 11 12 11 11 11 12 12 12 14

Mercantile Enclosed mall 18 18 18 17 13 17 15 15 14 15 17 15 20 19 22 32

Mercantile Strip shopping 

mall 19 19 18 18 13 18 16 16 15 15 18 16 21 20 23 33

Office Administrative/ 

profess. office 12 13 13 12 10 12 10 10 10 10 11

9 12 11 13 18

Office Bank/other 

financial 18 18 18 17 14 18 15 15 14 14 15 13 17 16 18 25

Office Government 

office 16 16 16 15 12 16 13 13 12 12 13 12 15 14 16 22

Office Medical office 

(non-diagnostic) 11 11 11 10

8 11998898 109 11 15

Office Mixed-use office 14 15 15 14 11 14 12 12 11 11 12 11 14 13 15 21

Office Other office 12 12 12 129 12 10 1099 109 12 11 12 17

Outpatient 

Health Care

Clinic/other 

outpatient health 16 15 16 14 13 15 13 11 11 10 10 10 11 11 10 12

Outpatient 

Health Care

Medical office 

(diagnostic) 11 10 10

99 108777777778

Public 

Assembly

Entertainment/ 

culture 

7777676656657679

Public Library 19 19 19 18 15 19 17 15 15 15 16 14 18 17 18 24
151

Assembly

Public 

Assembly

Other public 

assembly 

999879877776888 11

Public 

Assembly Recreation 8

88868766676878 11

Public 

Assembly Social/meeting 9 9

8878777776878 11

Public Order 

& Safety

Fire station/ 

police station 21 21 20 19 16 20 18 16 16 16 17 15 19 18 19 26

Public Order 

& Safety

Other public 

order and safety 19 19 18 17 15 18 16 15 14 14 15 14 17 16 18 24

Religious 

Worship

Religious 

worship 

7777676666657679

Retail 

(except 

malls)

Other retail 16 16 16 15 11 15 13 13 12 13 15 13 18 16 19 27

Retail 

(except 

malls)

Retail store 999969887787 109 11 16

Retail 

(except 

malls)

Vehicle 

dealership 

showroom 

16 16 16 15 11 15 13 13 13 13 15 13 18 16 19 27

Service Other service 19 19 19 18 14 18 16 15 14 14 15 15 17 16 18 23

Service

Post 

office/postal 

center 

13 13 13 12 10 13 12 10 10 10 11 10 12 12 13 17

Service Repair shop 999879777777878 11

Service Vehicle service/ 

repair shop 10 10 10 10

8 1098888899 10 13

Service Vehicle storage/ 

maintenance 

4544344433434446

Warehouse Distribution/ 

shipping center 

455636465587 119 13 24
152

Warehouse Non-refrigerated 

warehouse 2 2 3 3 1 3 2 3 3 3 4 3 5 4 6 12

Warehouse Refrigerated 

warehouse 22 22 23 20 18 22 18 17 17 18 16 15 18 20 20 27

Residential

Multi-family 

high-rise 

residential

11 10 9 9 5 9 6 9 8 9 10 9 11 10 12 16
153

PART 435 – ENERGY EFFICIENCY STANDARDS FOR THE DESIGN AND 

CONSTRUCTION OF NEW FEDERAL LOW-RISE RESIDENTIAL BUILDINGS

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.

8. In § 435.1, paragraph (b) is amended to read as follows:

§ 435.1 Purpose and scope.

* * * * *

(c) This part also establishes a maximum allowable fossil fuel-generated energy consumption 

standard for new Federal buildings that are low-rise residential buildings and major renovations 

to Federal buildings that are low-rise residential buildings, for which design for construction 

began on or after [INSERT DATE ONE YEAR AFTER DATE OF PUBLICATION IN THE 

FEDERAL REGISTER]. 

9. In § 435.2:

a. Add in alphabetical order, the definitions of “Construction cost,” “Combined heat and power 

(CHP) system,” “District energy system,” “Fiscal Year (FY),” “Major renovation,” “Power 

purchase agreement,” and “Renewable energy certificate” and
154

b. Revise the definition of “New Federal building” and “Proposed building.”

c. Deleting the definitions of “Life-cycle cost” and “Life-cycle cost-effective.”

The additions and revisions read as follows:

§ 435.2 Definitions.

* * * * *

Combined heat and power (CHP) system means an integrated system, located at or near a 

building or facility, that is used to generate both heat and electricity for use in the building or 

facility.

Construction cost means all costs associated with design and construction of a building. It 

includes the cost of design, permitting, construction (materials and labor), and building 

commissioning. It does not include legal or administrative fees, or the cost of acquiring the land.

* * * * *

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 
155

steam, and/or cooling via chilled water). This definition only includes thermal energy systems; 

central energy supply systems that only provide electricity are excluded from this definition.

* * * * *

Fiscal year (FY) begins on October 1 of the year prior to the specified calendar year and ends on 

September 30 of the specified calendar year

* * * * *

 

Major renovation means changes to a building that provide significant opportunities 

for compliance with applicable requirements in this part. For subpart B --reduction in fossil fuelrelated energy consumption, for example, replacement of the HVAC system, lighting system, 

building envelope, or other components of the building that have a major impact on energy usage

would constitute a major renovation. 

New Federal building means any new building (including a complete replacement of an existing 

building from the foundation up) to be constructed by, or for the use of, any Federal agency. 

Such term shall include buildings built for the purpose of being leased by a Federal agency, and 

privatized military housing.

* * * * *
156

Power purchase agreement means an agreement with an electricity producer for all or a specified 

portion of the electricity produced from a particular power source, in this case a renewable 

energy source, for a specified period of time. 

* * * * *

Proposed Building means the design for construction of a new Federal low-rise residential 

building, or major renovation to a Federal low-rise residential building, proposed for 

construction.

Renewable energy certificate means the technology and environmental (non-energy) attributes 

that represent proof that 1 megawatt-hour (MWh) of electricity was generated from a renewable 

energy resource, and can be sold separately from the underlying generic electricity with which it 

is associated.

10. Amend §435.3 by: 

a Redesignating paragraph (b)(2) as (b)(3); and 

b. Adding a new paragraph (b)(2) to read as follows:

§ 435.3 Materials incorporated by reference.

* * * * *

(b) * * * 
157

(2) ICC International Energy Conservation Code (IECC), 2009 Edition (“IECC 2009”), January 

2009, ISBN 978-1-58001-742-8, IBR approved for §§ 435.2, 435.4, 435.5, 435.201, Appendix A 

to Subpart B.

* * * * *

11. Revise § 435.4 to read as follows:

§ 435.4 Life-cycle cost-effective.

(a) Except as specified in subparts A, B or C of this part, Federal agencies shall determine lifecycle cost-effectiveness by using the procedures set out in subpart A of part 436. A Federal 

agency may choose to use any of four methods, including life-cycle cost, net savings, savings-toinvestment ratio, and adjusted internal rate of return using the discount rate published in the 

annual supplement to the Life Cycle Costing Manual for the Federal Energy Management 

Program (NIST 85–3273).

12. Subpart B is revised to read as follows: 

Subpart B – Reduction in Fossil Fuel-Generated Energy Consumption 

Sec.

435.200 – Fossil fuel-generated energy consumption requirement.
158

435.201 – Fossil fuel-generated energy consumption determination.

435.202 – Downward adjustment.

Appendix A to Subpart B of Part 435 – Maximum Allowable Fossil Fuel-Generated Energy 

Consumption

Subpart B –- Reduction in Fossil Fuel-Generated Energy Consumption

§ 435.200 Fossil fuel-generated energy consumption requirement.

(c) New Federal buildings. New Federal buildings that are low-rise residential buildings, for 

which design for construction began on or after [Insert date one year after date of 

publication in the Federal register], must be designed to meet the requirements of 

paragraph (c) of this section if the cost of the building is at least $2,500,000 (in 2007 dollars, 

adjusted for inflation).

(d) Major renovations. 

(1) Major renovations to Federal buildings that are low-rise residential buildings, for 

which design for construction began on or after [Insert date one year after date of 

publication in the Federal register], must be designed to meet the requirements of 

paragraph (c) of this section if the cost of the major renovation is at least $2,500,000 (in 

2007 dollars, adjusted for inflation).
159

(2) This subpart applies only to the portions of the proposed building or proposed 

building systems that are being renovated and to the extent that the scope of the 

renovation permits compliance with the applicable requirements in this subpart. 

Unaltered portions of the proposed building or proposed building systems are not 

required to comply with this subpart.

(3) For leased buildings, this subpart applies to major renovations only if the proposed 

building was originally built for the use of any Federal agency, including being leased 

by a Federal agency.

(c) Federal buildings that are of the type included in Appendix A of this subpart.

(1) Design for construction began during fiscal year 2014 through fiscal year 2029. 

The fossil fuel-generated energy consumption of the proposed building, based on the building 

design and calculated according to §435.201(a), must not exceed the value identified in Tables 1-

4 of Appendix A of this subpart for the associated building type, climate zone, and fiscal year in 

which design for construction began.

(2) Design for construction began during or after fiscal year 2030. The fossil fuel-generated 

energy consumption of the proposed building, based on building design and calculated according 

to §435.201(a), must be zero. 
160

§ 435.201 Fossil fuel-generated energy consumption determination.

(a) The fossil fuel-generated energy consumption of a proposed design is calculated as follows:

Equation 1: Fossil Fuel-Generated Energy Consumption = ((3.412 kBtu/kwh X Fossil 

Fuel-Generation Factor X (Proposed Building Site Electricity Consumption – Renewable 

Energy and CHP Electricity Deduction) / Electricity Source Energy Factor) + (Direct 

Fossil Fuel Consumption of Proposed Building X Other Fuels Source Energy 

Multiplier)) / Floor Area

Whereas:

(1) Fossil Fuel-Generation Factor is equal to (AEPcoal+AEPpl+AEPpc+AEPng+AEPog)/Total AEP

Where

 AEP = annual electrical production

 pl= petroleum liquids

 pc=petroleum coke

 ng= natural gas

 og = other gas

All values are taken from Table 3.2.A of the EIA Electric Power Annual Report, which is 

updated on a periodic basis. DOE will on an annual basis calculate the Fossil Fuel Generation 

Factor and publish the result at the following web address: http://energy.gov/eere/femp/federalenergy-management-program

(2) Proposed Building Site Electricity Consumption equals the estimated site electricity 
161

consumption of the proposed building calculated in accordance with the Simulated Performance 

Alternative in Section 405 of the IECC 2009 (incorporated by reference; see § 435.3), measured 

in kilowatt hours per year (kWh/yr).

(3) Renewable Energy and CHP Electricity Deduction equals the total contribution specified in 

paragraph (b) of this section, measured in kilowatt hours per year (kWh/yr). 

(4) Electricity Source Energy Factor For electricity purchased from the grid, the Electricity 

Source Factor is equal to 0.316. For on-site electrical generation, it is the estimated efficiency of 

the generating equipment and any estimated distribution losses that may occur. 

(5) Direct Fossil Fuel Consumption of Proposed Building equals the total site fossil fuel 

consumption of the proposed building calculated in accordance with the Simulated Performance 

Alternative in Section 405 of the IECC 2009 (incorporated by reference; see § 435.3), excluding 

fossil fuel consumption for electricity generation, and measured in thousands of British thermal 

units per year per (kBtu/yr). This includes any fossil fuel consumption attributable to nonelectric power (e.g., heat or steam) used in a proposed building that is supplied by a district 

energy system or CHP system.

 

(6) Other Fuels Source Energy Multiplier For purposes of Equation 1, the multipliers are as 

follows:

Natural gas 1.046

Fuel oil 1.00
162

Propane 1.00

District Steam (non-CHP) 1.35

District steam (CHP) 2.30

District hot water 1.28

Chilled water 1.05

Coal 1.00

(7) Floor Area is the floor area of the structure that is enclosed by exterior walls, including 

finished or unfinished basements, finished or heated space in attics, and garages if they have an 

uninsulated wall in common with the house. Not included are crawl spaces, and sheds and other 

buildings that are not attached to the house. 

(b) Renewable energy and CHP electricity deductions.

(1) Renewable electricity. The following renewable electricity generation qualifies as a 

deduction under paragraph (a) of this section to the extent that the renewable electricity 

generation represents new electric generating capacity or a new renewable energy 

obligation on the part of the agency, and not a reassignment of existing capacity or 

obligations:

(i) On-site renewable electricity generation is the amount of electricity 

measured in kilowatt hours per year (kWh/yr) to be consumed by the 

building that is contributed by renewable electricity generated at the 
163

Federal site or facility on which the building will be located. The 

environmental attributes of the on-site renewable electricity generation 

must not be transferred. 

(ii) Off-site renewable electricity generation is the amount of renewable 

electricity measured in kilowatt hours per year (kWh/yr) generated at a 

site or facility, either Federal or non-federal, other than the Federal site 

or facility on which the building will be located, and may include 

renewable energy produced under a Power Purchase Agreement and

represented by Renewable Energy Certificates.

(2) Limitation on the use of renewable electricity generation for new Federal buildings and major 

renovations. The environmental attributes of the renewable energy generation must not be 

transferred. The agency must ensure that the environmental attributes of onsite renewable energy 

generation are dedicated to meeting the fossil fuel-generated energy consumption reduction 

requirements of the proposed building. 

(3) CHP deduction. Electricity associated with non-electric power provided to a proposed 

building by a district energy system that is a CHP system or an on-site CHP system qualifies as a 

deduction under paragraph (a) and is equal to the total heat delivered to the proposed building 

from the direct energy system divided by total heat produced by the CHP system, times the total 

electricity produced by the CHP system.
164

§435.202 Petition for downward adjustment.

(a) New Federal buildings. (1) Upon petition by a Federal agency, excluding the General 

Services Administration (GSA) but including GSA-tenant agencies with significant control over 

building design, the Director of the Federal Energy Management Program may adjust the 

applicable maximum allowable fossil fuel-generated energy consumption standard with respect 

to a specific building, upon written certification from the head of the agency designing the 

building, or the head of a GSA-tenant agency, that the requested adjustment is the largest 

feasible reduction in fossil fuel-generated consumption that can practicably be achieved in light 

of the specified functional needs for that building, as demonstrated by:

(i) A statement sealed by the design engineer that the proposed building was 

designed in accordance with the applicable energy efficiency requirement 

in subpart A of this Part, and that each energy consuming product included 

in the proposed building that is of a product category covered by the 

ENERGY STAR program or the Federal Energy Management Program 

for designated products is an ENERGY STAR product or a product 

meeting the FEMP designation criteria, as applicable;

(ii) A description of the technologies and practices that were evaluated and 

rejected, including a justification of why they were not included in the 

design for construction; and

(iii) Any other information the agency determines would help explain its 
165

request;

(2) The head of the agency designing the building, or the head of a GSA-tenant agency, 

must also include the following information in the petition: 

(i) A general description of the building, including but not limited to location, use type, 

floor area, stories, and functional needs;

(ii) The maximum allowable fossil fuel-generated energy consumption for the building 

from Tables 1-4 of Appendix A of this subpart;

(iii) The estimated fossil fuel-generated energy consumption of the proposed building;

(iv) A description of the proposed building’s energy-related features, including but not 

limited to:

(A) Building envelope, including, but not limited to, construction materials, 

insulation levels, and the type, area, heat loss and solar heat gain and visible light 

transmission coefficients of windows and other glazing;

(B) HVAC system type and configuration;

(C) HVAC equipment sizes and efficiencies;
166

(D) Ventilation systems (including outdoor air volume, controls technique, heat 

recovery systems, and economizers, if applicable);

(E) Service water heating system configuration and equipment (including solar 

hot water, wastewater heat recovery, and controls for circulating hot water 

systems, if applicable);

(F) Lighting technology, interior lighting power, and lighting control techniques;

(G) Estimated process and plug loads; and

(H) Any other energy-related equipment; and

(3) The Director of the Federal Energy Management Program may concur in whole or in part 

with a petition. Upon concurring in part, the Director of the Federal Energy Management 

Program will establish an applicable maximum allowable fossil fuel-generated energy 

consumption standard with respect to a specific building other than the value put forth in the 

petition. 

(4) Petitions for downward adjustment should be submitted to ff-petition@ee.doe.gov, or to:

U.S. Department of Energy

Federal Energy Management Program

Director

Fossil Fuel Reductions in New Federal Buildings

EE-2L

1000 Independence Ave., SW
167

Washington, D.C. 20585-0121

(5) The Director will notify the requesting agency in writing whether the petition for downward 

adjustment to the numeric reduction requirement is approved, in whole or in part, or rejected, 

within 90 days of submittal. If the Director rejects -the petition or establishes a value other than 

that presented in the petition, the Director will forward its reasons for rejection to the petitioning 

agency.

(b) Major renovations to Federal buildings. 

(1) Major renovation of the whole building. Upon petition by a Federal agency, excluding the 

General Services Administration (GSA) but including GSA-tenant agencies with significant 

control over renovation design, the Director of the Federal Energy Management Program will 

adjust the applicable maximum allowable fossil fuel-generated energy consumption standard 

with respect to a specific major renovation of a whole building, upon written certification from 

the head of the agency designing the building, or the head of a GSA-tenant agency, that the 

requested adjustment is the largest feasible reduction in fossil fuel-generated consumption that 

can practicably be achieved in light of the specified functional needs for that building, as 

demonstrated by a statement stamped by the design engineer that the proposed building was 

designed consistent with the energy efficiency requirement in subpart A of this Part that 

corresponds to the date of the proposed building. 

(2) Major renovation of a building system or component. Upon petition by a Federal agency, 

excluding the General Services Administration (GSA) but including GSA-tenant agencies with 
168

significant control over renovation design, the Director of the Federal Energy Management 

Program will adjust the applicable maximum allowable fossil fuel-generated energy consumption 

standard with respect to a specific major renovation limited to a building system or component, 

upon written certification from the head of the agency designing the building, or the head of a 

GSA-tenant agency, that the requested adjustment is the largest feasible reduction in fossil fuelgenerated consumption that can practicably be achieved in light of the specified functional needs 

for that building, as demonstrated by:

(i) A statement stamped by the design engineer that the proposed building incorporates 

commercially available systems and/ or components that provide a level of energy 

efficiency that is life-cycle cost effective. 

(3) Petitions for downward adjustment should be submitted to ff-petition@ee.doe.gov, or to:

U.S. Department of Energy

Federal Energy Management Program

Director

Fossil Fuel Reductions in New Federal Buildings

EE-2L

1000 Independence Ave., SW

Washington, D.C. 20585-0121

(4) The downward adjustment for a major renovation will be deemed approved upon submittal of 

the certification required in paragraph (1) or (2), as applicable. 
169
170

Appendix A to Subpart B of Part 435 – Maximum allowable fossil fuel-generated energy consumption

For purposes of the tables in this Appendix, the climate zones for each county in the United States are those listed in Figure 301.1 of

IECC 2009 (incorporated by reference; see §435.3).

For purpose of Appendix A, the following definitions apply:

Manufactured Home means a dwelling 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. 

Multi-Family in 2-4 Unit Buildings means a category of structures 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. 

Multi-Family in 5 or More Unit Buildings means a category of structures that contain living quarters for five or more households or 

families and in which one household lives above or beside another. 

Single-Family Attached means a building with two or more connected dwelling units, generally with a shared wall, each providing 

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 dwelling unit and they have independent outside entrances. A single-family house is contained within walls extending 

from the basement (or the ground floor, if there is no basement) to the roof. Townhouses, row houses, and duplexes are considered 

single-family attached dwelling units, as long as there is no dwelling unit above or below another. This includes modular homes but 

does not include manufactured homes.

Single-Family Detached means a separate, unconnected dwelling unit, not sharing a wall with any other building or dwelling unit, 

which 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 – FY2013-FY2014 Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Category, Building 
171

Type and Climate Zone, 

Residential Buildings (source kBtu/yr-sqft)

Building 

Category

Climate Zone: 1 2A 2B 3A 3B 

Coast

3B 

Other

3C 4A 4B 4C 5A 5B 6A 6B 7 8

Building 

Activity/ Type Fossil Fuel-Generated Energy Use Intensity (source kBtu/yr-sqft)

Residential

Mobile/ 

manufactured 

home 

56 54 46 48 28 47 33 48 43 49 53 45 61 54 64 84

Residential Single-family 

detached 42 40 34 36 21 35 24 36 32 36 39 33 45 40 47 62

Residential Single-family 

attached 48 46 39 41 24 40 28 41 37 41 45 38 52 46 55 72

Residential

Multi-family (in

2-4 unit 

building) 

70 68 57 60 35 59 41 60 54 61 66 56 76 68 80 105

Residential Multi-family (in 

5+ unit building) 48 46 39 41 24 40 28 41 37 41 45 38 52 46 55 72
172

Table 2 – FY2014-FY2019 Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Category, Building 

Type and Climate Zone, 

Residential Buildings (source kBtu/yr-sqft)

Building 

Category

Climate Zone: 1 2A 2B 3A 3B 

Coast

3B 

Other

3C 4A 4B 4C 5A 5B 6A 6B 7 8

Building 

Activity/ Type Fossil Fuel-Generated Energy Use Intensity (source kBtu/yr-sqft)

Residential

Mobile/ 

manufactured 

home 

44 42 35 37 22 36 25 37 34 38 41 35 47 42 50 65

Residential Single-family 

detached 32 31 26 28 16 27 19 28 25 28 30 26 35 31 37 49

Residential Single-family 

attached 37 36 30 32 18 31 22 32 29 32 35 30 40 36 42 56

Residential

Multi-family (in

2-4 unit 

building) 

55 53 44 47 27 46 32 47 42 47 51 44 59 53 62 82

Residential Multi-family (in 

5+ unit building) 37 36 30 32 18 31 22 32 29 32 35 30 40 36 42 56
173

Table 3 – FY2020-FY2024 Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Category, Building 

Type and Climate Zone, 

Residential Buildings (source kBtu/yr-sqft)

Building 

Category

Climate Zone: 1 2A 2B 3A 3B 

Coast

3B 

Other

3C 4A 4B 4C 5A 5B 6A 6B 7 8

Building 

Activity/ Type Fossil Fuel-Generated Energy Use Intensity (source kBtu/yr-sqft)

Residential

Mobile/ 

manufactured 

home 

25 24 20 21 12 21 15 21 19 22 23 20 27 24 28 37

Residential Single-family 

detached 18 18 15 16 9 15 11 16 14 16 17 15 20 18 21 28

Residential Single-family 

attached 21 21 17 18 11 18 12 18 16 18 20 17 23 21 24 32

Residential

Multi-family (in

2-4 unit 

building) 

31 30 25 27 15 26 18 27 24 27 29 25 34 30 36 47

Residential Multi-family (in 

5+ unit building) 21 20 17 18 11 18 12 18 16 18 20 17 23 21 24 32
174

Table 4 – FY2024-FY2029 Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Category, Building 

Type and Climate Zone, 

Residential Buildings (source kBtu/yr-sqft)

Building 

Category

Climate Zone: 1 2A 2B 3A 3B 

Coast

3B 

Other

3C 4A 4B 4C 5A 5B 6A 6B 7 8

Building 

Activity/ Type Fossil Fuel-Generated Energy Use Intensity (source kBtu/yr-sqft)

Residential

Mobile/ 

manufactured 

home 

12 12 10 11 6 10 7 11 10 11 12 10 13 12 14 19

Residential Single-family 

detached 9 9 8 8 5 8 5 8 7 8 9 7 10 9 11 14

Residential Single-family 

attached 11 10 9 9 5 9 6 9 8 9 10 9 12 10 12 16

Residential

Multi-family (in

2-4 unit 

building) 

16 15 13 13 8 13 9 13 12 14 15 13 17 15 18 23

Residential Multi-family (in 

5+ unit building) 11 10 9 9 5 9 6 9 8 9 10 9 11 10 12 16