[Federal Register Volume 87, Number 67 (Thursday, April 7, 2022)]
[Rules and Regulations]
[Pages 20267-20295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06949]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 87, No. 67 / Thursday, April 7, 2022 / Rules 
and Regulations

[[Page 20267]]



DEPARTMENT OF ENERGY

10 CFR Part 433

[EERE-2022-BT-STD-0012]
RIN 1904-AE44


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

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

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (DOE) is publishing this final 
rule to implement provisions in the Energy Conservation and Production 
Act (ECPA) that require DOE to update the baseline Federal energy 
efficiency performance standards for the construction of new Federal 
commercial and multi-family high-rise residential buildings. This rule 
updates the baseline Federal commercial standard to the American 
Society of Heating, Refrigerating, and Air-Conditioning Engineers 
(ASHRAE) Standard 90.1-2019.

DATES: This rule is effective June 6, 2022.
    The incorporation by reference of certain material listed in this 
rule is approved by the Director of the Federal Register as of June 6, 
2022. The incorporation by reference of certain other material listed 
in this rule was approved by the Director of the Federal Register 
through January 5, 2016.
    All Federal agencies shall design new Federal buildings that are 
commercial and multi-family high-rise residential buildings, for which 
design for construction began on or after April 7, 2023, using ASHRAE 
Standard 90.1-2019 as the baseline standard for 10 CFR part 433.

ADDRESSES: The docket, which includes this Federal Register notice and 
other supporting documents/materials, is available for review at 
www.regulations.gov. All documents in the docket are listed in the 
www.regulations.gov index. However, some documents listed in the index, 
such as those containing information that is exempt from public 
disclosure, may not be publicly available.
    This rulemaking can be identified by docket number EERE-2022-BT-
STD-0012 and/or RIN number 1904-AE44. A link to the docket web page can 
be found at www.energy.gov/eere/femp/notices-and-rules-related-federal-energy-management. The docket web page contains instructions on how to 
access all documents, including public comments, in the docket.

FOR FURTHER INFORMATION CONTACT: 
    For technical issues: Nicolas Baker, U.S. Department of Energy, 
Office of Energy Efficiency and Renewable Energy, Federal Energy 
Management Program, Mailstop EE-5F, 1000 Independence Avenue SW, 
Washington, DC 20585, (202) 586-8215, Email: <a href="/cdn-cgi/l/email-protection#b8d6d1dbd7d4d9cb96dad9d3ddcaf8dddd96dcd7dd96dfd7ce"><span class="__cf_email__" data-cfemail="b9d7d0dad6d5d8ca97dbd8d2dccbf9dcdc97ddd6dc97ded6cf">[email protected]</span></a>.
    For legal issues: Matthew Ring, U.S. Department of Energy, Office 
of the General Counsel, Forrestal Building, GC-33, 1000 Independence 
Avenue SW, Washington, DC 20585, (202) 586-2555, Email: 
<a href="/cdn-cgi/l/email-protection#8fe2eefbfbe7eaf8a1fde6e1e8cfe7fea1ebe0eaa1e8e0f9"><span class="__cf_email__" data-cfemail="87eae6f3f3efe2f0a9f5eee9e0c7eff6a9e3e8e2a9e0e8f1">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: DOE maintains a previously approved 
incorporation by reference and incorporates by reference the following 
standard into 10 CFR part 433:

ANSI/ASHRAE/IES Standard 90.1-2013, Energy Standard for Buildings 
Except Low-Rise Residential Buildings, I-P Edition, Copyright 2013.
ANSI/ASHRAE/IES Standard 90.1-2019, Energy Standard for Buildings 
Except Low-Rise Residential Buildings, I-P Edition, Copyright 2019.
Copies of ANSI/ASHRAE/IES Standards 90.1-2013 and 2019 can be obtained 
from ASHRAE, Inc., 1791 Tullie Circle, NE, Atlanta, GA 30329, or 
www.ashrae.org.

    For a further discussion of these standards, see section VII.N of 
this document.

Table of Contents

I. Summary of the Final Rule
II. Introduction
    A. Energy Conservation and Production Act Requirements
    B. ASHRAE Standard 90.1
    C. Regulatory Requirements of 10 CFR Part 433
    D. Synopsis of Changes to ASHRAE Standard 90.1 Between ASHRAE 
Standard 90.1-2013 and ASHRAE Standard 90.1-2019
    1. Changes in ASHRAE From Standard 90.1-2013 to Standard 90.1-
2016
    a. Fixed Baseline
    b. Revisions and Additions to the Formula for Demonstrating 
Compliance With the Appendix G Performance Rating Method
    2. Changes in ASHRAE From Standard 90.1-2016 to Standard 90.1-
2019
III. Discussion of the Final Rule
    A. DOE's Analysis of the Cost-Effectiveness of ASHRAE Standard 
90.1 as Applied to New Federal Buildings
    B. Federal Agency Implementation of Changes to the Appendix G 
Performance Rating Method in ASHRAE Standard 90.1-2016 and ASHRAE 
Standard 90.1-2019
    C. Definition of ``New Federal Building''
    D. Programmatic Clarifications for Implementing ASHRAE Standard 
90.1
    1. Whole Building Simulation and Model for Appendix G 
Performance Rating Method
    2. DOE and Agency Roles When Applying ASHRAE Standard 90.1
IV. Methodology, Analytical Results, and Conclusion
    A. Cost-Effectiveness
    B. Monetization of Emissions Reduction Benefits
    1. Monetization of Greenhouse Gas Emissions
    a. Social Cost of Carbon
    b. Social Cost of Methane and Nitrous Oxide
    2. Monetization of Other Air Pollutants
    C. Conclusion
V. Compliance Date
VI. Reference Resources
    A. Resources for Commercial and Multi-Family High-Rise 
Residential Buildings
VII. Regulatory Analysis
    A. Review Under Executive Order 12866, ``Regulatory Planning and 
Review''
    B. Review Under the Administrative Procedure Act
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act of 1995
    E. Review Under the National Environmental Policy Act of 1969
    F. Review Under Executive Order 13132, ``Federalism''
    G. Review Under Executive Order 12988, ``Civil Justice Reform''
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under the Treasury and General Government 
Appropriations Act of 1999
    J. Review Under Executive Order 12630, ``Governmental Actions 
and Interference

[[Page 20268]]

With Constitutionally Protected Property Rights''
    K. Review Under the Treasury and General Government 
Appropriations Act, 2001
    L. Review Under Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, 
or Use''
    M. Review Under Section 32 of the Federal Energy Administration 
Act of 1974
    N. Description of Materials Incorporated by Reference
VIII. Congressional Notification
IX. Approval of the Office of the Secretary

I. Summary of the Final Rule

    Section 305 of ECPA, as amended, requires DOE to determine whether 
the energy efficiency standards for new Federal buildings \1\ should be 
updated to reflect revisions to ASHRAE Standard 90.1 based on the cost-
effectiveness of the revisions. (42 U.S.C. 6834(a)(3)(B)) Accordingly, 
DOE conducted a cost-effectiveness analysis that found ASHRAE Standard 
90.1-2019 to be cost-effective for new Federal commercial and multi-
family high-rise residential buildings. DOE's assumptions and 
methodology for the cost-effectiveness of this rule are based on DOE's 
State building energy codes program's cost-effectiveness analysis of 
ASHRAE Standard 90.1-2016 and ASHRAE Standard 90.1-2019.\2\ These 
assumptions and methodology also provide the basis for the 
environmental assessment (EA) for this rulemaking. Therefore, in this 
final rule, DOE updates the energy efficiency standards for new Federal 
buildings to ASHRAE Standard 90.1-2019 for buildings for which design 
for construction begins on or after one year after this rule is 
published in the Federal Register. (42 U.S.C. 6834(a)(3)(A))
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    \1\ For the purposes of discussion in this document, all 
references to ``Federal buildings'' subject to 10 CFR part 433 will 
include commercial and multi-family high-rise residential unless 
otherwise noted.
    \2\ See DOE's State building energy codes program analyses of 
the cost savings of the 2016 and 2019 ASHRAE 90.1 Standards at 
www.energycodes.gov/sites/default/files/2020-07/90.1-2016_National_Cost-Effectiveness.pdf and www.energycodes.gov/sites/default/files/2021-07/90.1-2019_National_Cost-Effectiveness.pdf, 
respectively.
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    To ensure consistency with ASHRAE Standard 90.1-2019, this final 
rule also limits the types of process and receptacle loads that may be 
excluded from the calculation of the 30 percent improvement beyond 
ASHRAE Standard 90.1 by revising 10 CFR 433.101(b) to require Federal 
agencies to include unregulated energy use (i.e., process loads and 
receptacle loads not within the scope of ASHRAE Standard 90.1) when 
calculating the 30 percent improvement beyond ASHRAE Standard 90.1, 
except for energy-intensive process loads that are: (i) Driven by 
mission and operational requirements, not necessarily buildings, and 
(ii) not influenced by conventional building energy conservation 
measures.
    This final rule also amends the definition for ``new Federal 
buildings'' in 10 CFR 433.2 to include buildings leased by Federal 
agencies and privatized military housing in accordance with amendments 
to the underlying statutory definition of this term made by the Energy 
Independence and Security Act (EISA) 2007.\3\ This final rule also 
makes technical amendments to the definitions in 10 CFR 433.2 for 
consistency with the materials incorporated by reference in 10 CFR 
433.3.
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    \3\ See section 433(b) of EISA 2007, Public Law 110-140, 121 
Stat. 1614 (Dec. 19, 2007).
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    Additionally, in the discussion of final rule, DOE clarifies and 
reiterates several programmatic principles related to agencies' 
implementation of ASHRAE Standard 90.1. These clarifications do not 
represent changes to the regulations in 10 CFR part 433. However, DOE 
frequently receives repeat questions from Federal agencies expressing 
confusion over particular aspects of implementing ASHRAE Standard 90.1. 
Accordingly, DOE wishes to reduce agencies' confusion by clarifying 
several important principles of implementing ASHRAE Standard 90.1 in 
the discussion of final rule.

II. Introduction

A. Energy Conservation and Production Act Requirements

    ECPA, as amended, requires DOE to establish building energy 
efficiency standards for all new Federal buildings. (42 U.S.C. 
6834(a)(1)) The standards established under section 305(a)(1) of ECPA 
must contain energy efficiency measures that are technologically 
feasible, economically justified, and meet the energy efficiency levels 
in the applicable voluntary consensus energy codes specified in section 
305. (42 U.S.C. 6834(a)(1)-(3)) Section 306(a) of ECPA further provides 
that each Federal agency and the Architect of the Capitol must adopt 
procedures to ensure that new Federal buildings will meet or exceed the 
Federal building energy efficiency standards established under section 
305. (42 U.S.C. 6835(a)) ECPA Section 306(b) bars the head of a Federal 
agency from expending Federal funds for the construction of a new 
Federal building unless the building meets or exceeds the applicable 
baseline Federal building energy standards established under section 
305. (42 U.S.C. 6835(b))
    Under section 305 of ECPA, the referenced voluntary consensus code 
for new Federal commercial buildings (including multi-family high rise 
residential buildings) is ASHRAE Standard 90.1. (42 U.S.C. 
6834(a)(2)(A)) DOE codified this referenced code as the baseline 
Federal building standard in its existing energy efficiency standards 
found in 10 CFR part 433. Also pursuant to section 305 of ECPA, DOE 
must establish, by rule, Federal building energy efficiency performance 
standards for new Federal buildings that require such buildings be 
designed to achieve energy consumption levels that are at least 30 
percent below the levels established in the referenced code (baseline 
Federal building standard), if life-cycle cost (LCC) effective. (42 
U.S.C. 6834(a)(3)(A)(i)(I)) These requirements do not extend to 
renovations or modifications to existing buildings.
    Additionally, under section 305 of ECPA, not later than one year 
after the date of approval of each subsequent revision of the ASHRAE 
Standard or the International Energy Conservation Code (IECC), DOE must 
determine whether to amend the baseline Federal building standards with 
the revised voluntary standard based on the cost-effectiveness of the 
revised voluntary standard. (42 U.S.C. 6834(a)(3)(B)) It is this 
requirement that this rulemaking addresses. ASHRAE has updated Standard 
90.1 from the version currently referenced in DOE's regulations at 10 
CFR part 433. In this rule, DOE revises the latest baseline Federal 
building standard for 10 CFR part 433 from ASHRAE Standard 90.1-2013 to 
ASHRAE Standard 90.1-2019. DOE notes that although ASHRAE published an 
update to ASHRAE Standard 90.1 in 2016, this rule updates 10 CFR part 
433 to ASHRAE Standard 90.1-2019 directly, without requiring agencies 
to comply with ASHRAE Standard 90.1-2016. DOE notes however that 
because development of ASHRAE Standard 90.1 is incremental from version 
to version, ASHRAE Standard 90.1-2019 does include all content in 
ASHRAE Standard 90.1-2016 that was not specifically removed or modified 
during the development of ASHRAE Standard 90.1-2019.

B. ASHRAE Standard 90.1

    Standard 90.1 is recognized by the U.S. Congress as the national 
model energy code for commercial buildings under the ECPA. Standard 
90.1 is developed under ANSI-approved consensus procedures and is under 
continuous maintenance by a Standing Standard Project Committee 
(commonly referenced as SSPC 90.1). Updates to

[[Page 20269]]

Standard 90.1 are published every three years in order for the Standard 
to be included in model building energy codes.
    Standard 90.1 includes several paths for compliance in order to 
provide flexibility to users of the Standard. The prescriptive path, 
which is widely considered the most traditional, establishes criteria 
for energy-related characteristics of individual building components 
such as minimum insulation levels, maximum lighting power, and controls 
for lighting and heating, ventilation, air conditioning, and 
refrigeration (HVAC&R) systems. Some of those requirements are 
considered ``mandatory,'' meaning that they must be met even when one 
of the other optional paths are utilized (e.g., performance path).
    In addition to the prescriptive path, Standard 90.1 includes two 
optional whole building performance paths. The first, known as the 
Energy Cost Budget (ECB) method, provides flexibility in allowing a 
designer to ``trade-off'' compliance among various requirements of 
Standard 90.1. This effectively allows a designer to not meet a given 
prescriptive requirement if the impact on energy cost is offset by 
exceeding other prescriptive requirements, as demonstrated through 
established energy modeling protocols. A building is deemed in 
compliance when the annual energy cost of the proposed design is no 
greater than the annual energy cost of the reference building design 
(baseline). Additionally, Standard 90.1 includes a second performance 
approach, the Performance Rating Method in Appendix G of the Standard. 
Traditionally, Appendix G has been used to rate the performance of 
buildings that exceed the requirements of Standard 90.1 for ``beyond 
code'' programs, including the Leadership in Energy and Environmental 
Design (LEED) Rating System, Green Globes, ASHRAE Standard 189.1, the 
International Green Construction Code (IgCC), the National Green 
Building Standard (NGBS), and other above-code programs.

C. Regulatory Requirements of 10 CFR Part 433

    The energy efficiency standards for the design and construction of 
new Federal commercial and multi-family high rise buildings required by 
section 305 of ECPA were established by DOE under 10 CFR part 433.\4\ 
As required by section 305 of ECPA, the standards in 10 CFR part 433 
require Federal buildings be designed to achieve energy consumption 
levels that are at least 30 percent below the levels set by the most 
recently adopted version of ASHRAE Standard 90.1. When it is not LCC 
effective to design new Federal buildings to exceed ASHRAE Standard 
90.1 performance levels by 30 percent, new Federal buildings must be 
designed to exceed the ASHRAE Standard 90.1 performance levels up to 
the percentage that is LCC effective. (10 CFR 433.100(c)). Furthermore, 
new Federal buildings must, at minimum, be designed to achieve the 
baseline standards established in ASHRAE Standard 90.1. (10 CFR 
433.100(a)(1)-(4), (c)).
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    \4\ For the purposes of discussion in this document, all 
references to ``Federal buildings'' subject to 10 CFR part 433 will 
include commercial and multi-family high-rise residential unless 
otherwise noted.
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    To determine if achieving energy consumption at least 30 percent 
lower than the levels of ASHRAE Standard 90.1 is LCC effective, Federal 
agencies must use the life-cycle-cost-effectiveness procedures set out 
in subpart A of 10 CFR part 436. (10 CFR 433.8) A Federal agency may 
choose to use one of four methods to determine LCC effectiveness: Lower 
LCC (10 CFR 436.19), positive net savings (10 CFR 436.20), savings-to-
investment ratio estimated to be greater than one (10 CFR 436.21), and 
an adjusted internal rate of return estimated to be greater than the 
discount rate as listed in OMB Circular Number A-94 ``Guidelines and 
Discount Rates for Benefit-Cost Analysis of Federal Programs'' (10 CFR 
436.22).
    To determine if a proposed building's energy consumption levels are 
at least 30 percent better than ASHRAE Standard 90.1, Federal agencies 
must use the Performance Rating Method found in Appendix G of ASHRAE 
Standard 90.1, subject to the DOE-specific formula found in 10 CFR 
433.101. See 10 CFR 433.101(a)(1)-(4). This requires the use of a whole 
building simulation tool and model for every new Federal building 
design. Similarly, if it is LCC effective for a proposed building's 
energy consumption levels to be at a percentage better than ASHRAE 
Standard 90.1, but less than 30 percent, Federal agencies must use the 
Performance Rating Method in Appendix G of ASHRAE Standard 90.1 to 
determine this percentage. However, Federal agencies may use the 
prescriptive or ECB methods in lieu of the Performance Rating Method 
when determining whether a proposed building's energy consumption 
levels comply with, or meet, the energy consumption levels of ASHRAE 
Standard 90.1.
    Currently, for the purposes of calculating the 30 percent savings 
requirements in 10 CFR 433.100, Federal agencies must include energy 
consumption levels associated with the building envelope and energy 
consuming systems normally specified as part of the building design by 
ASHRAE Standard 90.1, such as space heating, space cooling, 
ventilation, service water heating (SWH), and lighting, but must not 
include receptacle and process loads not within the scope of ASHRAE 
Standard 90.1, such as specialized medical or research equipment and 
equipment used in manufacturing processes.\5\ (10 CFR 433.101(b)) 
However, due to a change made by ASHRAE in Standard 90.1-2016, and 
retained in ASHRAE Standard 90.1-2019, unregulated process and 
receptacle loads must be accounted for in the whole building analysis 
to determine whether a Federal building design complies with, or meets, 
ASHRAE Standard 90.1-2019, and in the whole building simulation used to 
establish the baseline for applying the Appendix G Performance Rating 
Method. See section III.B for a more detailed discussion.
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    \5\ ``Process load'' means the load on a building resulting from 
energy consumed in support of a manufacturing, industrial, or 
commercial process. Process loads do not include energy consumed 
maintaining comfort and amenities for the occupants of the building 
(including space conditioning for human comfort). ``Receptacle 
load,'' also known as ``plug load,'' means the load on a building 
resulting from energy consumed by any equipment plugged into 
electrical outlets. (10 CFR 433.2)
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D. Synopsis of Changes to ASHRAE Standard 90.1 Between ASHRAE Standard 
90.1-2013 and ASHRAE Standard 90.1-2019

    Under its building energy codes program, DOE evaluated ASHRAE 
Standard 90.1-2016 and 90.1-2019 and determined that each version would 
improve energy efficiency in commercial buildings subject to the code 
relative to the previous version of the Standard. (See 83 FR 8463 and 
86 FR 40543) The summaries of the changes between each version of the 
Standard in the following sections are taken directly from DOE's 
determinations and supporting analyses for ASHRAE Standard 90.1-2016 
and ASHRAE Standard 90.1-2019.\6\ Section

[[Page 20270]]

II.D.1 describes the changes between ASHRAE Standard 90.1-2013 and 
ASHRAE Standard 90.1-2016, and section II.D.2 describes the changes 
between ASHRAE Standard 90.1-2016 and ASHRAE Standard 90.1-2019.
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    \6\ See determinations for the 2016 and 2019 ASHRAE 90.1 
Standards at www.regulations.gov/document/EERE-2017-BT-DET-0046-0008 
and www.regulations.gov/document/EERE-2020-BT-DET-0017-0010. See 
analysis of energy savings for the 2016 and 2019 ASHRAE 90.1 
Standards at www.energycodes.gov/sites/default/files/2021-07/02202018_Standard_90.1-2016_Determination_TSD.pdf and 
www.energycodes.gov/sites/default/files/2021-07/Standard_90.1-2019_Final_Determination_TSD.pdf.
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1. Changes in ASHRAE From Standard 90.1-2013 to Standard 90.1-2016
    ASHRAE publishes changes to Standard 90.1 as individual addenda to 
the preceding Standard, and then bundles them together to form the next 
published edition. In creating the 2016 edition, ASHRAE published 121 
addenda in total (listed in Appendix H of Standard 90.1-2016). DOE 
characterized the individual addenda into four categories:

    (1) Addenda that are clarifications, administrative, or update 
references to other documents;
    (2) Addenda that modify prescriptive and mandatory design and 
construction requirements for the envelope, HVAC, SWH, power, 
lighting, and other equipment sections of the standard;
    (3) Addenda that modify the performance path options for 
compliance (the energy cost budget, building envelope trade-off 
option, and performance rating method sections of Standard 90.1); or
    (4) Addenda that modify normative references.

    DOE analyzed these addenda in preliminary and final energy savings 
analyses in making its determination that changes in ASHRAE Standard 
90.1-2016 would lead to improved overall energy efficiency in buildings 
subject to the code compared to the 2013 edition of the Standard. (See 
83 FR 8463) A more detailed discussion of the individual addenda may be 
found in DOE's energy savings analysis technical support document (TSD) 
for the final determination, which may be accessed at 
www.energycodes.gov/determinations.
    For the purposes of this final rule, the most significant changes 
in ASHRAE Standard 90.1-2016 and beyond are to the Appendix G 
Performance Rating Method. The changes include: moving to a fixed 
baseline for calculating baseline building costs in the Performance 
Rating Method, adjustments to the associated equation for demonstrating 
compliance with the Performance Rating Method, and the application of a 
second equation that includes selecting building type and climate zone 
from a new table included in the revision. These changes are discussed 
in more detail in this section. However, as before, the calculations in 
the Appendix G Performance Rating Method are expressed in terms of 
energy costs.
    Another significant change is that the new Appendix G Performance 
Rating Method may now be used to demonstrate compliance with ASHRAE 
Standard 90.1. In previous versions of the Standard, the Appendix G 
Performance Rating Method could only be used to make ``beyond code'' 
determinations of a proposed building's energy efficiency improvement 
beyond ASHRAE Standard 90.1. To demonstrate compliance, users were 
required to use either the prescriptive path or the ECB model to 
determine compliance. With the changes to the Appendix G Performance 
Rating Method formula, users may now use the Performance Rating Method 
to determine compliance with ASHRAE Standard 90.1.
a. Fixed Baseline
    In Standard 90.1-2016, Appendix G was redesigned to have a 
consistent baseline across future versions for purposes of calculating 
baseline building energy costs, as opposed to having a baseline based 
on the prescriptive requirements of each new Standard. The new baseline 
for the Appendix G Performance Rating Method is now fixed at a level of 
performance approximately equal to the requirements in ASHRAE Standard 
90.1-2004. That baseline is then used in a new formula found in Section 
4.2.1.1 of ASHRAE Standard 90.1-2016 to set a compliance baseline for 
buildings designed under ASHRAE Standard 90.1-2016. The formula uses 
factors for different building types and climate zones, the building 
performance factors (BPFs) which are established in ASHRAE Standard 
90.1-2016, and will be updated in each subsequent version. The BPFs are 
based upon the percent improvement in energy cost savings that is 
required by each successive ASHRAE Standard 90.1 compared to the fixed 
baseline. The resulting target represents the increase in energy cost 
savings beyond the fixed baseline that is required in each successive 
ASHRAE Standard 90.1 for each building type and climate zone.
    The intent of these changes is to encourage the development of 
software tools that implement the Appendix G Performance Rating Method 
by providing a consistent baseline for Standard 90.1-2016 and future 
versions. This would allow software developers to more easily update 
programs to account for subsequent versions of the Standard by simply 
updating the BPFs used in the subsequent Standard. These efforts could 
have significant value to Federal agencies because the software tools 
envisioned would perform both the baseline and proposed building 
performance calculations and keep track of the relationships between 
the baseline building performance and proposed building performance, as 
noted in Table G3.1 of the Appendix G Performance Rating Method in 
ASHRAE Standard 90.1-2016. While these tools do not currently exist, it 
is expected that adhering to a consistent baseline will encourage 
software development.
b. Revisions and Additions to the Formula for Demonstrating Compliance 
With the Appendix G Performance Rating Method
    To accommodate the new baseline, and because ASHRAE Standard 90.1 
prescriptive requirements are now significantly more stringent than 
that baseline, ASHRAE revised the formula for demonstrating compliance 
with, and improvement beyond, the Appendix G Performance Rating Method 
in Standard 90.1-2016. The new formula requires the user to determine a 
metric first established in ASHRAE Standard 90.1-2016, the Performance 
Cost Index (PCI), which is calculated as follows:

Performance Cost Index = proposed building performance/baseline 
building performance

    To determine compliance with, or improvement beyond, ASHRAE 
Standard 90.1, the user must then compare the PCI with a PCI Target 
(PCI<INF>t</INF>). The PCI<INF>t</INF> is the energy cost value that a 
proposed building must meet in order to comply with ASHRAE Standard 
90.1 and, as noted above, it represents the increase in energy cost 
savings beyond the fixed baseline that is required in new versions of 
ASHRAE Standard 90.1 for that specific building type and climate zone. 
Accordingly, where PCI <= PCI<INF>t</INF> the proposed building design 
complies with ASHRAE Standard 90.1.
    To calculate PCI<INF>t</INF>, users must use the formula in Section 
4.2.1.1, first established in ASHRAE Standard 90.1-2016 and repeated in 
Standard 90.1-2019, which is quoted below:
    ``When using Appendix G, the Performance Cost Index (PCI) shall be 
less than or equal to the Performance Cost Index Target 
(PCI<INF>t</INF>) when calculated in accordance with the following:

    PCI<INF>t</INF> = [BBUEC + (BPF x BBREC)]/BBP

Where:

PCI = Performance Cost Index calculated in accordance with section 
G1.2.
BBUEC = Baseline Building Unregulated Energy Cost, the portion of 
the annual energy cost of a baseline building design that is due to 
unregulated energy use.
BBREC = Baseline Building Regulated Energy Cost, the portion of the 
annual energy cost of a baseline building design that is due to 
regulated energy use.

[[Page 20271]]

BPF = Building Performance Factor from Table 4.2.1.1. For building 
area types not listed in Table 4.2.1.1, use ``all others.'' Where a 
building has multiple building area types, the required BPF shall be 
equal to the area-weighted average of the building area types.
BBP = Baseline Building Performance.''

    This formula is used in conjunction with Table 4.2.1.1, which 
provides BPFs for 9 building area types: Multifamily, Healthcare/
Hospital, Hotel/Motel, Office, Restaurant, Retail, School, Warehouse, 
and All Others. BPFs are also provided for 17 climate zones: 0A and 1A, 
0B and 1B, 2A, 2B, 3A, 3B, 3C, 4A, 4B, 4C, 5A, 5B, 5C, 6A, 6B, 7, and 
8. Table 4.2.1.1 may be viewed in the online read-only version of 
ASHRAE Standard 90.1-2019.\7\
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    \7\ Table 4.2.1.1 of Standard 90.1-2019 is copyrighted by ASHRAE 
and is not included in this rule. However, a read-only copy of ANSI/
ASHRAE/IES Standard 90.1-2019 may be found on the ASHRAE website at 
www.ashrae.org/technical-resources/standards-and-guidelines by 
scrolling down to ``Preview ASHRAE Standards and Guidelines'' and 
selecting ``Standard 90.1-2019 (I-P).'' Table 4.2.1.1 is found in 
Section 4 on page 47.
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Definitions of Regulated and Unregulated Energy Use

    As noted previously, there are two key terms used in the formula in 
Section 4.2.1.1 of ASHRAE Standard 90.1: ``regulated energy use'' and 
``unregulated energy use.'' ASHRAE defines ``regulated energy use'' as 
``energy used by building systems and components with requirements 
prescribed in sections 5 through 10. This includes energy used by HVAC, 
lighting, SWH, motors, transformers, vertical transportation, 
refrigeration equipment, computer-room cooling equipment, and other 
building systems, components, and processes with requirements in 
sections 5 through 10.'' ASHRAE defines ``unregulated energy use'' as 
``energy used by building systems and components that is not regulated 
energy use (see regulated energy use).'' For purposes of clarity, DOE 
notes that the definition of ``regulated energy use'' should include 
SWH used for pools, both interior lighting and exterior lighting, and 
service water pressure booster systems.
    DOE also notes that in ASHRAE Standard 90.1-2016, ASHRAE considered 
plug loads such as computers, printers, copiers, and other electronic 
devices to be ``unregulated energy use'' for purposes of ASHRAE 
Standard 90.1. While automatic receptacle control \8\ for plug loads is 
required by Section 8.4.2 of ASHRAE Standard 90.1, the actual plug 
loads themselves are not regulated. DOE also notes that cooking 
equipment other than refrigeration equipment should be considered 
``unregulated energy use'' as well. DOE notes that both plug loads and 
cooking equipment are covered by Federal energy efficient product 
procurement requirements in 10 CFR part 436.
---------------------------------------------------------------------------

    \8\ ASHRAE Standard 90.1 uses the term ``automatic receptacle 
control'' without a specific definition, indicating that the common 
usage of this term should be used. However, ASHRAE Standard 90.1 
does use the term ``automatic control device'' in conjunction with 
the term ``automatic receptacle control.'' The definition of 
``automatic control device'' in ASHRAE Standard 90.1 is ``a device 
capable of automatically turning loads off and on without manual 
intervention.'' This definition implies that an ``automatic 
receptacle control'' is a device capable of automatically turning 
loads plugged into a receptacle off and on without manual 
intervention.
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2. Changes in ASHRAE From Standard 90.1-2016 to Standard 90.1-2019
    In creating Standard 90.1-2019, ASHRAE published 88 addenda in 
total, of which:
    <bullet> 29 are expected to decrease energy use (i.e., increased 
energy savings);
    <bullet> none are expected to increase energy use (i.e., decreased 
energy savings), and;
    <bullet> 59 are expected to have no direct impact on energy savings 
(such as administrative or clarifications or changes to alternative 
compliance paths).
    DOE analyzed these addenda in preliminary and final energy savings 
analyses in making its determination that changes in ASHRAE Standard 
90.1-2019 will lead to improved overall energy efficiency in buildings 
subject to the code compared to the 2016 edition of the Standard. (See 
86 FR 20674 (April 21, 2021) and 86 FR 40543 (July 28, 2021)) A more 
detailed discussion of the individual addenda may be found in DOE's 
energy savings analysis TSD for the final determination, which may be 
accessed at www.energycodes.gov/determinations.
    The 29 changes considered that are expected to decrease energy use 
are:

    (1) Modified exceptions to exhaust air energy recovery 
requirements.
    (2) Changes the term ``ventilation air'' to ``outdoor air'' in 
multiple locations. Adds an exception to allow systems intended to 
operate continuously not to install motorized outdoor air dampers. 
Changes return air dampers to require low leakage ratings.
    (3) Provides a definition of ``occupied-standby mode'' and adds 
new ventilation air requirements for zones served in occupied-
standby mode.
    (4) Clarifies that exhaust air energy recovery ventilators 
(ERVs) should be sized to meet both heating and cooling design 
conditions unless one mode is specifically excluded by existing 
exceptions.
    (5) Revises the exception to demand control ventilation (DCV) 
requirements to clarify that the exception only applies to systems 
with ERV required to meet section 6.5.6.1.
    (6) Revises the definition of ``networked guest room control 
system'' and aligns HVAC and lighting time-out periods for guest 
rooms.
    (7) Expands the exterior lighting power density (LPD) 
application table to cover additional exterior spaces that are not 
in the exterior LPD table.
    (8) Adds heat recovery for the space conditioning requirement 
targeted specifically at in-patient hospitals.
    (9) Restructures commissioning and functional testing 
requirements in all sections of Standard 90.1 to require 
verification or testing for smaller and simpler buildings and 
commissioning for larger and more complex buildings.
    (10) Adds indoor pool dehumidifier energy recovery requirement.
    (11) Implements Federal clean water pump requirements.
    (12) Replaces Fan Energy Grade metric with Fan Energy Index 
metric.
    (13) Revises supply air temperature reset controls.
    (14) Eliminates the requirement that zones with direct digital 
control (DDC) have air flow rates that are no more than 20 percent 
of the zone design peak flow rate.
    (15) Revises the prescriptive fenestration U-factor and solar 
heat gain coefficient (SHGC) requirements and makes them material 
neutral.
    (16) Provides separate requirements for non-transient dwelling 
unit exhaust air energy recovery.
    (17) Changes the interior LPD requirements for many space types.
    (18) Adds a new chiller table for heat pump and heat recovery 
chillers.
    (19) Revises the computer room air conditioner (CRAC) 
requirements to clarify these are for floor mounted units and adds a 
new table for ceiling mounted units.
    (20) Adds a definition of Standby Power Mode Consumption. 
Increases the furnace efficiency requirements.
    (21) Adds a new Table F-5 to specify DOE-covered residential 
water boiler efficiency requirements and notes that requirements in 
Table 6.8.1-6 apply only to products used outside the United States. 
Adds standby mode and improved efficiency as of January 15, 2021.
    (22) Adds dry cooler efficiency requirements and slightly 
increases efficiency requirements for evaporative condensers.
    (23) Combines the commercial refrigerator and freezer table with 
the refrigerated casework table into a single table. Increases 
efficiency requirements.
    (24) Revises LPDs using the Building Area Method.
    (25) Makes a similar change to the variable air volume (VAV) box 
minimums as Addendum au to 90.1-2016, but in exception 1 to section 
6.5.2.1 where the same 20 percent requirement still existed.
    (26) Cleans up the outdated language regarding walk-in cooler 
and walk-in freezer

[[Page 20272]]

requirements and makes the requirements consistent with current 
Federal regulations.
    (27) Adds new normative references and updates existing ones 
with new effective dates, including several addenda to ASHRAE 
Standard 62.1-2016.
    (28) Updates the lighting control requirements for parking 
garages in section 9.4.1.2.
    (29) Changes the daylight responsive requirements from 
continuous dimming or stepped control to continuous dimming required 
for all spaces and adds a definition of continuous dimming.

    The remaining 59 changes were considered administrative in nature 
or were determined to not be energy related. These changes are 
discussed in more detail in Appendix A of Preliminary Energy Savings 
Analysis: ANSI/ASHRAE/IES Standard 90.1-2019.\9\ One change that is 
considered administrative in DOE's determination but is significant to 
this rulemaking is that ASHRAE updated the BPFs in Table 4.2.1.1 that 
are used in the Performance Rating Method in Standard 90.1-2019. This 
change reflects the increased performance of buildings designed to 
Standard 90.1-2019. The changes made to the Performance Rating Method 
that are discussed previously in section II.D.1 were carried over from 
ASHRAE Standard 90.1-2016 and included in ASHRAE Standard 90.1-2019.
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    \9\ www.energycodes.gov/sites/default/files/2021-07/20210407_Standard_90.1-2019_Determination_TSD.pdf.
---------------------------------------------------------------------------

III. Discussion of the Final Rule

    DOE is issuing this action as a final rule. As indicated 
previously, DOE must determine whether the energy efficiency standards 
for new Federal buildings should be updated to reflect revisions to 
ASHRAE Standard 90.1 based on the cost-effectiveness of the revisions. 
(42 U.S.C. 6834(a)(3)(B)). In this final rule, DOE determines that the 
energy efficiency standards for new Federal buildings should be updated 
to reflect the 2019 revisions to ASHRAE Standard 90.1 based on the 
cost-effectiveness of the revisions. This final rule amends 10 CFR part 
433 to update the referenced baseline Federal energy efficiency 
performance standards and provides a formula for Federal agencies to 
use when implementing the Appendix G Performance Rating Method based on 
the changes in ASHRAE Standard 90.1-2016, detailed in section II.D.1, 
that were carried over into ASHRAE Standard 90.1-2019. These amendments 
are described in sections II.D.1. and II.D.2. of this document. 
Additionally, DOE clarifies and reiterates several programmatic 
principles for Federal agencies implementing ASHRAE Standard 90.1 based 
on frequently asked questions received by DOE.
    DOE also notes that there are a number of energy management 
requirements for Federal buildings found in statutory provisions, 
regulations, Executive Orders, and associated guidance, including, but 
not limited to the National Energy Conservation Policy Act, as amended 
(42 U.S.C. 8253-8258); the Energy Policy Act (EPAct) of 2005 (42 U.S.C. 
15852); 10 CFR parts 433 and 435; and Executive Order 13834 (83 FR 
23771 (May 22, 2018)). This final rule supports and does not supplant 
other legal requirements governing energy consumption in new Federal 
buildings. For example, by designing buildings to meet the ASHRAE 
Standard 90.1-2019 baseline, Federal agencies also help achieve the 
energy intensity reductions mandated under 42 U.S.C. 8253(a).

A. DOE's Analysis of the Cost-Effectiveness of ASHRAE Standard 90.1 as 
Applied to New Federal Buildings

    DOE has determined that the energy efficiency standards for new 
Federal buildings should be updated to reflect the 2019 revisions to 
ASHRAE Standard 90.1 because these revisions are cost-effective for the 
Federal government. DOE's determination that the revisions to ASHRAE 
Standard 90.1 are cost effective for new Federal buildings is based on 
several forms of analysis.
    DOE is required by ECPA section 304(b) to determine whether 
revisions to ASHRAE Standard 90.1 would improve energy efficiency in 
commercial buildings and must publish notice of its determination in 
the Federal Register. (42 U.S.C. 6833(b)(2)(A)). Although DOE's review 
of ASHRAE Standard 90.1 is required for the activities of DOE's State 
building energy codes program, DOE also uses the analysis as part of 
its review for purposes of the baseline standard update for new Federal 
buildings. Accordingly, DOE first compared ASHRAE Standard 90.1-2016 to 
the 2013 version of the standard and found that the revisions in the 
2016 version achieved greater energy efficiency. (See 82 FR 34513 (July 
25, 2017)). This determination was subject to notice and comment. (See 
83 FR 8463 (Feb. 27, 2018)). In that determination, DOE found that the 
2016 version of Standard 90.1 would have energy cost, source energy, 
and site energy savings of 8.3, 7.9, and 6.8 percent, respectively, 
compared to the 2013 version of Standard 90.1. Similarly, DOE compared 
ASHRAE Standard 90.1-2019 to the 2016 version of the standard and found 
that the revisions in the 2019 version would achieve greater energy 
efficiency. (See 86 FR 20674 (April 21, 2021)) This determination was 
subject to notice and comment. (See 86 FR 40543; July 28, 2021). In 
that determination, DOE found that the 2019 version of Standard 90.1 
would have energy cost, source energy, and site energy savings of 4.3, 
4.3, and 4.7 percent, respectively, compared to the 2016 version of 
Standard 90.1. DOE also conducted an independent, supplemental analysis 
of the updated ASHRAE Standard 90.1 as applied to the Federal sector, 
and found that the 2019 version of Standard 90.1 would have energy 
cost, source energy, and site energy savings of 11.3, 11.3, and 11.2 
percent, respectively, compared to the 2013 version of Standard 90.1.
    Second, DOE conducted an analysis of the cost-effectiveness of the 
updated ASHRAE Standard 90.1 as part of DOE's required activities for 
its building energy codes program and found the updated version to be 
cost-effective. DOE determines the cost effectiveness of revisions to 
ASHRAE Standard 90.1 as part of DOE's participation in the code 
development process. Section 307(b) of ECPA requires DOE to participate 
in the ASHRAE code development process and to assist in determining the 
cost-effectiveness of the voluntary standards. (42 U.S.C. 6836). DOE is 
required to periodically review the economic basis of the voluntary 
building energy codes and participate in the industry process for 
review and modification, including seeking adoption of all 
technologically feasible and economically justified energy efficiency 
measures. (42 U.S.C. 6836(b)).
    Finally, DOE conducted an independent, supplemental analysis of 
ASHRAE Standard 90.1-2019 as applied to the Federal sector (baseline 
ASHRAE Standard 90.1-2013), and found that the energy efficiency gains 
resulted in $161.9 million annual life-cycle-cost net savings overall 
for an assumed 19.54 million square feet of annual new Federal 
construction, with a cumulative net present value (NPV) of total 
benefits of $1.66 billion (at a 7-percent discount rate) and $3.48 
billion (at a 3-percent discount rate). This NPV expresses the 
estimated total value of future operating cost savings minus the 
estimated increased building costs for new Federal construction for 
2022-2051 with a 30-year lifetime, along with monetized estimates of 
climate and health benefits. As part of the development of this rule, 
for the purpose of complying with the requirements of Executive Order 
12866, DOE considered the estimated monetary benefits from the reduced 
emissions of CO<INF>2,</INF> CH<INF>4</INF>, N<INF>2</INF>O, 
NO<INF>X</INF>, and SO<INF>2</INF> that are

[[Page 20273]]

expected to result from this rule. On March 16, 2022, the Fifth Circuit 
Court of Appeals (No. 22-30087) granted the federal government's 
emergency motion for stay pending appeal of the February 11, 2022, 
preliminary injunction issued in Louisiana v. Biden, No. 21-cv-1074-
JDC-KK (W.D. La.). As a result of the Fifth Circuit's order, the 
preliminary injunction is no longer in effect, pending resolution of 
the federal government's appeal of that injunction or a further court 
order. Among other things, the preliminary injunction enjoined the 
defendants in that case from ``adopting, employing, treating as 
binding, or relying upon'' the interim estimates of the social cost of 
greenhouse gases--which were issued by the Interagency Working Group on 
the Social Cost of Greenhouse Gases on February 26, 2021--to monetize 
the benefits of reducing greenhouse gas emissions. In the absence of 
further intervening court orders, DOE will revert to its approach prior 
to the injunction and present monetized benefits where appropriate and 
permissible under law. These results are discussed in greater detail in 
section IV of this document.
    DOE's assumptions and methodology for the supplemental review cost-
effectiveness of this rule are based on the cost-effectiveness analysis 
of ASHRAE Standard 90.1-2016 and ASHRAE Standard 90.1-2019 conducted by 
DOE's State building energy codes program. These assumptions and 
methodology also provide the basis for the EA for this rulemaking. In 
this supplemental review, DOE recognized differences in Federal sector 
building types and attempted to address these differences by drawing 
functional equivalencies among building types that were analyzed in the 
cost-effectiveness analysis described above. DOE also calculated the 
weighted average incremental costs for the 14 Federal building types 
that most closely matched the prototypes analyzed in DOE's cost-
effectiveness analysis of Standard 90.1-2019. These Federal building 
types comprise 79.3 percent of estimated Federal construction. DOE 
assumes that all other Federal building types are represented by the 
average of the Federal buildings that were mapped to DOE's cost-
effectiveness analysis building types. The results of this supplemental 
review are discussed in detail in section IV of this document.
    Accordingly, based on these analyses, DOE has determined that the 
energy efficiency standards for new Federal buildings should be updated 
to reflect the 2019 revisions to ASHRAE Standard 90.1 based on the 
cost-effectiveness of the revisions.

B. Federal Agency Implementation of Changes to the Appendix G 
Performance Rating Method in ASHRAE Standard 90.1-2016 and ASHRAE 
Standard 90.1-2019

    As previously discussed, ASHRAE Standard 90.1-2016 was the first 
version of Standard 90.1 in which the Appendix G Performance Rating 
Method may be used to demonstrate compliance with Standard 90.1. In 
previous versions, Appendix G was limited to demonstrating the 
percentage improvement above Standard 90.1. Federal agencies can now 
use Appendix G for both compliance and demonstrating the percentage 
improvement better than ASHRAE Standard 90.1-2019. Federal agencies may 
also choose to use one of the other compliance methods (the 
prescriptive path or the ECB method) to demonstrate compliance with 
Standard 90.1-2019. However, Federal agencies can only use the Appendix 
G Performance Rating Method for calculating the 30 percent improvement 
beyond ASHRAE Standard 90.1 as required in 10 CFR 433.100 and 433.101.
    DOE notes that not all Federal building types are explicitly 
covered by the BPFs listed in Table 4.2.1.1 of ASHRAE Standard 90.1-
2019. DOE plans to work with Federal agencies to define the most 
appropriate building area type for various types of buildings 
constructed in the Federal sector, such as courthouses, barracks, and 
industrial type facilities.
    To calculate the percent improvement beyond ASHRAE Standard 90.1-
2019, Federal agencies must use the formula in new 10 CFR 
433.101(a)(5). The formula is as follows:

    Percent improvement beyond code = 100 x ((PCIt--PCI)/PCIt)

Where

PCI = Performance Cost Index, as defined in Appendix G of ASHRAE 
Standard 90.1-2019, and
PCI<INF>t</INF> = Performance Cost Index Target, as calculated in 
Section 4.2.1.1 of ASHRAE Standard 90.1-2019

    This formula differs from previous formulas that DOE has required 
in 10 CFR 433.101 due to the new ASHRAE requirement to calculate 
PCI<INF>t</INF> to determine whether a proposed building design exceeds 
the energy costs savings of ASHRAE Standard 90.1-2019.
    Importantly, section 4.2.1.1 requires that the Baseline Building 
Unregulated Energy Consumption (BBUEC) be included in the calculation 
of a building's PCI<INF>t</INF>. DOE notes that Federal agencies have 
always been required to include energy consumption that has generally 
been ``unregulated'' by ASHRAE Standard 90.1 (i.e., certain process 
loads and receptacle loads) for purposes of determining compliance with 
ASHRAE Standard 90.1. Additionally, Federal agencies are required to 
include such unregulated energy use to conduct the required whole 
building simulation to establish the baseline for applying the Appendix 
G Performance Rating Method.
    However, Federal agencies are currently required to exclude 
unregulated energy use not within the scope of ASHRAE Standard 90.1 
when determining whether a design has met the required 30 percent 
improvement below ASHRAE Standard 90.1. (10 CFR 433.101(b)) In the 
initial promulgation of the energy efficiency standards for Federal 
commercial and multi-family high rises, DOE stated that such an 
exclusion for process loads was warranted because process loads in 
government facilities typically involve specialized equipment for which 
improvements in energy efficiency may affect the functionality of the 
equipment or where improvements are not available at all. Additionally, 
some Federal buildings use most of their energy serving process loads, 
and application of the energy savings requirement to these buildings 
would likely place an undue burden on the rest of the building if the 
30 percent savings is to be achieved. (See 72 FR 72565, 72567-72568 
(Dec. 21, 2007)). With respect to receptacle loads, DOE stated that it 
is often not possible to identify all receptacle loads when a building 
is designed or constructed as the occupants will to some degree 
establish what is plugged in, and that as equipment is replaced over 
time the initial savings from receptacle loads may diminish. (See 72 FR 
72567-72568) Moreover, DOE stated that the energy efficiency of many 
receptacle loads was addressed in section 104 of EPAct 2005 (Pub. L. 
109-58), which requires Federal agencies to purchase energy efficient 
appliances and equipment. (42 U.S.C 8259b).
    However, due to ASHRAE's explicit inclusion of unregulated energy 
use in the PCI<INF>t</INF> equation, in this final rule, DOE limits the 
types of unregulated loads that may be excluded from the calculation of 
the 30 percent improvement beyond ASHRAE Standard 90.1. This final rule 
revises 10 CFR 433.101(b) to require Federal agencies to include 
unregulated energy use (i.e., process loads and receptacle loads not 
within the scope of ASHRAE Standard 90.1) in agencies'

[[Page 20274]]

determination of PCI<INF>t</INF> when calculating the 30 percent 
improvement beyond ASHRAE Standard 90.1, except for energy-intensive 
process loads that are (i) driven by mission and operational 
requirements, not necessarily buildings, and (ii) not influenced by 
conventional building energy conservation measures. Examples would 
include training simulators, health-care equipment, facilities which 
generate and/or transmit electricity or steam, waterway shipping locks, 
and transmitters and other types of electronic installations. This 
exception aligns with DOE's exception for certain assumed exclusions of 
structures and processes under the Federal energy performance and 
reporting requirements of section 543 of the National Energy 
Conservation Policy Act (NECPA), as amended by EPAct.\10\ (See 42 
U.S.C. 8253(a)) This final rule also removes paragraph (b) from 10 CFR 
433.100, as this paragraph is duplicative of the current paragraph (b) 
in 10 CFR 433.101, and is not reflective of the changes in this final 
rule. Moreover, the content in this paragraph, how to incorporate 
process and receptacle loads in the calculation of the 30 percent 
improvement, is best placed in 10 CFR 433.101, which prescribes the 
equations for the 30 percent improvement calculation.
---------------------------------------------------------------------------

    \10\ Section 543 of NECPA requires agencies to meet specific 
energy reduction targets, report progress towards such targets, 
perform periodic energy consumption evaluations, and implement 
periodic energy conservation measures where feasible. (42 U.S.C. 
8253). Section 543(c)(3) of NECPA requires DOE to issue guidelines 
that establish criteria for exclusions to these performance and 
reporting requirements. These exclusions are outlined in 
``Guidelines Establishing Criteria for Excluding Buildings from the 
Energy Performance Requirements of Section 543 of the National 
Energy Conservation Policy Act as Amended by the Energy Policy Act 
of 2005,'' (Jan. 27, 2006), available at: www.energy.gov/eere/femp/downloads/guidelines-establishing-criteria-excluding-buildings-energy-performance.
---------------------------------------------------------------------------

    DOE acknowledges that the inclusion of unregulated loads into the 
30 percent or more determination is a change from prior practice. 
However, the changes in this final rule ensure consistency between 
ASHRAE Standard 90.1-2019 and the application of the Standard to 
Federal buildings, as required by section 305 of ECPA, while still 
providing agencies the flexibility to exclude unique mission-focused, 
energy-intensive process loads from the 30 percent improvement 
calculation so that the functionality of such loads is not jeopardized 
and an undue burden is not placed on the rest of the building if the 30 
percent savings is to be achieved. The inclusion of unregulated energy, 
particularly receptacle loads, into the 30 percent improvement 
calculation may mean that fewer building designs will meet the 30 
percent threshold, where such designs would otherwise meet that 
threshold if unregulated energy loads were excluded from the 
calculation. However, DOE believes that the inclusion of unregulated 
energy use into this calculation is more consistent with the text of 
section 305 of EPAct 2005, which requires that Federal buildings be 
designed to achieve energy savings of 30 percent or more below ASHRAE 
Standard 90.1, without reference to or exception for process or 
receptacle loads. Moreover, DOE notes that such buildings consume the 
same amount of energy, regardless of whether unregulated energy is 
included in the 30 percent or more calculation. Additionally, DOE 
reiterates that a building design is compliant with 10 CFR 433.100 even 
if the design does not meet the 30 percent or more threshold, provided 
the design obtains the most energy savings below ASHRAE Standard 90.1 
that is cost-effective, in accordance with 10 CFR 433.100(c) (now 
section 433.100(b)).

C. Definition of ``New Federal Building''

    The definition of ``New Federal building'' in 10 CFR part 433 has 
not previously been updated to match what is found in 42 U.S.C. 
6832(6). EISA 2007 (Pub. L. 110-140, 121 Stat. 1614 (Dec. 19, 2007)) 
updated the definition of ``Federal building'' to include privatized 
military family housing and leased buildings. Accordingly, in order to 
bring 10 CFR part 433 into agreement with 42 U.S.C. 6832(6), DOE is 
updating the definition of ``New Federal building'' to mean '' 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 new buildings (including a complete 
replacement of an existing building from the foundation up) built for 
the purpose of being leased by a Federal agency, and privatized 
military housing.''

D. Programmatic Clarifications for Implementing ASHRAE Standard 90.1

    As noted previously, DOE is clarifying and reiterating several 
programmatic principles regarding implementation of ASHRAE Standard 
90.1-2019 in the preamble of final rule. The clarifications and 
reiterations are not changes to the regulatory text. Instead, DOE is 
taking this opportunity to provide answers and clarifications for 
frequent questions that DOE receives from Federal agencies in order to 
reduce confusion over agencies' implementation of ASHRAE Standard 90.1.
1. Whole Building Simulation and Model for Appendix G Performance 
Rating Method
    Based on frequent questions regarding the issue, DOE reiterates 
that the use of the ASHRAE Standard 90.1 Appendix G Performance Rating 
Method requires the consideration of the building envelope and the use 
of a whole-building simulation tool and simulation model for the chosen 
tool of the proposed building design. As noted previously, Federal 
agencies must use the Performance Rating Method when determining if 
their proposed buildings are 30 percent or better beyond ASHRAE 
Standard 90.1. Since all Federal agencies must determine if they can 
meet the 30 percent or more threshold, this means that all Federal 
agencies must use a whole building simulation tool and a building model 
for every new Federal building design. Additionally, where a Federal 
agency uses the Performance Rating Method to determine compliance with 
ASHRAE Standard 90.1-2019, the agency must use a whole building 
simulation tool and whole building model.
2. DOE and Agency Roles When Applying ASHRAE Standard 90.1
    DOE has often received questions regarding enforcement of the 
energy efficiency standards for Federal commercial and multi-family 
high rise buildings, including for situations when agencies may seek 
exceptions to particular aspects of ASHRAE Standard 90.1. Specifically, 
agencies have asked whether DOE is the ``authority having 
jurisdiction'' referenced in ASHRAE Standard 90.1, and whether DOE is 
the ``authority having jurisdiction'' for purposes of granting 
exceptions to aspects of the Standard for Federal agencies. As with 
prior versions of ASHRAE Standard 90.1, Standard 90.1-2019 provides 
some flexibility to building designers based upon the type of code 
requirement at issue. Standard 90.1 contains ``prescriptive 
requirements,'' which may have exceptions to them or may be ``traded 
off'' in the Performance Rating Method if designers are unable or 
choose not to meet a specific prescriptive requirement. Such an 
approach means that another building component would need to be 
improved beyond what was required prescriptively by the Standard for 
that component, or else the overall score of the building design under 
the Performance Rating Method will be lowered. Standard 90.1 also 
contains ``mandatory requirements,'' which may not be traded off with 
other requirements. However, Standard 90.1

[[Page 20275]]

allows building designs to be excepted from meeting certain mandatory 
requirements in certain situations if allowed by the ``authority having 
jurisdiction,'' ``building code official,'' and/or ``code official.'' 
For example, the ``authority having jurisdiction'' or ``code official'' 
is the person who authorizes the use of alternative materials, methods 
of construction, or design (see, e.g., section 4.1.3 of Standard 90.1-
2019), and is also the person charged with determining if there is a 
conflict between the Standard and other laws or requirements and how to 
address such conflict (see section 4.1.5 of Standard 90.1-2019).
    For the purposes of the energy efficiency standards for Federal 
buildings, DOE does not have authority to grant exceptions to the 
Standard for any Federal agency. The statute does not provide a 
specific enforcement authority beyond the statutory requirements, but 
section 548(a) of NEPCA (42 U.S.C. 8258(a)) requires Federal agencies 
to submit to DOE an annual report that describes activities to meet the 
energy management requirements of section 543 of NECPA (42 U.S.C. 
8253). This submittal includes a list of all new Federal buildings 
owned, operated, or controlled by the Federal agency, for which designs 
were started since the beginning of FY 2007 (begun since October 1, 
2006), and a statement specifying whether the Federal buildings are 
expected to meet or exceed the Federal building efficiency standards in 
10 CFR part 433, as applicable. (See www.energy.gov/eere/femp/downloads/annual-energy-management-data-report). The DOE Annual Energy 
Management Data Report Reporting workbook and associated guidance can 
be found on the DOE Federal Energy Management Program (FEMP) 
website.\11\ Federal agencies themselves are responsible for 
implementing the energy efficiency standards for Federal buildings and 
meeting any applicable statutory and regulatory requirements. 
Accordingly, where the terms are used in ASHRAE Standard 90.1, Federal 
agencies are their own ``authority having jurisdiction,'' ``building 
official,'' and/or ``code official,'' and may use their own best 
judgment in determining whether to exempt a proposed Federal building 
from aspects of the Standard or seek an alternative energy conservation 
measure to meet a particular aspect of the Standard where such 
exceptions or alternatives are permitted by the Standard. However, 
agencies must still comply with all relevant Federal energy efficiency 
statutes and regulations, including 10 CFR part 433. DOE notes that, as 
a general rule, any prescriptive requirement in ASHRAE Standard 90.1-
2019 can be ``traded off'' in the Performance Rating Method if agencies 
are unable or choose not to meet a specific prescriptive requirement. 
Such an approach means that another building component would need to be 
improved beyond what was required prescriptively by the Standard for 
that component, or else the overall score of the building design under 
the Performance Rating Method will be lowered. With respect to 
mandatory requirements in the Standard, DOE notes that, as the 
``authority having jurisdiction,'' ``building official,'' or ``code 
official,'' agencies should only be making exceptions to mandatory 
requirements where the Standard allows for the ``authority having 
jurisdiction,'' ``building official,'' and/or ``code official'' to make 
exceptions to such requirements. DOE welcomes Federal agencies' 
questions and requests for assistance in implementing the energy 
efficiency standards for Federal buildings, and DOE will provide 
guidance and assistance upon request.
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    \11\ Federal Comprehensive Annual Energy Reporting Requirements 
www.energy.gov/eere/femp/federal-facility-consolidated-annual-reporting-requirements.
---------------------------------------------------------------------------

IV. Methodology, Analytical Results, and Conclusion

A. Cost-Effectiveness

    DOE's assumptions and methodology for the cost-effectiveness of 
this rule are based on cost-effectiveness analysis of ASHRAE Standard 
90.1-2016 and ASHRAE Standard 90.1-2019 conducted by DOE's State 
building energy codes program,\12\ as well as DOE's EA for this 
rulemaking.\13\ As described in the EA, DOE identified a rate of new 
Federal commercial construction of 19.54 million square feet per year 
with a distribution of building types as shown in Table IV.1. The 
distribution of building types is based on an extraction of the latest 
10 years of new construction data entered into the Federal Real 
Property Portfolio Management System (FRPP MS).\14\ Table IV.1 also 
shows the prototype buildings incorporated into computer simulations 
that are used to estimate energy use in each building type. DOE derived 
these prototype buildings from 16 building types in 17 climate zones 
\15\ using its Commercial Prototype Building models.\16\ Of the 16 
prototype buildings, DOE developed costs for 6 prototype buildings to 
determine the cost effectiveness of ASHRAE Standard 90.1-2016 and 
ASHRAE Standard 90.1-2019. DOE then extracted the cost-effectiveness 
information for those prototype buildings and weighted those values as 
appropriate to obtain an average cost effectiveness value for building 
types found in the Federal commercial sector.
---------------------------------------------------------------------------

    \12\ See DOE's analysis of the cost savings of the 2016 and 2019 
ASHRAE 90.1 Standards at www.energycodes.gov/sites/default/files/2020-07/90.1-2016_National_Cost-Effectiveness.pdf and 
www.energycodes.gov/sites/default/files/2021-07/90.1-2019_National_Cost-Effectiveness.pdf, respectively.
    \13\ The Environmental Assessment (EA) (DOE/EA-2165) is 
entitled, ``Environmental Assessment for Final Rule, 10 CFR part 
433, `Energy Efficiency Standards for New Federal Commercial and 
Multi-Family High-Rise Residential Buildings' Baseline Standards 
Update''. The EA may be found in the docket for this rulemaking and 
at www.energy.gov/nepa/doeea-2165-energy-efficiency-standards-new-federal-commercial-and-multi-family-high-rise.
    \14\ See www.realpropertyprofile.gov/FRPPMS/FRPP_Login.
    \15\ Briggs, R.S., R.G. Lucas, and Z.T. Taylor. 2003. ``Climate 
classification for building energy codes and standards: Part 1--
Development Process.'' ASHRAE Transactions 109(1): 109:121. American 
Society of Heating, Refrigerating and Air-Conditioning Engineers. 
Atlanta, Georgia.
    \16\ DOE's prototype buildings are described at 
www.energycodes.gov/prototype-building-models.

       Table IV.1--New Federal Commercial and High-Rise Multi-Family Construction Volume by Building Type
----------------------------------------------------------------------------------------------------------------
                                            Fraction of
                                              Federal
                                           construction     Assumed BECP prototypes     Assumed BECP prototypes
              Building type                 volume (by        for energy savings        for cost effectiveness
                                            floor area)
                                                (%)
----------------------------------------------------------------------------------------------------------------
Office..................................           20.74  Small Office, Medium        Small Office, Large
                                                           Office, Large Office.       Office.
Dormitories and Barracks................           14.85  Small Hotel, Mid-rise       Small Hotel, Mid-rise
                                                           Apartment, High-rise        Apartment.
                                                           Apartment.

[[Page 20276]]

 
School..................................           14.33  Secondary School..........  Primary School.
Service.................................           13.31  Stand-alone Retail, Non-    Stand-alone Retail.
                                                           refrigerated Warehouse.
Other Institutional Uses................            5.90  None *....................  None.
Hospital................................            5.57  Hospital..................  Small Office, Large
                                                                                       Office.
Warehouses..............................            5.37  Non-Refrigerated Warehouse  None.
Laboratories............................            4.37  Medium Office, Hospital...  Small Office, Large
                                                                                       Office.
All Other...............................            3.45  None......................  None.
Outpatient Healthcare Facility..........            3.35  Outpatient Healthcare.....  Small Office.
Industrial..............................            2.36  None......................  None.
Child Care Center.......................            1.18  Primary School............  Primary School.
Communications Systems..................            1.11  None......................  None.
Prisons and Detention Centers...........            1.01  None......................  None.
Family Housing..........................            0.68  Mid-rise Apartment........  Mid-rise Apartment.
Navigation and Traffic Aids.............            0.53  None......................  None.
Land Port of Entry......................            0.53  Non-refrigerated Warehouse  None.
Border/Inspection Station...............            0.49  Small Office, Non-          Small Office.
                                                           refrigerated Warehouse.
Facility Security.......................            0.31  Small Office..............  Small Office.
Data Centers............................            0.23  None......................  None.
Museum..................................            0.19  None......................  None.
Comfort Station/Restrooms...............            0.07  Non-refrigerated Warehouse  None.
Public Facing Facility..................            0.05  Stand-alone Retail........  Stand-alone Retail.
Aviation Security Related...............            0.01  Small Office..............  Small Office.
Post Office.............................            0.01  Stand-alone Retail........  Stand-alone Retail.
----------------------------------------------------------------------------------------------------------------
* Note that energy savings and cost-effectiveness mapping are not available for a number of Federal building
  types, with other institutional uses, warehouses, and all other being the largest Federal building types with
  no reliable mapping. As described in this section, DOE considered energy savings and costs for these unmapped
  Federal building types to be equivalent to the weighted energy savings and cost for the mapped Federal
  building types.

    DOE has determined incremental construction first cost information 
for the building types and climate zones analyzed for ASHRAE Standard 
90.1-2016 versus ASHRAE Standard 90.1-2013 (see Table IV.2),\17\ ASHRAE 
Standard 90.1-2019 versus ASHRAE Standard 90.1-2016 (see Table IV.3), 
and for ASHRAE Standard 90.1-2019 versus ASHRAE Standard 90.1-2013 (see 
Table IV.4).
---------------------------------------------------------------------------

    \17\ Note that the values in Table VI.2 have been adjusted to 
reflect 2020$ from the table that appears in DOE's determination of 
energy savings for Standard 90.1-2016, which were in 2018$. This 
adjustment was made using the GDP deflator value to correct for 
inflation between 2018 and 2020. Organization for Economic Co-
operation and Development, GDP Implicit Price Deflator in United 
States, retrieved from FRED, Federal Reserve Bank of St. Louis; 
fred.stlouisfed.org/series/USAGDPDEFAISMEI, Updated February 17, 
2021. These values have also been adjusted to reflect the same 
underlying economic assumptions as the 2019 version, and sales tax 
has also been removed.

                   Table IV.2--Incremental Construction First Cost (2020$) for ASHRAE Standard 90.1-2016 vs. ASHRAE Standard 90.1-2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       ASHRAE climate zone *
                 Prototype                              Value            -------------------------------------------------------------------------------
                                                                                2A              3A              3B              4A              5A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small Office..............................  First Cost..................            $673            $584            $515          $1,666            $641
                                            $/ft2.......................            0.12            0.11            0.09            0.30            0.12
Large Office..............................  First Cost..................         261,781         268,194         196,408         354,808         223,553
                                            $/ft2.......................            0.52            0.54            0.39            0.71            0.45
Stand-alone Retail........................  First Cost..................          19,608          20,240          19,740          21,563          19,363
                                            $/ft2.......................            0.79            0.82            0.80            0.87            0.78
Primary School............................  First Cost..................       (126,946)       (121,994)       (116,139)        (94,722)       (122,894)
                                            $/ft2.......................          (1.72)          (1.65)          (1.57)          (1.28)          (1.66)
Small Hotel...............................  First Cost..................       (104,866)       (104,624)       (104,396)       (101,194)       (103,044)
                                            $/ft2.......................          (2.43)          (2.42)          (2.42)          (2.34)          (2.38)
Mid-rise Apartment........................  First Cost..................        (18,343)        (17,490)        (18,113)        (12,445)        (25,126)
                                            $/ft2.......................          (0.54)          (0.52)          (0.54)          (0.37)          (0.74)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Negative costs (shown in parentheses) indicate a reduction in cost due to changes in the code, usually due to reduced HVAC capacity. In this
  particular transition from ASHRAE Standard 90.1-2013 to ASHRAE Standard 90.1-2016, the cost reduction was mainly because of smaller and less expensive
  HVAC equipment since the building HVAC load had decreased. This cost reduction is part of the first cost calculation. Note that in addition to reduced
  equipment costs, there is reduced ductwork or piping costs as well.


[[Page 20277]]


                   Table IV.3--Incremental Construction First Cost (2020$) for ASHRAE Standard 90.1-2019 vs. ASHRAE Standard 90.1-2016
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       ASHRAE climate zone *
                 Prototype                              Value            -------------------------------------------------------------------------------
                                                                                2A              3A              3B              4A              5A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small Office..............................  First Cost..................        ($9,527)        ($9,787)        ($9,890)        ($9,521)        ($9,563)
                                            $/ft2.......................          (1.73)          (1.78)          (1.80)          (1.73)          (1.74)
Large Office..............................  First Cost..................       (989,010)       (976,327)       (930,667)     (1,037,775)       (997,955)
                                            $/ft2.......................          (1.98)          (1.96)          (1.87)          (2.08)          (2.00)
Stand-alone Retail........................  First Cost..................        (33,532)        (33,999)        (34,505)        (34,348)        (34,957)
                                            $/ft2.......................          (1.36)          (1.38)          (1.40)          (1.39)          (1.42)
Primary School............................  First Cost..................       (156,050)       (141,073)       (153,621)       (149,787)       (151,492)
                                            $/ft2.......................          (2.11)          (1.91)          (2.08)          (2.03)          (2.05)
Small Hotel...............................  First Cost..................          26,805          26,218          26,335          26,078          25,616
                                            $/ft2.......................            0.62            0.61            0.61            0.60            0.59
Mid-rise Apartment........................  First Cost..................        (12,251)        (12,645)        (13,894)         (8,127)         (7,839)
                                            $/ft2.......................          (0.36)          (0.37)          (0.41)          (0.24)          (0.23)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Negative costs (shown in parentheses) indicate a reduction in cost due to changes in the code, usually due to reduced HVAC capacity. In this
  particular transition from ASHRAE Standard 90.1-2016 to ASHRAE Standard 90.1-2019, the cost reduction was mainly because of smaller and less expensive
  HVAC equipment since the building HVAC load had decreased. This cost reduction is part of the first cost calculation.

    Table IV.4 combines the incremental first costs associated with the 
2016 and 2019 versions of ASHRAE Standard 90.1. The 2016 analysis was 
adjusted to use the same underlying economic assumptions as the 2019 
version, including fuel prices, fuel price escalations, and labor and 
material costs. Additionally, the underlying calculations for both the 
2016 and 2019 versions were adjusted to remove sales tax, as Federal 
building construction may be exempt from State sales tax, depending on 
the State.

                   Table IV.4--Incremental Construction First Cost (2020$) for ASHRAE Standard 90.1-2019 vs. ASHRAE Standard 90.1-2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       ASHRAE climate zone *
                 Prototype                              Value            -------------------------------------------------------------------------------
                                                                                2A              3A              3B              4A              5A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small Office..............................  First Cost..................        ($8,854)        ($9,204)        ($9,375)        ($7,855)        ($8,922)
                                            $/ft2.......................          (1.61)          (1.67)          (1.70)          (1.43)          (1.62)
Large Office..............................  First Cost..................       (727,229)       (708,133)       (734,259)       (682,967)       (774,402)
                                            $/ft2.......................          (1.46)          (1.42)          (1.47)          (1.37)          (1.55)
Stand-alone Retail........................  First Cost..................        (13,924)        (13,759)        (14,765)        (12,785)        (15,593)
                                            $/ft2.......................          (0.56)          (0.56)          (0.60)          (0.52)          (0.63)
Primary School............................  First Cost..................       (282,996)       (263,067)       (269,760)       (244,509)       (274,386)
                                            $/ft2.......................          (3.83)          (3.56)          (3.65)          (3.31)          (3.71)
Small Hotel...............................  First Cost..................        (78,060)        (78,406)        (78,061)        (75,117)        (77,428)
                                            $/ft2.......................          (1.81)          (1.81)          (1.81)          (1.74)          (1.79)
Mid-rise Apartment........................  First Cost..................        (30,594)        (30,136)        (32,007)        (20,571)        (32,965)
                                            $/ft2.......................          (0.91)          (0.89)          (0.95)          (0.61)          (0.98)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Negative costs (shown in parentheses) indicate a reduction in cost due to changes in the code, usually due to reduced HVAC capacity. In this
  particular transition from ASHRAE Standard 90.1-2013 to ASHRAE Standard 90.1-2019, the cost reduction was mainly because of smaller and less expensive
  HVAC equipment since the building load had decreased. This cost reduction is part of the first cost calculation. Note that in addition to reduced
  equipment costs, there may be reduced ductwork or piping costs as well.

    DOE used data from Table IV.1 and Table IV.4 to calculate 
preliminary values for overall incremental first cost of construction 
for Federal commercial and high-rise, multi-family residential 
buildings. DOE calculated the incremental first cost of the Federal 
building types based on the DOE cost prototypes shown in the far-right 
column of Table IV.1 of this document. DOE then calculated the weighted 
average incremental cost for mapped Federal building types based on 
their corresponding BECP prototypes, which represent an estimated 79.3 
percent of new Federal construction. This weighted incremental cost was 
assigned to un-mapped Federal building types, and a total weighted 
incremental cost was calculated by multiplying the incremental cost for 
each Federal building type by the fraction of Federal construction 
shown in Table IV.1 of this document.
    The national incremental first cost for building types was 
developed by multiplying the average (across climate zones) incremental 
first cost of the prototypes (determined from the DOE State building 
energy codes program ASHRAE Standard 90.1 cost-effectiveness analysis) 
by the fraction of the Federal sector construction volume shown in 
Table IV.1, and then multiplying that by the total estimate of Federal 
new construction floorspace.\18\ DOE estimates that total first cost 
outlays for new Federal buildings will be less under ASHRAE Standard 
90.1-2019 than ASHRAE Standard 90.1-2013, primarily due to lower HVAC 
equipment costs for some building types (See Table IV.2). The resulting 
total incremental first cost estimate is a savings of $32.67 million 
per year. The average first cost decrease is $1.67 per square foot.
---------------------------------------------------------------------------

    \18\ For the Federal office building, the small and large office 
prototype first costs were averaged. For the Federal education 
building, the primary school prototype first cost was used. For the 
Federal dormitories/barracks building type, the small hotel and mid-
rise apartment prototype first costs were averaged.
---------------------------------------------------------------------------

    DOE also analyzed the relative impact of the final rule on the 
first cost of new constructed Federal buildings as a percentage of the 
overall annual cost of newly constructed Federal commercial and high-
rise buildings. In order to estimate the total cost of construction for 
new Federal buildings, DOE obtained estimated construction costs for 
new Federal commercial and high-rise multifamily buildings were

[[Page 20278]]

obtained from RS Means (2020) \19\ for the six building types analyzed 
in DOE's cost-effectiveness report. These new construction costs were 
weighted by the percent of Federal floorspace to develop an average 
cost of a new Federal building of $198 per square foot, as shown in 
Table IV.5. This average construction cost may be multiplied by the 
19.54 million square feet of new Federal construction per year used in 
this rulemaking to estimate the annual total cost of new Federal 
commercial and high-rise multi-family construction of $3.86 billion. As 
previously noted, first cost savings associated with this rulemaking 
are estimated at $32.67 million per year, indicating a potential cost 
reduction in new Federal construction costs of 0.85 percent ($32.67 
million divided by $3.86 billion).
---------------------------------------------------------------------------

    \19\ RS Means. 2020. RS Means Building Construction Cost Data, 
78th Ed. Construction Publishers & Consultants. Norwell, MA.

                         Table IV.5--First Cost of Typical New Federal Building in $/ft2
----------------------------------------------------------------------------------------------------------------
                                                                                   First cost *    Weighted cost
                      Federal building type                         Weight (%)          ($)             ($)
----------------------------------------------------------------------------------------------------------------
Office..........................................................           20.74             210           43.51
Barracks and Dormitories........................................           14.85             217           32.18
School..........................................................           14.33             225           32.25
Service.........................................................           13.31             116           15.44
Hospital........................................................            5.57             200           11.14
Laboratories....................................................            4.37             200            8.73
Outpatient Healthcare Facility..................................            3.35             220            7.38
Child Care Center...............................................            1.18             225            2.67
Family Housing >3 Stories.......................................            0.68             218            1.48
Border/Inspection Station.......................................            0.49             220            1.07
Facility Security...............................................            0.31             220            0.69
Aviation Security Related.......................................            0.01             220            0.02
Public Facing Facility..........................................            0.05             116            0.06
Post Office.....................................................            0.01             116            0.01
Remaining Federal Stock.........................................           20.75             198           41.00
                                                                 -----------------------------------------------
    Federal Average.............................................          100.00             198          197.62
----------------------------------------------------------------------------------------------------------------
* All building first cost data from RS Means 2020.

    For annual average (first year) energy cost savings, DOE used a 
similar approach to that used for incremental first cost. That is, DOE 
developed the national first year energy cost savings \20\ for building 
types by multiplying the average (across climate zones) energy cost 
savings (determined from the DOE ASHRAE Standard 90.1 cost-
effectiveness analysis) by the fraction of the Federal sector 
construction volume shown in Table IV.1, and then multiplying that by 
the total estimate of Federal new construction floorspace.\21\ Table 
IV.6 \22\ and Table IV.7 show annual energy cost savings by prototype 
buildings for ASHRAE Standard 90.1-2016 compared to ASHRAE Standard 
90.1-2013 and for ASHRAE Standard 90.1-2019 compared to ASHRAE Standard 
90.1-2016 respectively, and Table IV.8 shows the combined energy cost 
savings associated with the 2016 and 2019 versions of ASHRAE Standard 
90.1. As was done for the incremental cost analysis, the 2016 energy 
cost savings analysis was adjusted to use the same underlying economic 
assumptions as the 2019 version, including fuel prices, fuel price 
escalations, labor and material costs, and the removal of sales tax. 
The resulting total annual energy cost savings for 19.54 million square 
feet of annual construction was estimated to be $3.4 million. The 
average annual energy savings in year 1 was estimated to be $0.17 per 
square foot. Note the annual energy cost savings are for one year of 
Federal commercial and high-rise multi-family residential construction 
and that those savings would accumulate over the evaluation period.
---------------------------------------------------------------------------

    \20\ The energy costs used were the national average energy 
costs used by ASHRAE in the development of Standard 90.1-2019. To 
quote the cost-effectiveness analysis report ``Energy rates used to 
calculate the energy costs from the modeled energy usage were $0.98/
therm for fossil fuel and $0.1063/kWh for electricity. These rates 
were used for the 90.1-2019 energy analysis and derived from the EIA 
data. These were the values approved by the SSPC 90.1 for cost-
effectiveness for the evaluation of individual addenda during the 
development of 90.1-2019.''
    \21\ For the Federal office building, the small and large office 
prototype LCCs were weighted by estimated fraction of small and 
large offices observed in the FRPP MS database over the past 10 
years of construction. For the Federal education building, the 
primary school prototype LCC was used. For the Federal dorm/barracks 
building type, the small office, small hotel and mid-rise apartment 
prototype LCCs were averaged.
    \22\ Note that the values in Table VI.6 have been adjusted to 
reflect 2020$ from the table that appears in DOE's determination of 
energy savings for Standard 90.1-2016, which were in 2018$. This 
adjustment was made using the GDP deflator value to correct for 
inflation between 2018 and 2020. Organization for Economic Co- 
operation and Development, GDP Implicit Price Deflator in United 
States, retrieved from FRED, Federal Reserve Bank of St. Louis; 
fred.stlouisfed.org/series/USAGDPDEFAISMEI, Updated February 17, 
2021. These values have also been adjusted to reflect the same 
underlying economic assumptions as the 2019 version.

                 Table IV.6--Average First Year Energy Cost Savings (2020$) for ASHRAE Standard 90.1-2016 vs. ASHRAE Standard 90.1-2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       ASHRAE climate zone *
                 Prototype                              Value            -------------------------------------------------------------------------------
                                                                                2A              3A              3B              4A              5A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small Office..............................  First Cost..................            $597            $583            $589            $557            $591
                                            $/ft2.......................            0.11            0.11            0.11            0.10            0.11
Large Office..............................  First Cost..................          37,492          39,844          19,652          49,019          45,108
                                            $/ft2.......................            0.08            0.08            0.04            0.10            0.09

[[Page 20279]]

 
Stand-alone Retail........................  First Cost..................           3,324           3,214           2,895           3,075           2,778
                                            $/ft2.......................            0.13            0.13            0.12            0.12            0.11
Primary School............................  First Cost..................          15,245          16,130          11,841          15,560          16,377
                                            $/ft2.......................            0.21            0.22            0.16            0.21            0.22
Small Hotel...............................  First Cost..................           6,964           6,594           6,025           7,193           8,019
                                            $/ft2.......................            0.16            0.15            0.14            0.17            0.19
Mid-rise Apartment........................  First Cost..................           1,715           1,615           1,649           1,461           1,881
                                            $/ft2.......................            0.05            0.05            0.05            0.04            0.06
--------------------------------------------------------------------------------------------------------------------------------------------------------


                 Table IV.7--Average First Year Energy Cost Savings (2020$) for ASHRAE Standard 90.1-2019 vs. ASHRAE Standard 90.1-2016
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       ASHRAE climate zone *
                 Prototype                              Value            -------------------------------------------------------------------------------
                                                                                2A              3A              3B              4A              5A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small Office..............................  First Cost..................            $278            $259            $271            $237            $235
                                            $/ft2.......................            0.05            0.05            0.05            0.04            0.04
Large Office..............................  First Cost..................          36,020          36,525          29,947          29,898          31,038
                                            $/ft2.......................            0.07            0.07            0.06            0.06            0.06
Stand-alone Retail........................  First Cost..................           2,674           2,309           2,395           2,035           1,927
                                            $/ft2.......................            0.11            0.09            0.10            0.08            0.08
Primary School............................  First Cost..................           6,320           6,085           6,945           5,411           5,439
                                            $/ft2.......................            0.09            0.08            0.09            0.07            0.07
Small Hotel...............................  First Cost..................           4,002           3,754           3,833           3,364           3,203
                                            $/ft2.......................            0.09            0.09            0.09            0.08            0.07
Mid-rise Apartment........................  First Cost..................           1,747           1,581             732             542             522
                                            $/ft2.......................            0.05            0.05            0.02            0.02            0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------


                 Table IV.8--Average First Year Energy Cost Savings (2020$) for ASHRAE Standard 90.1-2019 vs. ASHRAE Standard 90.1-2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       ASHRAE climate zone *
                 Prototype                              Value            -------------------------------------------------------------------------------
                                                                                2A              3A              3B              4A              5A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small Office..............................  First Cost..................            $874            $842            $860            $794            $826
                                            $/ft2.......................            0.16            0.15            0.16            0.14            0.15
Large Office..............................  First Cost..................          73,512          76,369          49,598          78,917          76,146
                                            $/ft2.......................            0.15            0.15            0.10            0.16            0.15
Stand-alone Retail........................  First Cost..................           5,998           5,522           5,290           5,111           4,705
                                            $/ft2.......................            0.24            0.22            0.21            0.21            0.19
Primary School............................  First Cost..................          21,565          22,215          18,786          20,971          21,816
                                            $/ft2.......................            0.29            0.30            0.25            0.28            0.29
Small Hotel...............................  First Cost..................          10,966          10,348           9,858          10,557          11,222
                                            $/ft2.......................            0.25            0.24            0.23            0.24            0.26
Mid-rise Apartment........................  First Cost..................           3,462           3,196           2,381           2,003           2,403
                                            $/ft2.......................            0.10            0.09            0.07            0.06            0.07
--------------------------------------------------------------------------------------------------------------------------------------------------------

    For LCC net savings, DOE used a similar approach to that used for 
incremental first cost and first year energy cost savings. That is, DOE 
developed the national annual LCC net savings \23\ for building types 
by multiplying the average (across climate zones) LCC net savings 
(determined from the DOE ASHRAE Standard 90.1 cost-effectiveness 
analysis) by the fraction of the Federal sector construction volume 
shown in Table IV.1, and then multiplying that by the total estimate of 
Federal new construction floorspace.\24\ Table IV.9 \25\ and Table 
IV.10 show annual LCC net savings by prototype buildings for ASHRAE 
Standard 90.1-2016 compared to ASHRAE Standard 90.1-2013 and for ASHRAE 
Standard 90.1-2019 compared to ASHRAE Standard 90.1-2016 respectively, 
and Table IV.11 shows the combined LCC associated with the 2016 and 
2019 versions of ASHRAE Standard 90.1. As was done for the incremental 
cost analysis, the 2016 LCC analysis was adjusted to use the same 
underlying

[[Page 20280]]

economic assumptions as the 2019 version, including fuel prices, fuel 
price escalations, labor and material costs, and the removal of sales 
tax. The resulting total LCC net savings for 19.54 million square feet 
of annual construction was estimated to be $161.9 million. The average 
LCC net savings in year 1 was estimated to be $8.29 per square foot. 
Note the annual LCC savings are for one year of Federal commercial and 
high-rise multi-family residential construction and that those savings 
would accumulate over the LCC evaluation period. For the purpose of 
this analysis, DOE relied on a 30-year period.\26\
---------------------------------------------------------------------------

    \23\ The energy costs used were the national average energy 
costs used by ASHRAE in the development of Standard 90.1-2019. To 
quote the cost-effectiveness analysis report ``Energy rates used to 
calculate the energy costs from the modeled energy usage were $0.98/
therm for fossil fuel and $0.1063/kWh for electricity. These rates 
were used for the 90.1-2019 energy analysis and derived from the EIA 
data. These were the values approved by the SSPC 90.1 for cost-
effectiveness for the evaluation of individual addenda during the 
development of 90.1-2019.''
    \24\ For the Federal office building, the small and large office 
prototype LCCs were weighted by estimated fraction of small and 
large offices observed in the FRPP MS database over the past 10 
years of construction. For the Federal education building, the 
primary school prototype LCC was used. For the Federal dorm/barracks 
building type, the small office, small hotel and mid-rise apartment 
prototype LCCs were averaged.
    \25\ Note that the values in Table IV.9 have been adjusted to 
reflect 2020$ from the table that appears in DOE's determination of 
energy savings for Standard 90.1-2016, which were in 2018$. This 
adjustment was made using the GDP deflator value to correct for 
inflation between 2018 and 2020. Organization for Economic Co-
operation and Development, GDP Implicit Price Deflator in United 
States, retrieved from FRED, Federal Reserve Bank of St. Louis; 
fred.stlouisfed.org/series/USAGDPDEFAISMEI, Updated February 17, 
2021. These values have also been adjusted to reflect the same 
underlying economic assumptions as the 2019 version, and sales tax 
has also been removed.
    \26\ Lavappa, P. and J. Kneifel. 2021. Energy Price Indices and 
Discount Factors for Life-Cycle Cost Analysis-2021 Annual Supplement 
to NIST Handbook 135.

 Table IV.9--Annual Life-Cycle Cost (LCC) Net Savings (2020$) for ASHRAE Standard 90.1-2016 vs. ASHRAE Standard
                                                    90.1-2013
----------------------------------------------------------------------------------------------------------------
                                                                ASHRAE climate zone
                                 -------------------------------------------------------------------------------
            Prototype                                                  Value
                                 -------------------------------------------------------------------------------
                                        2A              3A              3B              4A              5A
----------------------------------------------------------------------------------------------------------------
Small Office:
    Total.......................         $11,545         $11,362         $11,605          $9,814         $11,502
    $/ft\2\.....................            2.10            2.07            2.11            1.78            2.09
Large Office:
    Total.......................         393,008         459,357         166,387         584,969         722,155
    $/ft\2\.....................            0.79            0.92            0.33            1.17            1.45
Stand-alone Retail:
    Total.......................         297,938         294,578         289,116         290,447         287,461
    $/ft\2\.....................           12.07           11.93           11.71           11.76           11.64
Primary School:
    Total.......................         383,418         394,371         299,407         349,720         402,682
    $/ft\2\.....................            5.18            5.33            4.05            4.73            5.44
Small Hotel:
    Total.......................         244,166         236,409         225,204         244,098         261,430
    $/ft\2\.....................            5.65            5.47            5.21            5.65            6.05
Mid-rise Apartment:
    Total.......................          67,323          63,971          65,950          54,724          83,693
    $/ft\2\.....................            2.00            1.90            1.95            1.62            2.48
----------------------------------------------------------------------------------------------------------------


 Table IV.10--Annual Life-Cycle Cost (LCC) Net Savings (2020$) for ASHRAE Standard 90.1-2019 vs. ASHRAE Standard
                                                    90.1-2016
----------------------------------------------------------------------------------------------------------------
                                                                ASHRAE climate zone
                                 -------------------------------------------------------------------------------
            Prototype                                                  Value
                                 -------------------------------------------------------------------------------
                                        2A              3A              3B              4A              5A
----------------------------------------------------------------------------------------------------------------
Small Office:
    Total.......................         $22,458         $22,257         $22,670         $21,425         $21,303
    $/ft\2\.....................            4.08            4.05            4.12            3.89            3.87
Large Office:
    Total.......................       2,140,166       2,137,734       1,907,461       2,083,232       2,054,131
    $/ft\2\.....................            4.29            4.29            3.83            4.18            4.12
Stand-alone Retail:
    Total.......................         120,306         113,599         117,007         108,246         106,638
    $/ft\2\.....................            4.87            4.60            4.74            4.38            4.32
Primary School:
    Total.......................         395,974         370,009         398,497         367,937         372,306
    $/ft\2\.....................            5.35            5.00            5.39            4.97            5.03
Small Hotel:
    Total.......................         604,477         600,247         601,537         592,772         590,215
    $/ft\2\.....................           13.99           13.89           13.92           13.72           13.66
Mid-rise Apartment:
    Total.......................          88,940          89,183          73,209          57,750          56,579
    $/ft\2\.....................            2.64            2.64            2.17            1.71            1.68
----------------------------------------------------------------------------------------------------------------


 Table IV.11--Annual Life-Cycle Cost (LCC) Net Savings (2020$) for ASHRAE Standard 90.1-2019 vs. ASHRAE Standard
                                                    90.1-2013
----------------------------------------------------------------------------------------------------------------
                                                                ASHRAE climate zone
                                 -------------------------------------------------------------------------------
            Prototype                                                  Value
                                 -------------------------------------------------------------------------------
                                        2A              3A              3B              4A              5A
----------------------------------------------------------------------------------------------------------------
Small Office:
    Total.......................         $34,003         $33,620         $34,274         $31,238         $32,805
    $/ft\2\.....................            6.18            6.11            6.23            5.68            5.96
Large Office:
    Total.......................       2,533,174       2,597,090       2,073,848       2,668,200       2,776,287
    $/ft\2\.....................            5.08            5.21            4.16            5.35            5.57
Stand-alone Retail:

[[Page 20281]]

 
    Total.......................         418,244         408,176         406,123         398,693         394,099
    $/ft\2\.....................           16.94           16.53           16.45           16.15           15.96
Primary School:
    Total.......................         779,392         764,380         697,904         717,657         774,987
    $/ft\2\.....................           10.54           10.33            9.44            9.70           10.48
Small Hotel:
    Total.......................         848,643         836,656         826,742         836,871         851,646
    $/ft\2\.....................           19.64           19.37           19.14           19.37           19.71
Mid-rise Apartment:
    Total.......................         156,263         153,154         139,159         112,474         140,271
    $/ft\2\.....................            4.63            4.54            4.12            3.33            4.16
----------------------------------------------------------------------------------------------------------------

    DOE determined that the total incremental first cost estimate for 
Federal buildings (as mapped to the prototype buildings in Table IV.1) 
is a savings of $32.67 million per year, with an average first cost 
decrease of $1.67 per square foot. DOE determined that the total first 
year energy cost estimate is a savings of $3.4 million per year, with 
an average first year energy cost savings of $0.17 per square foot. DOE 
estimated $161.9 million in annual LCC net savings for the entire 
Federal commercial and multi-family high-rise buildings sector with an 
average LCC net savings of $8.29 per square foot.
    DOE also conducted a net benefits and costs analysis using a 30-
year analysis period and an assumed building lifetime of 30 years. The 
building lifetime assumption was made to correspond with availability 
of underlying data from the cost-effectiveness analysis conducted by 
DOE's State building energy codes program.
    DOE calculated the net present value (NPV) of the change in 
equipment cost and reduced operating cost associated with the 
difference between ASHRAE 90.1-2013 and ASHRAE 90.1-2019. The NPV is 
the value in the present of a time-series of costs and savings, equal 
to the present value of savings in operating cost minus the present 
value of the increased total equipment cost to consumers.
    DOE determined the total increased equipment cost for each year of 
the analysis period (2022-2051) using the incremental construction cost 
described previously. DOE determined the present value of operating 
cost savings for each year from the beginning of the analysis period to 
the year when all Federal buildings constructed by 2051 have been 
retired, assuming a 30-year lifetime of the building.
    The average annual operating cost includes the costs for energy, 
repair or replacement of building components (e.g., heating and cooling 
equipment, lighting, and envelope measures), and maintenance of the 
building. DOE determined the per-unit annual savings in operating cost 
based on the savings in energy costs plus replacement and maintenance 
cost savings, which were calculated in the underlying cost-
effectiveness analysis by DOE's State building energy codes program. 
While DOE used the methodology and prices described above to calculate 
first year energy cost savings and LCC net savings, for the NPV 
calculations, DOE determined the per-unit annual savings in operating 
cost by multiplying the per square foot annual electricity and natural 
gas savings in energy consumption by the appropriate energy price from 
EIA's AEO2021.\27\ DOE forecasted energy prices based on projected 
average annual price changes in EIA's AEO2021 to develop the operating 
cost savings through the analysis period.
---------------------------------------------------------------------------

    \27\ DOE--U.S. Department of Energy. 2021. Annual Energy Outlook 
2021 with Projections to 2050. Washington, DC Available at 
www.eia.gov/outlooks/aeo/.
---------------------------------------------------------------------------

    DOE uses national discount rates to calculate national NPV. DOE 
estimated NPV using both a 3-percent and a 7-percent real discount 
rate, in accordance with the Office of Management and Budget's guidance 
to Federal agencies on the development of regulatory analysis, 
particularly section E therein: Identifying and Measuring Benefits and 
Costs.\28\ The NPV is the sum over time of the discounted net savings.
---------------------------------------------------------------------------

    \28\ Office of Management and Budget. OMB Circular A-4, 
Regulatory Analysis. 2003. OMB: Washington, DC September 17, 2003. 
www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------

    The present value of increased equipment costs is the annual total 
cost increase in each year (the difference between ASHRAE 90.1-2019 and 
ASHRAE 90.1-2013), discounted to the present, and summed throughout the 
analysis period (2022 through 2051). Because new construction is held 
constant through the analysis period, the installed cost is constant.
    The present value of savings in operating cost is the annual 
savings in operating cost (the difference between ASHRAE 90.1-2019 and 
ASHRAE 90.1-2013), discounted to the present and summed through the 
analysis period (2022 through 2051). Savings are decreases in operating 
cost associated with the higher energy efficiency associated with 
buildings designed to ASHRAE 90.1-2019 compared to ASHRAE 90.1-2013. 
Total annual savings in operating cost are the savings per square foot 
multiplied by the number of square feet that survive in a particular 
year through the lifetime of the buildings constructed in the last year 
of the analysis period.

B. Monetization of Emissions Reduction Benefits

    As part of the development of this rule, for the purpose of 
complying with the requirements of Executive Order 12866, DOE 
considered the estimated monetary benefits from the reduced emissions 
of CO<INF>2,</INF> CH<INF>4</INF>, N<INF>2</INF>O, NO<INF>X</INF>, and 
SO<INF>2</INF> that are expected to result from this rule. In order to 
make this calculation analogous to the calculation of the NPV of 
consumer benefit, DOE considered the reduced emissions expected to 
result over the lifetime of buildings constructed in the analysis 
period. This section summarizes the basis for the values used for 
monetizing the emissions benefits and presents the values considered in 
this rule.
    On March 16, 2022, the Fifth Circuit Court of Appeals (No. 22-
30087) granted the federal government's emergency motion for stay 
pending appeal of the February 11, 2022, preliminary injunction issued 
in Louisiana v. Biden, No. 21-cv-1074-

[[Page 20282]]

JDC-KK (W.D. La.). As a result of the Fifth Circuit's order, the 
preliminary injunction is no longer in effect, pending resolution of 
the federal government's appeal of that injunction or a further court 
order. Among other things, the preliminary injunction enjoined the 
defendants in that case from ``adopting, employing, treating as 
binding, or relying upon'' the interim estimates of the social cost of 
greenhouse gases--which were issued by the Interagency Working Group on 
the Social Cost of Greenhouse Gases on February 26, 2021--to monetize 
the benefits of reducing greenhouse gas emissions. In the absence of 
further intervening court orders, DOE will revert to its approach prior 
to the injunction and present monetized benefits where appropriate and 
permissible under law.
1. Monetization of Greenhouse Gas Emissions
    For the purpose of complying with the requirements of Executive 
Order 12866, DOE estimates the monetized benefits of the reductions in 
emissions of CO<INF>2</INF>, CH<INF>4</INF>, and N<INF>2</INF>O by 
using a measure of the social cost (``SC'') of each pollutant (e.g., 
SC-GHGs). These estimates represent the monetary value of the net harm 
to society associated with a marginal increase in emissions of these 
pollutants in a given year, or the benefit of avoiding that increase. 
These estimates are intended to include (but are not limited to) 
climate-change-related changes in net agricultural productivity, human 
health, property damages from increased flood risk, disruption of 
energy systems, risk of conflict, environmental migration, and the 
value of ecosystem services. DOE exercises its own judgment in 
presenting monetized climate benefits as recommended by applicable 
Executive Orders and guidance, and DOE would reach the same conclusion 
presented in this notice in the absence of the social cost of 
greenhouse gases, including the February 2021 Interim Estimates 
presented by the Interagency Working Group on the Social Cost of 
Greenhouse Gases. DOE exercises its own judgment in presenting 
monetized climate benefits as recommended by applicable Executive 
Orders, and DOE would reach the same conclusion presented in this 
notice in the absence of the social cost of greenhouse gases, including 
the February 2021 Interim Estimates presented by the Interagency 
Working Group on the Social Cost of Greenhouse Gases.
    DOE estimated the global social benefits of CO<INF>2</INF>, 
CH<INF>4</INF>, and N<INF>2</INF>O reductions (i.e., SC-GHGs) using the 
estimates presented in the Technical Support Document: Social Cost of 
Carbon, Methane, and Nitrous Oxide Interim Estimates under Executive 
Order 13990 published in February 2021 by the Interagency Working Group 
on the Social Cost of Greenhouse Gases (IWG) (IWG, 2021).\29\ The SC-
GHGs is the monetary value of the net harm to society associated with a 
marginal increase in emissions in a given year, or the benefit of 
avoiding that increase. In principle, SC-GHGs includes the value of all 
climate change impacts, including (but not limited to) changes in net 
agricultural productivity, human health effects, property damage from 
increased flood risk and natural disasters, disruption of energy 
systems, risk of conflict, environmental migration, and the value of 
ecosystem services. The SC-GHGs therefore, reflects the societal value 
of reducing emissions of the gas in question by one metric ton. The SC-
GHGs is the theoretically appropriate value to use in conducting 
benefit-cost analyses of policies that affect CO<INF>2</INF>, 
N<INF>2</INF>O and CH<INF>4</INF> emissions. As a member of the IWG 
involved in the development of the February 2021 SC-GHG TSD), the DOE 
agrees that the interim SC-GHG estimates represent the most appropriate 
estimate of the SC-GHG until revised estimates have been developed 
reflecting the latest, peer-reviewed science.
---------------------------------------------------------------------------

    \29\ See Interagency Working Group on Social Cost of Greenhouse 
Gases, Technical Support Document: Social Cost of Carbon, Methane, 
and Nitrous Oxide. Interim Estimates Under Executive Order 13990, 
Washington, DC, February 2021. Available at: www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf 
(last accessed March 17, 2021).
---------------------------------------------------------------------------

    The SC-GHGs estimates presented here were developed over many 
years, using transparent process, peer-reviewed methodologies, the best 
science available at the time of that process, and with input from the 
public. Specifically, in 2009, an interagency working group (IWG) that 
included the DOE and other executive branch agencies and offices was 
established to ensure that agencies were using the best available 
science and to promote consistency in the social cost of carbon (SC-
CO<INF>2</INF>) values used across agencies. The IWG published SC-
CO<INF>2</INF> estimates in 2010 that were developed from an ensemble 
of three widely cited integrated assessment models (IAMs) that estimate 
global climate damages using highly aggregated representations of 
climate processes and the global economy combined into a single 
modeling framework. The three IAMs were run using a common set of input 
assumptions in each model for future population, economic, and 
CO<INF>2</INF> emissions growth, as well as equilibrium climate 
sensitivity (ECS)--a measure of the globally averaged temperature 
response to increased atmospheric CO<INF>2</INF> concentrations. These 
estimates were updated in 2013 based on new versions of each IAM. In 
August 2016 the IWG published estimates of the social cost of methane 
(SC-CH<INF>4</INF>) and nitrous oxide (SC-N<INF>2</INF>O) using 
methodologies that are consistent with the methodology underlying the 
SC-CO<INF>2</INF> estimates. The modeling approach that extends the IWG 
SC-CO<INF>2</INF> methodology to non-CO<INF>2</INF> GHGs has undergone 
multiple stages of peer review. The SC-CH<INF>4</INF> and SC-
N<INF>2</INF>O estimates were developed by Marten et al. (2015) and 
underwent a standard double-blind peer review process prior to journal 
publication. In 2015, as part of the response to public comments 
received to a 2013 solicitation for comments on the SC-CO<INF>2</INF> 
estimates, the IWG announced a National Academies of Sciences, 
Engineering, and Medicine review of the SC-CO<INF>2</INF> estimates to 
offer advice on how to approach future updates to ensure that the 
estimates continue to reflect the best available science and 
methodologies. In January 2017, the National Academies released their 
final report, Valuing Climate Damages: Updating Estimation of the 
Social Cost of Carbon Dioxide, and recommended specific criteria for 
future updates to the SC-CO<INF>2</INF> estimates, a modeling framework 
to satisfy the specified criteria, and both near-term updates and 
longer-term research needs pertaining to various components of the 
estimation process (National Academies, 2017).\30\ Shortly thereafter, 
in March 2017, President Trump issued Executive Order 13783, which 
disbanded the IWG, withdrew the previous TSDs, and directed agencies to 
ensure SC-CO<INF>2</INF> estimates used in regulatory analyses are 
consistent with the guidance contained in OMB's Circular A-4, 
``including with respect to the consideration of domestic versus 
international impacts and the consideration of appropriate discount 
rates'' (E.O. 13783, Section 5(c)).
---------------------------------------------------------------------------

    \30\ See National Academies of Sciences, Engineering, and 
Medicine. 2017. Valuing Climate Damages: Updating Estimation of the 
Social Cost of Carbon Dioxide. Washington, DC: The National 
Academies Press. doi.org/10.17226/24651.
---------------------------------------------------------------------------

    On January 20, 2021, President Biden issued Executive Order 13990, 
which re-established the IWG and directed it to ensure that the U.S. 
Government's estimates of the social cost of carbon and other 
greenhouse gases reflect the

[[Page 20283]]

best available science and the recommendations of the National 
Academies (2017). The IWG was tasked with first reviewing the SC-GHG 
estimates currently used in Federal analyses and publishing interim 
estimates within 30 days of the E.O. that reflect the full impact of 
GHG emissions, including by taking global damages into account. The 
interim SC-GHG estimates published in February 2021, specifically the 
SC-CH<INF>4</INF> estimates, are used here to estimate the climate 
benefits for this rule. The E.O. instructs the IWG to undertake a 
fuller update of the SC-GHG estimates by January 2022 that takes into 
consideration the advice of the National Academies (2017) and other 
recent scientific literature.
    The February 2021 SC-GHG TSD provides a complete discussion of the 
IWG's initial review conducted under E.O. 13990. In particular, the IWG 
found that the SC-GHG estimates used under E.O. 13783 fail to reflect 
the full impact of GHG emissions in multiple ways. First, the IWG found 
that a global perspective is essential for SC-GHG estimates because it 
fully captures climate impacts that affect the United States and which 
have been omitted from prior U.S.-specific estimates due to 
methodological constraints. Examples of omitted effects include direct 
effects on U.S. citizens, assets, and investments located abroad, 
supply chains, and tourism, and spillover pathways such as economic and 
political destabilization and global migration. In addition, assessing 
the benefits of U.S. GHG mitigation activities requires consideration 
of how those actions may affect mitigation activities by other 
countries, as those international mitigation actions will provide a 
benefit to U.S. citizens and residents by mitigating climate impacts 
that affect U.S. citizens and residents. If the United States does not 
consider impacts on other countries, it is difficult to convince other 
countries to consider the impacts of their emissions on the United 
States. As a member of the IWG involved in the development of the 
February 2021 SC-GHG TSD, DOE agrees with this assessment and, 
therefore, in this rule DOE centers attention on a global measure of 
SC-GHG. This approach is the same as that taken in DOE regulatory 
analyses from 2012 through 2016. Prior to that, in 2008 DOE presented 
Social Cost of Carbon (SCC) estimates based on values the 
Intergovernmental Panel on Climate Change (IPCC) identified in 
literature at that time. As noted in the February 2021 SC-GHG TSD, the 
IWG will continue to review developments in the literature, including 
more robust methodologies for estimating a U.S.-specific SC-GHG value, 
and explore ways to better inform the public of the full range of 
carbon impacts. As a member of the IWG, DOE will continue to follow 
developments in the literature pertaining to this issue.
    Second, the IWG found that the use of the social rate of return on 
capital (7 percent under current OMB Circular A-4 guidance) to discount 
the future benefits of reducing GHG emissions inappropriately 
underestimates the impacts of climate change for the purposes of 
estimating the SC-GHG. Consistent with the findings of the National 
Academies (2017) and the economic literature, the IWG continued to 
conclude that the consumption rate of interest is the theoretically 
appropriate discount rate in an intergenerational context (IWG 2010, 
2013, 2016a, 2016b), and recommended that discount rate uncertainty and 
relevant aspects of intergenerational ethical considerations be 
accounted for in selecting future discount rates. As a member of the 
IWG involved in the development of the February 2021 SC-GHG TSD, DOE 
agrees with this assessment and will continue to follow developments in 
the literature pertaining to this issue.
    While the IWG works to assess how best to incorporate the latest, 
peer reviewed science to develop an updated set of SC-GHG estimates, it 
set the interim estimates to be the most recent estimates developed by 
the IWG prior to the group being disbanded in 2017. The estimates rely 
on the same models and harmonized inputs and are calculated using a 
range of discount rates. As explained in the February 2021 SC-GHG TSD, 
the IWG has recommended that agencies to revert to the same set of four 
values drawn from the SC-GHG distributions based on three discount 
rates as were used in regulatory analyses between 2010 and 2016 and 
subject to public comment. For each discount rate, the IWG combined the 
distributions across models and socioeconomic emissions scenarios 
(applying equal weight to each) and then selected a set of four values 
recommended for use in benefit-cost analyses: An average value 
resulting from the model runs for each of three discount rates (2.5 
percent, 3 percent, and 5 percent), plus a fourth value, selected as 
the 95th percentile of estimates based on a 3 percent discount rate. 
The fourth value was included to provide information on potentially 
higher-than-expected economic impacts from climate change. As explained 
in the February 2021 SC-GHG TSD, and DOE agrees, this update reflects 
the immediate need to have an operational SC-GHG for use in regulatory 
benefit-cost analyses and other applications that was developed using a 
transparent process, peer-reviewed methodologies, and the science 
available at the time of that process. Those estimates were subject to 
public comment in the context of dozens of proposed rulemakings as well 
as in a dedicated public comment period in 2013.
    DOE's derivations of the SC-GHGs (i.e., SC-CO<INF>2</INF>, SC-
N<INF>2</INF>O, and SC-CH<INF>4</INF>) values used for this rule are 
discussed in the following sections, and the results of DOE's analyses 
estimating the benefits of the reductions in emissions of these 
pollutants are presented in section VII.A of this document.
a. Social Cost of Carbon
    The SC-CO<INF>2</INF> values used for this rule were generated 
using the values presented in the 2021 update from the IWG's February 
2021 TSD. Table IV.12 shows the updated sets of SC-CO<INF>2</INF> 
estimates from the latest interagency update in 5-year increments from 
2020 to 2050. For purposes of capturing the uncertainties involved in 
regulatory impact analysis, DOE has determined it is appropriate 
include all four sets of SC-CO<INF>2</INF> values, as recommended by 
the IWG.\31\
---------------------------------------------------------------------------

    \31\ For example, the February 2021 TSD discusses how the 
understanding of discounting approaches suggests that discount rates 
appropriate for intergenerational analysis in the context of climate 
change may be lower than 3 percent.

[[Page 20284]]



                    Table IV.12--Annual SC-CO2 Values From 2021 Interagency Update, 2020-2050
                                           [2020$ per metric ton CO2]
----------------------------------------------------------------------------------------------------------------
                                                                     Discount rate
                                     ---------------------------------------------------------------------------
                Year                          5%                 3%                2.5%                3%
                                     ---------------------------------------------------------------------------
                                           Average            Average            Average        95th percentile
----------------------------------------------------------------------------------------------------------------
2020................................                 14                 51                 76                152
2025................................                 17                 56                 83                169
2030................................                 19                 62                 89                187
2035................................                 22                 67                 96                206
2040................................                 25                 73                103                225
2045................................                 28                 79                110                242
2050................................                 32                 85                116                260
----------------------------------------------------------------------------------------------------------------

    In calculating the potential global benefits resulting from reduced 
CO<INF>2</INF> emissions, DOE used the values from the 2021 interagency 
report, adjusted to 2020$ using the implicit price deflator for gross 
domestic product (``GDP'') from the Bureau of Economic Analysis. For 
each of the four sets of SC-CO<INF>2</INF> cases specified, the values 
for emissions in 2020 were $14, $51, $76, and $152 per metric ton 
avoided (values expressed in 2020$). DOE derived values from 2051 to 
2070 based on estimates published by EPA.\32\ These estimates are based 
on methods, assumptions, and parameters identical to the 2020-2050 
estimates published by the IWG. DOE derived values after 2070 based on 
the trend in 2060-2070 in each of the four cases in the IWG update.
---------------------------------------------------------------------------

    \32\ See EPA, Revised 2023 and Later Model Year Light-Duty 
Vehicle GHG Emissions Standards: Regulatory Impact Analysis, 
Washington, DC, December 2021. Available at: www.epa.gov/system/files/documents/2021-12/420r21028.pdf (last accessed January 13, 
2022).
---------------------------------------------------------------------------

    DOE multiplied the CO<INF>2</INF> emissions reduction estimated for 
each year by the SC-CO<INF>2</INF> value for that year in each of the 
four cases. To calculate a present value of the stream of monetary 
values, DOE discounted the values in each of the four cases using the 
specific discount rate that had been used to obtain the SC-
CO<INF>2</INF> values in each case.
b. Social Cost of Methane and Nitrous Oxide
    The SC-CH<INF>4</INF> and SC-N<INF>2</INF>O values used for this 
rule were generated using the values presented in the 2021 update from 
the IWG.\33\ Table IV.13 shows the updated sets of SC-CH<INF>4</INF> 
and SC-N<INF>2</INF>O estimates from the latest interagency update in 
5-year increments from 2020 to 2050. To capture the uncertainties 
involved in regulatory impact analysis, DOE has determined it is 
appropriate to include all four sets of SC-CH<INF>4</INF> and SC-
N<INF>2</INF>O values, as recommended by the IWG.
---------------------------------------------------------------------------

    \33\ See Interagency Working Group on Social Cost of Greenhouse 
Gases, Technical Support Document: Social Cost of Carbon, Methane, 
and Nitrous Oxide. Interim Estimates Under Executive Order 13990, 
Washington, DC, February 2021. Available at: www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf 
(last accessed March 17, 2021).

                                                      Table IV.13--Annual SC-CH4 and SC-N2O Values From 2021 Interagency Update, 2020-2050
                                                                                     [2020$ per metric ton]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          SC-CH4                                                             SC-N2O
                                                           -------------------------------------------------------------------------------------------------------------------------------------
                                                                               Discount rate and statistic                                        Discount rate and statistic
                           Year                            -------------------------------------------------------------------------------------------------------------------------------------
                                                                  5%              3%             2.5%               3%               5%              3%             2.5%               3%
                                                           -------------------------------------------------------------------------------------------------------------------------------------
                                                                Average         Average         Average      95th percentile       Average         Average         Average      95th percentile
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2020......................................................             670            1500            2000               3900            5800           18000           27000              48000
2025......................................................             800            1700            2200               4500            6800           21000           30000              54000
2030......................................................             940            2000            2500               5200            7800           23000           33000              60000
2035......................................................            1100            2200            2800               6000            9000           25000           36000              67000
2040......................................................            1300            2500            3100               6700           10000           28000           39000              74000
2045......................................................            1500            2800            3500               7500           12000           30000           42000              81000
2050......................................................            1700            3100            3800               8200           13000           33000           45000              88000
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    DOE multiplied the CH<INF>4</INF> and N<INF>2</INF>O emissions 
reduction estimated for each year by the SC-CH<INF>4</INF> and SC-
N<INF>2</INF>O estimates for that year in each of the cases. To 
calculate a present value of the stream of monetary values, DOE 
discounted the values in each of the cases using the specific discount 
rate that had been used to obtain the SC-CH<INF>4</INF> and SC-
N<INF>2</INF>O estimates in each case.
2. Monetization of Other Air Pollutants
    DOE estimated the monetized value of NO<INF>X</INF> and 
SO<INF>2</INF> emissions reductions from electricity generation using 
benefit per ton estimates based on air quality modeling and 
concentration-response functions conducted for the Clean Power Plan 
final rule. 84 FR 32520. DOE used EPA's values for NO<INF>X</INF> (as 
PM<INF>2.5</INF>) and SO<INF>2</INF> for 2020, 2025, and 2030 
calculated with discount rates of 3 percent and 7 percent, and EPA's 
values for ozone season NO<INF>X,</INF> which do not involve 
discounting since the impacts are in the same year as emissions. DOE 
used linear interpolation to define values for the years between 2020 
and 2025 and between 2025 and 2030; for years beyond 2030 the values 
are held constant.
    DOE also estimated the monetized value of NO<INF>X</INF> and 
SO<INF>2</INF> emissions reductions from site use of natural gas in 
buildings impacted by this rule using benefit-per-ton estimates from 
the EPA's

[[Page 20285]]

Benefits Mapping and Analysis Program. Although none of the sectors 
covered by EPA refers specifically to residential and commercial 
buildings, the sector called ``area sources'' would be a reasonable 
proxy for residential and commercial buildings.\34\ The EPA document 
provides high and low estimates for 2025 and 2030 at 3- and 7-percent 
discount rates.\35\ DOE used the same linear interpolation and 
extrapolation as it did with the values for electricity generation. DOE 
primarily relied on the low estimates to be conservative.
---------------------------------------------------------------------------

    \34\ ``Area sources'' represents all emission sources for which 
states do not have exact (point) locations in their emissions 
inventories. Because exact locations would tend to be associated 
with larger sources, ``area sources'' would be fairly representative 
of small dispersed sources like homes and businesses.
    \35\ ``Area sources'' are a category in the 2018 document from 
EPA, but are not used in the 2021 document cited above. See: 
www.epa.gov/sites/default/files/2018-02/documents/sourceapportionmentbpttsd_2018.pdf.
---------------------------------------------------------------------------

    DOE multiplied the emissions reduction (in tons) in each year by 
the associated $/ton values, and then discounted each series using 
discount rates of 3 percent and 7 percent as appropriate. On March 16, 
2022, the Fifth Circuit Court of Appeals (No. 22-30087) granted the 
federal government's emergency motion for stay pending appeal of the 
February 11, 2022, preliminary injunction issued in Louisiana v. Biden, 
No. 21-cv-1074-JDC-KK (W.D. La.). As a result of the Fifth Circuit's 
order, the preliminary injunction is no longer in effect, pending 
resolution of the federal government's appeal of that injunction or a 
further court order. Among other things, the preliminary injunction 
enjoined the defendants in that case from relying on ``adopting, 
employing, treating as binding, or relying upon'' the interim estimates 
of the social cost of greenhouse gases--which were issued by the 
Interagency Working Group on the Social Cost of Greenhouse Gases on 
February 26, 2021--to monetize the benefits of reducing greenhouse gas 
emissions. In the absence of further intervening court orders, DOE will 
revert to its approach prior to the injunction and present monetized 
benefits in accordance with applicable Executive Orders, and applicable 
guidance.

C. Conclusion

    This analysis results in a cumulative net present value (NPV) of 
total benefits of the rule of $1.66 billion (at a 7-percent discount 
rate) and $3.48 billion (at a 3-percent discount rate). This NPV 
expresses the estimated total value of future operating cost savings 
minus the estimated increased building costs for new Federal 
construction for 2022-2051 with a 30-year lifetime and includes 
monetized climate and health benefits (see Table IV.14). DOE estimates 
climate benefits from a reduction in greenhouse gases (GHG) using four 
different estimates of the social cost of CO<INF>2</INF> (``SC-
CO<INF>2</INF>''), the social cost of methane (``SC-CH<INF>4</INF>''), 
and the social cost of nitrous oxide (``SC-N<INF>2</INF>O''). Together 
these represent the social cost of GHG (SC-GHG). DOE used interim SC-
GHG values developed by an Interagency Working Group on the Social Cost 
of Greenhouse Gases (IWG).<SUP>36 37</SUP> DOE does not have a single 
central SC-GHG point estimate and it emphasizes the importance and 
value of considering the benefits calculated using all four SC-GHG 
estimates. DOE is currently only monetizing (for SO<INF>2</INF> and 
NO<INF>X</INF>) PM<INF>2.5</INF> precursor health benefits and (for 
NO<INF>X</INF>) ozone precursor health benefits, but will continue to 
assess the ability to monetize other effects such as health benefits 
from reductions in direct PM<INF>2.5</INF> emissions.
---------------------------------------------------------------------------

    \36\ See Interagency Working Group on Social Cost of Greenhouse 
Gases, Technical Support Document: Social Cost of Carbon, Methane, 
and Nitrous Oxide. Interim Estimates Under Executive Order 13990, 
Washington, DC, February 2021. https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalvSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf.
    \37\ On March 16, 2022, the Fifth Circuit Court of Appeals (No. 
22-30087) granted the federal government's emergency motion for stay 
pending appeal of the February 11, 2022, preliminary injunction 
issued in Louisiana v. Biden, No. 21-cv-1074-JDC-KK (W.D. La.). As a 
result of the Fifth Circuit's order, the preliminary injunction is 
no longer in effect, pending resolution of the federal government's 
appeal of that injunction or a further court order. Among other 
things, the preliminary injunction enjoined the defendants in that 
case from ``adopting, employing, treating as binding, or relying 
upon'' the interim estimates of the social cost of greenhouse 
gases--which were issued by the Interagency Working Group on the 
Social Cost of Greenhouse Gases on February 26, 2021--to monetize 
the benefits of reducing greenhouse gas emissions. In the absence of 
further intervening court orders, DOE will revert to its approach 
prior to the injunction and present monetized benefits where 
appropriate and permissible under law.
---------------------------------------------------------------------------

    The benefits and costs of the rulemaking can also be expressed in 
terms of annualized values. The annualized net benefit is (1) the 
annualized national economic value (expressed in 2020$) of the benefits 
from building to ASHRAE 90.1-2019, consisting primarily of operating 
cost savings from using less energy), minus increases in building 
costs, and (2) the annualized monetary value of the benefits of climate 
(GHG) and health (NO<INF>X</INF>, and SO<INF>2</INF>) emission 
reductions. Table IV.15 shows the annualized values for this 
rulemaking, expressed in 2020$. In the tables, total benefits for both 
the 3-percent and 7-percent cases are presented using the average GHG 
social costs with 3-percent discount rate, but the Department 
emphasizes the importance and value of considering the benefits 
calculated using all four SC-GHG cases.

      Table IV.14--Summary of Monetized Economic Benefits and Costs
                             [Billion 2020$]
                    [2022-2051 plus 30-year lifetime]
------------------------------------------------------------------------
                                                      Billion $2020
------------------------------------------------------------------------
                            3% discount rate
------------------------------------------------------------------------
Consumer Operating Cost Savings................                     1.86
Climate Benefits *.............................                     0.38
Health Benefits **.............................                     0.60
                                                ------------------------
    Total Benefits [dagger]....................                     2.84
Consumer Incremental Product Costs                                 -0.64
 [dagger][dagger]..............................
                                                ------------------------
    Net Benefits...............................                     3.48
------------------------------------------------------------------------
                            7% discount rate
------------------------------------------------------------------------
Consumer Operating Cost Savings................                     0.65

[[Page 20286]]

 
Climate Benefits *.............................                     0.38
Health Benefits **.............................                     0.22
                                                ------------------------
    Total Benefits [dagger]....................                     1.25
Consumer Incremental Product Costs                                 -0.41
 [dagger][dagger]..............................
                                                ------------------------
    Net Benefits...............................                     1.66
------------------------------------------------------------------------
Note: This table presents the costs and benefits associated with Federal
  new commercial and multi-family high-rise buildings built in 2022-
  2051. These results include benefits to consumers which accrue after
  2051 from the buildings constructed in 2022-2051.
* Climate benefits are calculated using four different estimates of the
  social cost of carbon (SC-CO2), methane (SC-CH4), and nitrous oxide
  (SC-N2O) (model average at 2.5 percent, 3 percent, and 5 percent
  discount rates; 95th percentile at 3 percent discount rate). Together
  these represent the social cost of greenhouse gases (SC-GHG). For
  presentational purposes of this table, the climate benefits associated
  with the average SC-GHG at a 3 percent discount rate are shown but the
  Department does not have a single central SC-GHG point estimate, and
  it emphasizes the importance and value of considering the benefits
  calculated using all four SC-GHG estimates. See section IV.B of this
  document for more details.
** Health benefits are calculated using benefit-per-ton values for NOX
  and SO2. DOE is currently only monetizing (for SO2 and NOX) PM2.5
  precursor health benefits and (for NOX) ozone precursor health
  benefits, but will continue to assess the ability to monetize other
  effects such as health benefits from reductions in direct PM2.5
  emissions. The health benefits are presented at real discount rates of
  3 and 7 percent. See section IV.B of this document for more details.
[dagger] Total and net benefits include consumer operating cost savings
  and benefits related to public health and climate. On March 16, 2022,
  the Fifth Circuit Court of Appeals (No. 22-30087) granted the federal
  government's emergency motion for stay pending appeal of the February
  11, 2022, preliminary injunction issued in Louisiana v. Biden, No. 21-
  cv-1074-JDC-KK (W.D. La.). As a result of the Fifth Circuit's order,
  the preliminary injunction is no longer in effect, pending resolution
  of the federal government's appeal of that injunction or a further
  court order. Among other things, the preliminary injunction enjoined
  the defendants in that case from ``adopting, employing, treating as
  binding, or relying upon'' the interim estimates of the social cost of
  greenhouse gases--which were issued by the Interagency Working Group
  on the Social Cost of Greenhouse Gases on February 26, 2021--to
  monetize the benefits of reducing greenhouse gas emissions. In the
  absence of further intervening court orders, DOE will revert to its
  approach prior to the injunction and present monetized benefits where
  appropriate and permissible under law.
[dagger][dagger] Costs include incremental equipment costs as well as
  installation costs.


                       Table IV.15--Annualized Monetized Benefits, Costs, and Net Benefits
                                                 [Million 2020$]
                                        [2022-2051 plus 30-year lifetime]
----------------------------------------------------------------------------------------------------------------
                                                                               Million 2020$/year
                           Category                            -------------------------------------------------
                                                                    3% Discount rate         7% Discount rate
----------------------------------------------------------------------------------------------------------------
Consumer Operating Cost Savings...............................                     94.9                     52.5
Climate Benefits *............................................                     19.1                     19.1
Health Benefits **............................................                     30.7                     18.1
                                                               -------------------------------------------------
    Total Benefits [dagger]...................................                    144.8                     89.7
Costs [dagger][dagger]........................................                    -32.7                    -32.7
                                                               -------------------------------------------------
    Net Benefits..............................................                    177.5                    122.4
----------------------------------------------------------------------------------------------------------------
Note: This table presents the costs and benefits associated with Federal new commercial and multi-family high-
  rise buildings built in 2022-2051. These results include benefits to consumers which accrue after 2051 from
  the buildings constructed in 2022-2051.
* Climate benefits are calculated using four different estimates of the social cost of carbon (SC-CO2), methane
  (SC-CH4), and nitrous oxide (SC-N2O) (model average at 2.5 percent, 3 percent, and 5 percent discount rates;
  95th percentile at 3 percent discount rate). Together these represent the social cost of greenhouse gases (SC-
  GHG). For presentational purposes of this table, the climate benefits associated with the average SC-GHG at a
  3 percent discount rate are shown, but the Department does not have a single central SC-GHG point estimate,
  and it emphasizes the importance and value of considering the benefits calculated using all four SC-GHG
  estimates. See section IV.B of this document for more details.
** Health benefits are calculated using benefit-per-ton values for NOX and SO2. DOE is currently only monetizing
  (for SO2 and NOX) PM2.5 precursor health benefits and (for NOX) ozone precursor health benefits, but will
  continue to assess the ability to monetize other effects such as health benefits from reductions in direct
  PM2.5 emissions. The health benefits are presented at real discount rates of 3 and 7 percent. See section IV.B
  of this document for more details.
[dagger] Total and net benefits include consumer operating cost savings and benefits related to public health
  and climate. On March 16, 2022, the Fifth Circuit Court of Appeals (No. 22-30087) granted the federal
  government's emergency motion for stay pending appeal of the February 11, 2022, preliminary injunction issued
  in Louisiana v. Biden, No. 21-cv-1074-JDC-KK (W.D. La.). As a result of the Fifth Circuit's order, the
  preliminary injunction is no longer in effect, pending resolution of the federal government's appeal of that
  injunction or a further court order. Among other things, the preliminary injunction enjoined the defendants in
  that case from ``adopting, employing, treating as binding, or relying upon'' the interim estimates of the
  social cost of greenhouse gases--which were issued by the Interagency Working Group on the Social Cost of
  Greenhouse Gases on February 26, 2021--to monetize the benefits of reducing greenhouse gas emissions. In the
  absence of further intervening court orders, DOE will revert to its approach prior to the injunction and
  present monetized benefits where appropriate and permissible under law.
[dagger][dagger] Costs include incremental equipment costs as well as installation costs.

    Accordingly, DOE has determined that the implementation of ASHRAE 
Standard 90.1-2019 versus Standard 90.1-2013 for Federal commercial and 
multi-family high-rise buildings is cost-effective. DOE is presenting 
monetized climate benefits in accordance with the applicable Executive 
Orders and DOE would reach the same conclusion

[[Page 20287]]

presented in this notice in the absence of the social cost of 
greenhouse gases, including the February 2021 Interim Estimates 
presented by the Interagency Working Group on the Social Cost of 
Greenhouse Gases.

V. Compliance Date

    This final rule applies to new Federal commercial and multi-family 
high-rise residential buildings for which design for construction 
begins on or after one year from the publication date of this 
rulemaking in the Federal Register. (42 U.S.C. 6834(a)(1)) Such 
buildings must be designed to exceed the energy efficiency level of the 
appropriate updated voluntary standard by 30 percent if LCC effective. 
However, at a minimum, such buildings must achieve the energy 
efficiency equal to that of the appropriate updated voluntary standard. 
One year lead time before the design for construction begins is 
consistent with DOE's previous updates to the energy efficiency 
baselines and the original statutory mandate for Federal building 
standards. One year lead time before design for construction begins 
helps minimize compliance costs to agencies, which may have planned 
buildings in various stages of design and allows for design changes to 
more fully consider LCC-effective measures (as opposed to having to 
revise designs in development, which may make incorporation of energy 
efficiency measure more difficult or expensive).

VI. Reference Resources

    DOE first prepared this list of resources to help Federal agencies 
achieve building energy efficiency levels for the original rulemaking 
establishing the baseline energy performance standards for new Federal 
commercial and multi-family high-rise residential buildings. DOE has 
reviewed these resources and believes that they continue to be useful 
for helping agencies maximize their energy efficiency levels. DOE has 
updated this resource list as necessary. These resources come in many 
forms and in a variety of media. Resources are provided for all 
buildings, and also specifically for commercial and multi-family high-
rise residential buildings. FEMP offers an online search database of 
tools that can help agencies reduce energy use and meet Federal laws 
and requirements. Tools include software, calculators, data sets, and 
databases created by DOE and other Federal organizations. This resource 
can be found at www.energy.gov/eere/femp/federal-energy-management-tools.

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

    The following references and sources are provided to aid interested 
parties in gathering additional information and specifics regarding 
various aspects of this rule.
(1) Energy Efficient Products--FEMP and U.S. Environmental Protection 
Agency (EPA) ENERGY STAR Program
www.energy.gov/eere/femp/search-energy-efficient-products
www.energy.gov/eere/femp/energy-efficient-products-and-energy-saving-technologies

    Federal agencies are required by EPAct 2005 and 10 CFR part 436 to 
specify FEMP designated or ENERGY STAR equipment, including building 
mechanical and lighting equipment and builder-supplied appliances, for 
purchase and installation in all new construction unless the agency can 
show that the use of such equipment is not life-cycle cost-effective. 
This equipment is generally more efficient than the corresponding 
requirements of ASHRAE Standard 90.1-2019 and may be used to achieve 
part of the savings required of Federal building designs. (This rule 
does not require the use of EnergyStar or FEMP-designated equipment, 
but the FEMP websites, accessed through the previous links, are 
provided as useful resources for achieving part of the energy savings 
required by the rule.)
(2) LCC Analysis--FEMP
www.wbdg.org/FFC/NIST/hdbk_135.pdf
nvlpubs.nist.gov/nistpubs/ir/2018/NIST.IR.85-3273-33.pdf

    As detailed previously, agencies are required to determine the 
percentage beyond compliance with ASHRAE Standard 90.1 that would be 
life-cycle cost effective and to design new Federal buildings to 
achieve that percentage. DOE has promulgated LCC analysis rules in 10 
CFR part 436 subpart A Life-Cycle Cost Methodology and Procedures (55 
FR 48220, Nov. 20, 1990, as amended at 61 FR 32650, June 25, 1996) that 
conform to requirements in the Federal Energy Management Improvement 
Act of 1988 (Pub. L. 100-615) and subsequent energy conservation 
legislation. LCC guidance and required discount rates and energy price 
projections are determined annually by FEMP and the Energy Information 
Administration (EIA) and are published in the Annual Supplement to The 
National Institute of Standards and Technology (NIST) Handbook 135: 
``Energy Price Indices and Discount Factors for Life-Cycle Cost 
Analysis.''

(3) Building Energy Efficiency Support Resources--DOE Building 
Technologies Office
www.energy.gov/eere/buildings/building-technologies-office
www.energy.gov/eere/buildings/building-energy-modeling
www.energy.gov/eere/buildings/about-building-energy-modeling

    The website for DOE's Building Technologies Office provides 
information, case studies, and tools to help evaluate energy 
efficiency, renewable energy, and sustainability in buildings. The 
Whole-Building Energy Modeling (BEM) is a versatile, multipurpose tool 
that is used in new building and retrofit design, code compliance, 
green certification, qualification for tax credits and utility 
incentives, and real-time building control. BEM can be used to assess 
the inherent performance of a building while controlling for specific 
use and operation.
(4) ASHRAE Standard 90.1-2019--ASHRAE
www.ashrae.org/technical-resources/standards-and-guidelines/read-only-versions-of-ashrae-standards

    The baseline energy efficiency standard for commercial and multi-
family high-rise buildings is ANSI/ASHRAE/IESNA Standard 90.1-2019. A 
read-only version of Standard 90.1-2019 can be found at the link 
``Standard 90.1-2019, Energy Standard for Buildings Except Low-Rise 
Residential Buildings.''

(5) Whole Building Design Guide (WBDG)--National Institute of Building 
Sciences
www.wbdg.org
www.wbdg.org/design-objectives/sustainable/optimize-energy-use

    The WBDG is a web-based portal providing government and industry 
practitioners with one-stop access to up-to-date information on a wide 
range of building-related guidance, criteria, and technology from a 
``whole buildings'' perspective. Currently, WBDG is organized into 
three major categories--design guidance, project management, and 
operations & maintenance. Development of the WBDG is a collaborative 
effort among Federal agencies, private sector companies, non-profit 
organizations, and educational institutions.
(6) International Institute for Sustainable Laboratories (I2SL)
www.i2sl.org/resources/toolkit.html

[[Page 20288]]

Laboratory Benchmarking Tool
https://lbt.i2sl.org/

    This website focuses on improving the energy efficiency and 
environmental performance of laboratory space. The website includes 
training, educational resources, and design and benchmarking tools 
focused on laboratories.
(7) Sustainable Facilities Tool--GSA Office of Federal High-Performance 
Buildings
https://sftool.gov/ www.gsa.gov/about-us/organization/office-of-governmentwide-policy/office-of-federal-highperformance-buildings

    The GSA is tasked with putting our nation's public servants into 
efficient, healthy buildings and buying goods and services that provide 
maximum value to the taxpayer. The Sustainable Facilities Tool (SFTool) 
was created by the GSA Office of Federal High-Performance Green 
Buildings to connect Federal planners with new sustainability solutions 
and to assist the GSA in realizing healthier, more efficient 
workplaces. SFTool is an interactive website designed to show the user 
how to build, buy, and operate green property. Project managers can 
derive the most value from the SFTool by using it to understand Federal 
sustainability requirements; build effective project delivery teams and 
inform project planning; educate partners and stakeholders on the 
benefits of considering sustainable solutions; and discover high-
performance, green building options and products.
(8) ASHRAE Advanced Energy Design Guide (AEDG) Series
www.ashrae.org/technical-resources/aedgs

    To promote building energy efficiency, ASHRAE and its partners are 
making the AEDGs available for free download. The zero-energy guides 
offer designers and contractors the tools needed for achieving zero 
energy buildings. The 50 percent guides offer designers and contractors 
the tools needed for achieving a 50 percent energy savings compared to 
buildings that meet the minimum requirements of Standard 90.1-2004, and 
the 30 percent guides offer a 30 percent energy savings compared to 
buildings that meet the minimum energy requirements of Standard 90.1-
1999. ASHRAE, in collaboration with the American Institute of 
Architects (AIA), IES, U.S. Green Building Council (USGBC), and DOE, 
continues to develop the AEDG series.
(9) ASHRAE Standard 90.1 Performance Based Compliance (Section 11 and 
Appendix G)
www.energycodes.gov/performance_based_compliance#tools

    The website for DOE's Building Energy Codes Program (BECP) provides 
further information and tools to assist with the performance rating 
method, including the following:
    <bullet> Spreadsheet-based compliance forms that meet the 
documentation requirements of ASHRAE Standard 90.1-2019 section 11 and 
Appendix G,
    <bullet> The ASHRAE Standard 90.1 section 11 and Appendix G 
Submittal Review Manual (the Manual), a comprehensive reference for 
reviewing modeling-based submittals, and
    <bullet> The 2010 and 2016 Performance Rating Method Reference 
Manuals, which include procedure and process descriptions to help 
provide consistency and accuracy to users of the Performance Rating 
Method.

VII. Regulatory Analysis

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

    This final rule is an ``economically significant regulatory 
action'' under Executive Order 12866, ``Regulatory Planning and 
Review.'' 58 FR 51735 (October 4, 1993). Accordingly, this action was 
subject to review by the Office of Information and Regulatory Affairs 
in the Office of Management and Budget (OMB). OMB has completed its 
review. DOE has also reviewed this regulation pursuant to Executive 
Order 13563, issued on January 18, 2011. 76 FR 3281 (January 21, 2011). 
E.O. 13563 is supplemental to and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866.
    As discussed previously in this final rule, DOE is required to 
determine, based on cost-effectiveness, whether the standards for 
Federal buildings should be updated to reflect an amendment to the 
ASHRAE Standard. As stated previously, DOE complied with the statutory 
language by analyzing the cost-effectiveness of ASHRAE Standard 90.1-
2019, which included, through DOE's involvement in the ASHRAE code 
development process, consideration of ASHRAE's cost-effectiveness 
criteria for Standard 90.1-2019.
    Review under Executive Order 12866 requires an analysis of the 
economic effect of the rule. For this purpose, DOE estimated 
incremental first cost (in this case, the difference between the cost 
of a building designed to meet ASHRAE Standard 90.1-2019 and a building 
designed to meet ASHRAE Standard 90.1-2013) for the Federal commercial 
and high-rise multi-family residential buildings sector, as well as LCC 
net savings. First, DOE estimated that the annual full fuel cycle 
national energy savings would be 0.273 trillion Btu (associated with 
one year of Federal construction), that the cumulative (over the 30-
year analysis period) full fuel cycle national energy savings would be 
0.12 quadrillion Btu, and that the cumulative (including building 
lifetime savings) full fuel cycle national energy savings would be 0.23 
quadrillion Btu (see Table VII.1, Table VII.2, and Table VII.3). Based 
on these energy savings and using the methodology described in section 
IV, DOE estimated the resulting incremental first cost, first year 
energy cost savings, and annual LCC net savings. DOE determined that 
the total incremental first cost estimate is a savings of $32.67 
million per year, with an average first cost decrease of $1.67 per 
square foot. DOE determined that the total first year energy cost 
estimate is a savings of $3.4 million, with an average first year 
energy cost savings of $0.17 per square foot. DOE estimated $161.9 
million in annual LCC net savings for the entire Federal commercial and 
multi-family high-rise buildings sector with an average LCC net savings 
of $8.29 per square foot. (See Table VII.4).
    Table VII.5 shows the monetized economic benefits and costs 
expected to result from this rulemaking. Using a 7-percent discount 
rate for consumer benefits and costs and health benefits, and a 3-
percent discount rate case for GHG social (climate) costs, the 
estimated cost of this rulemaking is -$0.41 billion in increased 
equipment costs, while the estimated benefits are $0.65 billion in 
reduced equipment operating costs, $0.38 billion in climate benefits, 
and $0.22 billion in health benefits. In this case, the net monetized 
benefit amounts to $1.66 billion. Using a 3-percent discount rate for 
all monetized benefits and costs, the estimated cost of this rulemaking 
is -$0.64 billion in increased equipment costs, while the estimated 
benefits are $1.86 billion in reduced equipment operating costs, $0.38 
billion in climate benefits, and $0.60 billion in health benefits. In 
this case, the net monetized benefit amounts to $3.48 billion.
    Table VII.6 shows the annualized monetized economic benefits and 
costs expected to result from this rulemaking. Using a 7-percent 
discount rate for consumer benefits and costs and health benefits, and 
a 3-percent discount rate case for GHG social (climate) costs, the

[[Page 20289]]

estimated cost of this rulemaking is -$32.7 million per year in 
increased equipment costs, while the estimated annual benefits are 
$52.5 million in reduced equipment operating costs, $19.1 million in 
climate benefits, and $18.1 million in health benefits. In this case, 
the net monetized benefit amounts to $122.4 million per year. Using a 
3-percent discount rate for all monetized benefits and costs, the 
estimated cost of this rulemaking is -$32.7 million per year in 
increased equipment costs, while the estimated annual benefits are 
$94.9 million in reduced equipment operating costs, $19.1 million in 
climate benefits, and $30.7 million in health benefits. In this case, 
the net monetized benefit amounts to $177.5 million per year.

  Table VII.1--Annual Energy Savings for ASHRAE Standard 90.1-2019 vs.
                        ASHRAE Standard 90.1-2013
------------------------------------------------------------------------
                                                  Results--ASHRAE 90.1-
                                                 2019 compared to ASHRAE
                    Category                        90.1-2013 baseline
                                                          (TBtu)
------------------------------------------------------------------------
Annual Site National Energy Savings (Trillion                      0.106
 Btu)..........................................
Annual Source National Energy Savings (Trillion                    0.261
 Btu)..........................................
Annual Full Fuel Cycle National Energy Savings                     0.273
 (Trillion Btu)................................
------------------------------------------------------------------------


Table VII.2--Cumulative Energy Savings for ASHRAE Standard 90.1-2019 vs.
                        ASHRAE Standard 90.1-2013
                        [30-year analysis period]
------------------------------------------------------------------------
                                                  Results--ASHRAE 90.1-
                                                 2019 compared to ASHRAE
                    Category                        90.1-2013 baseline
                                                         (quads)
------------------------------------------------------------------------
Cumulative Site National Energy Savings (quads)                    0.049
Cumulative Source National Energy Savings                          0.115
 (quads).......................................
Cumulative Full Fuel Cycle National Energy                         0.120
 Savings (quads)...............................
------------------------------------------------------------------------


Table VII.3--Cumulative Lifetime Energy Savings for ASHRAE Standard 90.1-
                   2019 vs. ASHRAE Standard 90.1-2013
                    [2022-2051 plus 30-year lifetime]
------------------------------------------------------------------------
                                                  Results--ASHRAE 90.1-
                                                 2019 compared to ASHRAE
                    Category                        90.1-2013 baseline
                                                         (quads)
------------------------------------------------------------------------
Cumulative Lifetime Site National Energy                           0.095
 Savings (quads)...............................
Cumulative Lifetime Source National Energy                         0.223
 Savings (quads)...............................
Cumulative Lifetime Full Fuel Cycle National                       0.232
 Energy Savings (quads)........................
------------------------------------------------------------------------


  Table VII.4--Cost-Effectiveness Results for ASHRAE Standard 90.1-2019
                      vs. ASHRAE Standard 90.1-2013
                                 [2020$]
------------------------------------------------------------------------
                                      Results--ASHRAE 90.1-2019 compared
              Category                   to ASHRAE 90.1-2013 baseline
------------------------------------------------------------------------
Average LCC Net Savings (2020$)....  $8.29/ft \2\.
Annual LCC Net Savings (2020$).....  $161.9 million.
First Year Energy Cost Savings       $0.17/ft \2\.
 (2020$).
Total First Year Energy Cost         $3.4 million.
 Savings (2020$).
Incremental First Cost (2020$).....  -$1.67/ft \2\.
Total Incremental First Cost         -$32.7 million.
 (2020$).
------------------------------------------------------------------------


      Table VII.5--Summary of Monetized Economic Benefits and Costs
                             [Billion 2020$]
                    [2022-2051 plus 30-year lifetime]
------------------------------------------------------------------------
                                                      Billion $2020
------------------------------------------------------------------------
                            3% discount rate
------------------------------------------------------------------------
Consumer Operating Cost Savings................                     1.86

[[Page 20290]]

 
Climate Benefits *.............................                     0.38
Health Benefits **.............................                     0.60
                                                ------------------------
    Total Benefits [dagger]....................                     2.84
Consumer Incremental Product Costs                                 -0.64
 [dagger][dagger]..............................
                                                ------------------------
    Net Benefits...............................                     3.48
------------------------------------------------------------------------
                            7% discount rate
------------------------------------------------------------------------
Consumer Operating Cost Savings................
Consumer Operating Cost Savings................                     0.65
Climate Benefits *.............................                     0.38
Health Benefits **.............................                     0.22
                                                ------------------------
    Total Benefits [dagger]....................                     1.25
Consumer Incremental Product Costs                                 -0.41
 [dagger][dagger]..............................
                                                ------------------------
    Net Benefits...............................                     1.66
------------------------------------------------------------------------
Note: This table presents the costs and benefits associated with Federal
  new commercial and multi-family high-rise buildings built in 2022-
  2051. These results include benefits to consumers which accrue after
  2051 from the buildings constructed in 2022-2051.
* Climate benefits are calculated using four different estimates of the
  social cost of carbon (SC-CO2), methane (SC-CH4), and nitrous oxide
  (SC-N2O) (model average at 2.5 percent, 3 percent, and 5 percent
  discount rates; 95th percentile at 3 percent discount rate). Together
  these represent the social cost of greenhouse gases (SC-GHG). For
  presentational purposes of this table, the climate benefits associated
  with the average SC-GHG at a 3 percent discount rate are shown, but
  the Department does not have a single central SC-GHG point estimate,
  and it emphasizes the importance and value of considering the benefits
  calculated using all four SC-GHG estimates. See section IV.B of this
  document for more details.
** Health benefits are calculated using benefit-per-ton values for NOX
  and SO2. DOE is currently only monetizing (for SO2 and NOX) PM2.5
  precursor health benefits and (for NOX) ozone precursor health
  benefits, but will continue to assess the ability to monetize other
  effects such as health benefits from reductions in direct PM2.5
  emissions. The health benefits are presented at real discount rates of
  3 and 7 percent. See section IV.B of this document for more details.
[dagger] Total and net benefits include consumer operating cost savings
  and benefits related to public health and climate. On March 16, 2022,
  the Fifth Circuit Court of Appeals (No. 22-30087) granted the federal
  government's emergency motion for stay pending appeal of the February
  11, 2022, preliminary injunction issued in Louisiana v. Biden, No. 21-
  cv-1074-JDC-KK (W.D. La.). As a result of the Fifth Circuit's order,
  the preliminary injunction is no longer in effect, pending resolution
  of the federal government's appeal of that injunction or a further
  court order. Among other things, the preliminary injunction enjoined
  the defendants in that case from ``adopting, employing, treating as
  binding, or relying upon'' the interim estimates of the social cost of
  greenhouse gases--which were issued by the Interagency Working Group
  on the Social Cost of Greenhouse Gases on February 26, 2021--to
  monetize the benefits of reducing greenhouse gas emissions. In the
  absence of further intervening court orders, DOE will revert to its
  approach prior to the injunction and present monetized benefits where
  appropriate and permissible under law.
[dagger][dagger] Costs include incremental equipment costs as well as
  installation costs.


                       Table VII.6--Annualized Monetized Benefits, Costs, and Net Benefits
                                                 [Million 2020$]
                                        [2022-2051 plus 30-year lifetime]
----------------------------------------------------------------------------------------------------------------
                                                                               Million 2020$/year
                           Category                            -------------------------------------------------
                                                                    3% Discount rate         7% Discount rate
----------------------------------------------------------------------------------------------------------------
Consumer Operating Cost Savings...............................                     94.9                     52.5
Climate Benefits *............................................                     19.1                     19.1
Health Benefits **............................................                     30.7                     18.1
                                                               -------------------------------------------------
    Total Benefits [dagger]...................................                    144.8                     89.7
Costs [dagger][dagger]........................................                    -32.7                    -32.7
                                                               -------------------------------------------------
    Net Benefits..............................................                    177.5                    122.4
----------------------------------------------------------------------------------------------------------------
Note: This table presents the costs and benefits associated with Federal new commercial and multi-family high-
  rise buildings built in 2022-2051. These results include benefits to consumers which accrue after 2051 from
  the buildings constructed in 2022-2051.
* Climate benefits are calculated using four different estimates of the social cost of carbon (SC-CO2), methane
  (SC-CH4), and nitrous oxide (SC-N2O) (model average at 2.5 percent, 3 percent, and 5 percent discount rates;
  95th percentile at 3 percent discount rate). Together these represent the social cost of greenhouse gases (SC-
  GHG). For presentational purposes of this table, the climate benefits associated with the average SC-GHG at a
  3 percent discount rate are shown but the Department does not have a single central SC-GHG point estimate, and
  it emphasizes the importance and value of considering the benefits calculated using all four SC-GHG estimates.
  See section IV.B of this document for more details.
** Health benefits are calculated using benefit-per-ton values for NOX and SO2. DOE is currently only monetizing
  (for SO2 and NOX) PM2.5 precursor health benefits and (for NOX) ozone precursor health benefits, but will
  continue to assess the ability to monetize other effects such as health benefits from reductions in direct
  PM2.5 emissions. The health benefits are presented at real discount rates of 3 and 7 percent. See section IV.B
  of this document for more details.

[[Page 20291]]

 
[dagger] Total and net benefits include consumer operating cost savings and benefits related to public health
  and climate. On March 16, 2022, the Fifth Circuit Court of Appeals (No. 22-30087) granted the federal
  government's emergency motion for stay pending appeal of the February 11, 2022, preliminary injunction issued
  in Louisiana v. Biden, No. 21-cv-1074-JDC-KK (W.D. La.). As a result of the Fifth Circuit's order, the
  preliminary injunction is no longer in effect, pending resolution of the federal government's appeal of that
  injunction or a further court order. Among other things, the preliminary injunction enjoined the defendants in
  that case from ``adopting, employing, treating as binding, or relying upon'' the interim estimates of the
  social cost of greenhouse gases--which were issued by the Interagency Working Group on the Social Cost of
  Greenhouse Gases on February 26, 2021--to monetize the benefits of reducing greenhouse gas emissions. In the
  absence of further intervening court orders, DOE will revert to its approach prior to the injunction and
  present monetized benefits where appropriate and permissible under law.
[dagger][dagger] Costs include incremental equipment costs as well as installation costs.

B. Review Under the Administrative Procedure Act

    This rule, which updates energy efficiency performance standards 
for the design and construction of new Federal buildings, is a rule 
relating to public property, and therefore is not subject to the 
rulemaking requirements of the Administrative Procedure Act, including 
the requirement to publish a notice of proposed rulemaking. (See 5 
U.S.C. 553(a)(2)) Additionally, DOE notes that the determinations 
regarding the increase in energy efficiency for commercial buildings 
using ASHRAE Standard 90.1-2016 and 90.1-2019 in the context of State 
building codes were subject to notice and comment. See 82 FR 34513 
(July 25, 2017) for the preliminary determination and 83 FR 8463 
(February 27, 2018) for the final determination on Standard 90.1-2016. 
See 86 FR 20674 (April 21, 2021) for the preliminary determination and 
86 FR 40543 (July 28, 2021) for the final determination on Standard 
90.1-2019. The determinations made in the context of the State codes 
are equally applicable in the context of Federal buildings. DOE finds 
that providing notice and comment again in the context of Federal 
buildings would therefore be unnecessary. (See 5 U.S.C. 553(b)(B)) The 
fact that the voluntary consensus codes apply to Federal buildings as 
opposed to the general building stock does not require a different 
evaluation of energy efficiency and cost-effectiveness.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. DOE has made its 
procedures and policies available on the Office of General Counsel's 
website (https://energy.gov/gc/office-general-counsel).
    As noted previously, DOE has determined that a notice of proposed 
rulemaking is not required by 5 U.S.C. 553 or any other law for 
issuance of this rule. As such, the analytical requirements of the 
Regulatory Flexibility Act do not apply. 5 U.S.C. 605(b).

D. Review Under the Paperwork Reduction Act of 1995

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

E. Review Under the National Environmental Policy Act of 1969

    DOE prepared an EA (DOE/EA-20165) entitled, ``Environmental 
Assessment for Final Rule, 10 CFR part 433, `Baseline Energy Efficiency 
Standards Update for New Federal Commercial and Multi-Family High-Rise 
Residential Buildings' '',\38\ pursuant to the Council on Environmental 
Quality's (CEQ's) 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).
---------------------------------------------------------------------------

    \38\ The EA and FONSI may be found in the docket for this 
rulemaking and at www.energy.gov/nepa/doeea-2165-energy-efficiency-standards-new-federal-commercial-and-multi-family-high-rise.
---------------------------------------------------------------------------

    The EA addresses the possible incremental environmental effects 
attributable to the application of the final rule. The only anticipated 
impact would be a decrease in outdoor air pollutants resulting from 
decreased fossil fuel burning for energy use in Federal buildings. 
Therefore, DOE has issued a Finding of No Significant Impact (FONSI), 
pursuant to NEPA, the regulations of the Council on Environmental 
Quality (40 CFR parts 1500-1508), and DOE's regulations for compliance 
with NEPA (10 CFR part 1021).
    To identify the potential environmental impacts that may result 
from implementing the final rule on new Federal commercial buildings, 
DOE compared the requirements of the final rule updating energy 
efficiency performance standard for Federal new commercial and multi-
family high rise residential buildings to ASHRAE Standard 90.1-2019 
with the ``no-action alternative'' of using the current Federal 
standards (ASHRAE Standard 90.1-2013). This comparison is identical to 
that undertaken by DOE in its determinations of energy savings of those 
standards and codes.
    Accordingly, DOE concludes in the EA that new Federal buildings 
designed and constructed to Standard 90.1-2019 will use less energy 
than new Federal buildings designed and constructed to Standard 90.1-
2013 because Standard 90.1-2019 is more efficient than Standard 90.1-
2013. This decrease in energy usage translates to reduced emissions of 
carbon dioxide (CO<INF>2</INF>), nitrogen oxides (NO<INF>X</INF>), 
mercury (Hg), and methane (CH<INF>4</INF>) over the 30-year period 
examined in the EA. As reported in the EA, cumulative emission 
reductions for 30 years of construction and operation for Federal 
buildings built during the analysis period (2022 through 2051) were 
estimated at up to 4.5 million metric tons of CO<INF>2</INF>, up to 6.9 
thousand tons of NO<INF>X</INF>, up to 0.01 tons of Hg, up to 33.5 
thousand tons of CH<INF>4</INF>, up to 1.6 thousand tons of 
SO<INF>2</INF>, and up to 0.04 thousand tons of N<INF>2</INF>O. In 
conducting the net benefits analysis, DOE also calculated the energy 
savings and associated emissions corresponding to the analysis period 
plus the lifetime of the building to capture the full benefits stream 
associated with Federal buildings constructed from 2022 through 2051. 
For 30 years of construction and operation including building lifetime, 
cumulative emission reductions were estimated at up to 8.4 million 
metric tons of CO<INF>2</INF>, up to 13.1 thousand tons of 
NO<INF>X</INF>, up to 0.02 tons of Hg, up to 64.5 thousand tons of 
CH<INF>4</INF>, up to 3.0 thousand tons of SO<INF>2</INF>, and up to 
0.08 thousand tons of N<INF>2</INF>O.

[[Page 20292]]

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

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

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

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

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and tribal governments and the 
private sector. For a proposed regulatory action likely to result in a 
rule that may cause the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more in any one year (adjusted annually for inflation), section 202 
of UMRA requires a Federal agency to publish a written statement that 
estimates the resulting costs, benefits, and other effects on the 
national economy. (2 U.S.C. 1532(a) and (b)) The UMRA also requires a 
Federal agency to develop an effective process to permit timely input 
by elected officers of State, local, and tribal governments on a 
proposed ``significant intergovernmental mandate'' and requires an 
agency plan for giving notice and opportunity for timely input to 
potentially affected small governments before establishing any 
requirements that might significantly or uniquely affect small 
governments. On March 18, 1997, DOE published a statement of policy on 
its process for intergovernmental consultation under UMRA. 62 FR 12820. 
DOE's policy statement is also available at https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf. This final rule contains 
neither an intergovernmental mandate nor a mandate that may result in 
the expenditure of $100 million or more in any year by State, local, 
and tribal governments, in the aggregate, or by the private sector, so 
these requirements under the Unfunded Mandates Reform Act do not apply.

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

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

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

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

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

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), 
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). 
Pursuant to OMB Memorandum M-19-15, Improving Implementation of the 
Information Quality Act (April 24, 2019), DOE published updated 
guidelines which are available at www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE 
has reviewed this final rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

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

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA) 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

[[Page 20293]]

(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. DOE's EIA estimates that new 
construction in the commercial sector will range from 1.91 billion 
square feet per year in 2022 to 2.52 billion square feet per year in 
2050.\39\ This rule is expected to incrementally reduce the energy 
usage of approximately 19.54 million square feet of Federal commercial 
and high-rise multi-family residential construction annually.\40\ Thus, 
the rule represents approximately 1.17 percent of the expected annual 
U.S. commercial construction in 2022, falling to approximately 0.89 
percent in the year 2050. This final rule would not have a significant 
adverse effect on the supply, distribution, or use of energy and, 
therefore, is not a significant energy action. Accordingly, DOE has not 
prepared a Statement of Energy Effects.
---------------------------------------------------------------------------

    \39\ See Table A5 of the 2021 Annual Energy Outlook at 
www.eia.gov/outlooks/aeo/excel/aeotab_5.xlsx.
    \40\ See Regulatory Analysis Section A. Review Under Executive 
Order 12866, ``Regulatory Planning and Review'' above for origin of 
the 25.85 million square foot estimate.
---------------------------------------------------------------------------

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

    Under section 301 of the Department of Energy Organization Act 
(Pub. L. 95-91), DOE must comply with section 32 of the Federal Energy 
Administration Act of 1974 (Pub. L. 93-275), as amended by the Federal 
Energy Administration Authorization Act of 1977 (Pub. L. 95-70). (15 
U.S.C. 788) Section 32 provides that where a proposed rule authorizes 
or requires use of commercial standards, the final rule must inform the 
public of the use and background of such standards. In addition, 
section 32(c) requires DOE to consult with the U.S. Department of 
Justice (DOJ) and the Federal Trade Commission (FTC) concerning the 
impact of the commercial or industry standards on competition.
    Although section 32 specifically refers to the proposed rule stage, 
DOE is meeting these requirements at the final rule stage because there 
was no proposed rule for this action. This final rule incorporates 
testing methods contained in the following commercial standard: ANSI/
ASHRAE/IES Standard 90.1-2019, Energy Standard for Buildings Except 
Low-Rise Residential Buildings, 2019, American Society of Heating 
Refrigerating and Air-Conditioning Engineers, Inc., ISSN 1041-2336.
    DOE has evaluated these standards and notes that ASHRAE Standard 
90.1 Standard is developed under ANSI-approved consensus procedures and 
is under continuous maintenance by a Standing Standard Project 
Committee. ASHRAE has established a program for regular publication of 
addenda, or revisions, including procedures for timely, documented, 
consensus action on requested changes to ASHRAE Standard 90.1. ANSI 
approved the final addendum for inclusion in the 2016 edition in August 
2016 and in the 2019 edition in October 2019. Standard 90.1-2016 was 
published in October 2016 and Standard 90.1-2019 was published in 
October 2019. However, DOE is unable to conclude whether ASHRAE 
Standard 90.1 fully complies with the requirements of section 32(b) of 
the Federal Energy Administration Act (FEAA) (i.e., whether they were 
developed in a manner that fully provides for public participation, 
comment, and review). DOE has consulted with both the Attorney General 
and the Chairman of the FTC about the impact on competition of using 
the methods contained in these standards and has received no comments 
objecting to their use.

N. Description of Materials Incorporated by Reference

    In this final rule, DOE incorporates by reference ANSI/ASHRAE/IES 
Standard 90.1-2019, Energy Standard for Buildings Except Low-Rise 
Residential Buildings, (I-P Edition), 2019. This standard provides 
minimum requirements for energy efficient designs for buildings except 
for low-rise residential buildings. Copies of this standard are 
available from ASHRAE, Inc., 180 Technology Parkway NW, Peachtree 
Corners, GA 30092, (404) 636-8400, www.ashrae.org. ASHRAE provides a 
free, online, read-only version of Standard 90.1-2019 available at 
www.ashrae.org/technical-resources/standards-and-guidelines. Users must 
scroll down to locate and click on Standard 90.1-2019 (IP).
    The Director of the Federal Register previously approved ANSI/
ASHRAE/IES 90.1-2004, 2007, 2010, and 2013, Energy Standard for 
Buildings Except Low-Rise Residential Buildings for incorporation by 
reference in 10 CFR part 433.

VIII. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is a ``major rule'' as 
defined by 5 U.S.C. 804(2).

IX. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule.

List of Subjects in 10 CFR Part 433

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

Signing Authority

    This document of the DOE was signed on March 28, 2022, by Kelly J. 
Speakes-Backman, Principal Deputy Assistant Secretary for Energy 
Efficiency and Renewable Energy, pursuant to delegated authority from 
the Secretary of Energy. That document with the original signature and 
date is maintained by DOE. For administrative purposes only, and in 
compliance with requirements of the Office of the Federal Register, the 
undersigned DOE Federal Register Liaison Officer has been authorized to 
sign and submit the document in electronic format for publication, as 
an official document of DOE. This administrative process in no way 
alters the legal effect of this document upon publication in the 
Federal Register.

    Signed in Washington, DC, on March 29, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

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

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

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

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


0
2. Amend Sec.  433.2 by:
0
a. In the definition of ``ASHRAE Baseline Building 2004'', removing the 
text ``ANSI/ASHRAE/IES Standard 90.1-2004, Energy Standard for 
Buildings Except Low-Rise Residential Buildings, January 2004'' and 
adding, in

[[Page 20294]]

its place, the text, ``ASHRAE 90.1-2004'';
0
b. In the definition of ``ASHRAE Baseline Building 2007'', removing the 
text ``ANSI/ASHRAE/IES Standard 90.1-2007, Energy Standard for 
Buildings Except Low-Rise Residential Buildings, December 2007'' and 
adding, in its place, the text, ``ASHRAE 90.1-2007'';
0
c. In the definition of ``ASHRAE Baseline Building 2010'', removing the 
text ``ANSI/ASHRAE/IES Standard 90.1-2010, Energy Standard for 
Buildings Except Low-Rise Residential Buildings, 2010'' and adding, in 
its place, the text, ``ASHRAE 90.1-2010'';
0
d. In the definition of ``ASHRAE Baseline Building 2013'', removing the 
text ``ANSI/ASHRAE/IES Standard 90.1-2013, Energy Standard for 
Buildings Except Low-Rise Residential Buildings, 2013'' and adding, in 
its place, the text, ``ASHRAE 90.1-2013'';
0
e. Adding in alphabetical order the definition of ``ASHRAE Baseline 
Building 2019''; and
0
f. Revising the definition of ``New Federal building''.
    The addition and revision read as follows:


Sec.  433.2  Definitions.

* * * * *
    ASHRAE Baseline Building 2019 means a building that is otherwise 
identical to the proposed building but is designed to meet, but not 
exceed, the energy efficiency specifications in ASHRAE 90.1-2019 
(incorporated by reference, see Sec.  433.3).
* * * * *
    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 new buildings (including a complete replacement of an existing 
building from the foundation up) built for the purpose of being leased 
by a Federal agency, and privatized military housing.
* * * * *

0
3. Amend Sec.  433.3 by:
0
a. Revising paragraph (a) and the introductory text of paragraph (b); 
and
0
b. Adding paragraph (b)(5).
    The revision and addition read as follows:


Sec.  433.3  Materials incorporated by reference.

    (a) Certain material is incorporated by reference into this subpart 
with the approval of the Director of the Federal Register in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other 
than that specified in this section, DOE must publish a document in the 
Federal Register and the material must be available to the public. All 
approved material is available for inspection at DOE, and at the 
National Archives and Records Administration (NARA). Contact DOE at: 
The U.S. Department of Energy, Office of Energy Efficiency and 
Renewable Energy, Building Technologies Program, Sixth Floor, 950 
L'Enfant Plaza SW, Washington, DC 20024, (202) 586-9127, 
<a href="/cdn-cgi/l/email-protection#c98bbca0a5ada0a7aeba89acace7ada6ace7aea6bf"><span class="__cf_email__" data-cfemail="9edcebf7f2faf7f0f9eddefbfbb0faf1fbb0f9f1e8">[email protected]</span></a>, https://www.energy.gov/eere/buildings/building-technologies-office. For information on the availability of this 
material at NARA, email: <a href="/cdn-cgi/l/email-protection#4c2a3e6225223f3c292f382523220c222d3e2d622b233a"><span class="__cf_email__" data-cfemail="a6c0d488cfc8d5d6c3c5d2cfc9c8e6c8c7d4c788c1c9d0">[email protected]</span></a>, or go to: 
www.archives.gov/federal-register/cfr/ibr-locations.html. The material 
may be obtained from the sources in the following paragraphs of this 
section.
    (b) ASHRAE. American Society of Heating Refrigerating and Air-
Conditioning Engineers, Inc., 180 Technology Parkway NW, Peachtree 
Corners, GA 30092; (404) 636-8400; www.ashrae.org.
* * * * *
    (5) ANSI/ASHRAE/IES 90.1-2019, (``ASHRAE 90.1-2019''), Energy 
Standard for Buildings Except Low-Rise Residential Buildings, I-P 
Edition, copyright 2019, IBR approved for Sec. Sec.  433.2, 433.100 and 
433.101.

0
4. Amend Sec.  433.100 by:
0
a. Revising paragraph (a)(4) and adding paragraph (a)(5);
0
b. Removing paragraph (b);
0
c. Redesignating paragraph (c) as (b); and
0
d. Revising newly redesignated paragraph (b).
    The revisions and addition read as follows:


Sec.  433.100  Energy efficiency performance standard.

    (a) * * *
    (4) All Federal agencies shall design new Federal buildings that 
are commercial and multi-family high-rise residential buildings, for 
which design for construction began on or after November 6, 2016, but 
before April 7, 2023, to:
    (i) Meet ASHRAE 90.1-2013, (incorporated by reference, see Sec.  
433.3); and
    (ii) If LCC effective, achieve energy consumption levels, 
calculated consistent with paragraph (b) of this section, that are at 
least 30 percent below the levels of the ASHRAE Baseline Building 2013.
    (5) All Federal agencies shall design new Federal buildings that 
are commercial and multi-family high-rise residential buildings, for 
which design for construction began on or after April 7, 2023, to:
    (i) Meet ASHRAE 90.1-2019, (incorporated by reference, see Sec.  
433.3); and
    (ii) If LCC effective, achieve energy consumption levels, 
calculated consistent with paragraph (b) of this section, that are at 
least 30 percent below the levels of the ASHRAE Baseline Building 2019.
    (b) If a 30 percent reduction is not LCC effective, the design of 
the proposed building shall be modified so as to achieve an energy 
consumption level at or better than the maximum level of energy 
efficiency that is LCC effective, but at a minimum complies with 
paragraph (a) of this section.

0
5. Amend Sec.  433.101 by:
0
a. Revising paragraph (a)(4) and adding paragraph (a)(5); and
0
b. Revising paragraph (b).
    The revisions and addition read as follows:


Sec.  433.101  Performance level determination.

    (a) * * *
    (4) For Federal buildings for which design for construction began 
on or after November 6, 2016, but before April 7, 2023, each Federal 
agency shall determine energy consumption levels for both the ASHRAE 
Baseline Building 2013 and proposed building by using the Performance 
Rating Method found in Appendix G of ASHRAE 90.1-2013 (incorporated by 
reference, see Sec.  433.3), except the formula for calculating the 
Performance Rating in Section G1.2 shall read as follows:
    (i) Percentage improvement = 100 x ((Baseline building consumption-
Receptacle and process loads)-(Proposed building consumption-Receptacle 
and process loads))/(Baseline building consumption-Receptacle and 
process loads) (which simplifies as follows):
    (ii) Percentage improvement = 100 x (Baseline building consumption-
Proposed building consumption)/(Baseline building consumption-
Receptacle and process loads).
    (5) For Federal buildings for which design for construction began 
on or after April 7, 2023, each Federal agency shall determine energy 
consumption levels for both the ASHRAE Baseline Building 2019 and 
proposed building by using the Performance Rating Method found in 
Appendix G of ASHRAE 90.1-2019 (incorporated by reference, see Sec.  
433.3). The formula for determining the percentage improvement shall be 
as follows:


[[Page 20295]]


Percentage Improvement = 100 x (1-PCI/PCIt)

Where

PCI = Performance Cost Index calculated in accordance with Section 
G1.2 of ASHRAE Standard 90.1-2019
PCIt = Performance Cost Index Target calculated by formula in 
Section 4.2.1.1 of ASHRAE Standard 90.1-2019

    (b) Energy consumption for the purposes of calculating the 30 
percent savings requirements shall include the building envelope and 
energy consuming systems normally specified as part of the building 
design by ASHRAE Standard 90.1 such as space heating, space cooling, 
ventilation, service water heating, and lighting, and all process and 
receptacle loads, except for energy-intensive process loads that are 
driven by mission and operational requirements, not necessarily 
buildings, and not influenced by conventional building energy 
conservation measures.

[FR Doc. 2022-06949 Filed 4-6-22; 8:45 am]
BILLING CODE 6450-01-P


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