61694 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

DEPARTMENT OF ENERGY 

10 CFR Parts 433 and 435 

[Docket No. EERE–2010–BT–STD–0031] 

RIN 1904–AB96 

Fossil Fuel-Generated Energy 

Consumption Reduction for New 

Federal Buildings and Major 

Renovations of Federal Buildings 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Supplemental notice of 

proposed rulemaking. 

SUMMARY: The Energy Conservation and 

Production Act (ECPA), as amended by 

the Energy Independence and Security 

Act of 2007, requires DOE to establish 

revised performance standards for the 

construction of new Federal buildings, 

including commercial buildings, multifamily high-rise residential buildings 

and low-rise residential buildings. On 

October 15, 2010, DOE issued a Notice 

of Proposed Rulemaking (NOPR) to 

establish regulations implementing the 

fossil fuel-generated energy provisions 

of the ECPA performance standards for 

Federal buildings. In response to the 

NOPR, DOE received a number of 

comments expressing concern and 

encouraging DOE to re-examine the 

proposed regulations. In response to 

these comments, DOE has identified 

additional areas for clarification and 

consideration that would benefit from 

further public comment. In this 

supplemental notice of proposed 

rulemaking (SNOPR), DOE responds to 

the comments received on the NOPR 

and identifies and seeks comment on 

additional approaches to the scope of 

the requirements in the context of major 

renovations, the potential use of 

renewable energy certificates for 

compliance, and a streamlined process 

for agencies to seek a downward 

adjustment from the required reduction 

levels, particularly for major 

renovations. 

DATES: Public comments on this 

supplemental proposed rule will be 

accepted until December 15, 2014. 

ADDRESSES: This rulemaking can be 

identified by docket number EERE– 

2010–BT–STD–0031 and/or RIN number 

1904–AB96. 

Docket: The docket is available for 

review at http://www.regulations.gov 

including Federal Register Notices, 

public meeting attendee lists, 

transcripts, comments and other 

supporting documents/materials. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

You may submit comments, identified 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: FossilFuelReduct-2010-STD0031@ee.doe.gov. Include EERE–2010– 

BT–STD–0031 and/or RIN 1904–AB96 

in the subject line of the message. 

• Postal Mail: Ms. Brenda Edwards, 

U.S. Department of Energy, Building 

Technologies Program, Mailstop EE–2J, 

Fossil Fuel-Generated Energy 

Consumption Reduction for New 

Federal Buildings and Major 

Renovations of Federal Buildings, 

EERE–2010–BT–STD–0031 and/or RIN 

1904–AB96, 1000 Independence 

Avenue SW., Washington, DC 20585– 

0121. Telephone: (202) 586–9138. 

Please submit one signed paper original. 

Due to the potential delays in DOE’s 

receipt and processing of mail sent 

through the U.S. Postal Service, DOE 

encourages respondents to submit 

comments electronically to ensure 

timely receipt. 

• Hand Delivery/Courier: Brenda 

Edwards, U.S. Department of Energy, 

Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Information 

Number (RIN) for this rulemaking. 

Docket: For access to the docket to 

read background documents or 

comments received by DOE, go to the 

U.S. Department of Energy, Forrestal 

Building, Room 5E–080 (Resource Room 

of the Federal Energy Management 

Program), 1000 Independence Avenue 

SW., Washington, DC, (202) 586–9127, 

between 9 a.m. and 4 p.m., Monday 

through Friday, except Federal holidays. 

Please call Brenda Edwards at (202) 

586–2945 for additional information 

regarding visiting the Resource Room. 

FOR FURTHER INFORMATION CONTACT: For 

technical issues, contact Sarah Jensen, 

U.S. Department of Energy, Office of 

Energy Efficiency and Renewable 

Energy, Building Technologies Program, 

EE–5F, 1000 Independence Avenue 

SW., Washington, DC 20585–0121, (202) 

287–6033, email: Sarah.Jensen@

ee.doe.gov. For legal issues, contact Ami 

Grace-Tardy, U.S. Department of 

Energy, Office of the General Counsel, 

Forrestal Building, GC–71, 1000 

Independence Avenue SW., 

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

email: Ami.Grace-Tardy@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

A. Authority 

B. Background 

II. Summary of the Proposed Rule 

III. General Discussion and Response to 

Comments 

A. Overview 

B. Scope and Applicability of the Proposed 

Rule 

1. Determining the $2.5 Million Threshold 

for Applicability of the Rule 

2. Compliance Date of the Rule 

3. Major Renovations 

4. Multiple Buildings 

5. Leased Buildings 

6. Federal Buildings Overseas 

7. Residential Buildings 

8. Privatized Military Housing 

9. Other 

C. Establishing and using the Baseline 

1. CBECS and RECS Baselines 

2. Climate Adjustment 

3. Plug and Process Loads 

4. Differentiate Between Fossil Fuels 

5. Regional Fossil Fuel Factors 

6. Marginal Source of Electricity 

7. Residential Common Areas 

8. Major Renovations 

9. Other 

D. Methodology to Determine Compliance 

1. Whole Building Simulation 

2. Off-Site and On-Site Renewable Energy 

and Renewable Energy Certificates 

3. Use of Source Energy 

4. Fuel Conversion Efficiency 

5. On-Site Energy Generation From Natural 

Gas 

6. Additional Review 

7. Other 

E. Petitions for Downward Adjustment 

1. Technical Impracticability and Cost as a 

Basis for Downward Adjustment 

2. Bundling of Petitions 

3. DOE Review Process 

4. Information Required in Petitions for 

New Construction 

5. Downward Adjustments for Major 

Renovations 

6. Make Information Publicly Available 

7. Narrow the Use of Petitions 

8. GSA Tenant Agencies 

9. Other 

F. Impacts of the Rule 

1. Cost Impacts 

2. Other Impacts 

G. Guidance and Other Topics 

1. Training 

2. Verification and Monitoring 

IV. Reference Resources 

V. Procedural Issues and Regulatory Review 

I. Introduction 

A. Authority 

Section 305 of the Energy 

Conservation and Production Act 

(ECPA) established energy conservation 

requirements for Federal buildings. (42 

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

Energy Independence and Security Act 

of 2007 (Pub. L. 110–140) (EISA 2007) 

amended section 305 of ECPA and 

directed DOE to establish regulations 

that require fossil fuel-generated energy 

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Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 61695 

1Under 40 U.S.C. 3301(5), ‘‘public building’’ is a 

building, whether for single or multitenant 

occupancy, and its grounds, approaches, and 

appurtenances, which is generally suitable for use 

as office or storage space or both by one or more 

Federal agencies or mixed-ownership Government 

corporations. 

‘‘Public building’’ includes Federal office 

buildings, post offices, customhouses, courthouses, 

appraisers stores, border inspection facilities, 

warehouses, record centers, relocation facilities, 

telecommuting centers, similar Federal facilities, 

and any other buildings or construction projects the 

inclusion of which the President considers to be 

justified in the public interest. 

The definition does not include a building or 

construction project that is on the public domain 

(including that reserved for national forests and 

other purposes); that is on property of the 

Government in foreign countries; that is on Indian 

and native Eskimo property held in trust by the 

Government; that is on land used in connection 

with Federal programs for agricultural, recreational, 

and conservation purposes, including research in 

connection with the programs; that is on or used in 

connection with river, harbor, flood control, 

reclamation or power projects, for chemical 

manufacturing or development projects, or for 

nuclear production, research, or development 

projects; that is on or used in connection with 

housing and residential projects; that is on military 

installations (including any fort, camp, post, naval 

training station, airfield, proving ground, military 

supply depot, military school, or any similar facility 

of the Department of Defense); that is on 

installations of the Department of Veterans Affairs 

used for hospital or domiciliary purposes; or the 

exclusion of which the President considers to be 

justified in the public interest. 

2 40 U.S.C. 3307 describes the minimum 

construction, alteration and lease costs that would 

trigger a prospectus to Congress. 

3Complete contents of the docket folder may be 

found at http://www.regulations.gov/#!docketDetail;

D=EERE-2010-BT-STD-0031. 

consumption reductions for certain new 

Federal buildings and Federal buildings 

undergoing major renovations. (42 

U.S.C. 6834(a)(3)(D)(i)) The fossil-fuel 

generated energy consumption 

reductions only apply to Federal 

buildings that: (1) Are ‘‘public 

buildings’’ (as defined in 40 U.S.C. 

3301) 1 with respect to which the 

Administrator of General Services is 

required to transmit a prospectus to 

Congress under 40 U.S.C. 3307;2 or (2) 

those that cost at least $2,500,000 in 

costs adjusted annually for inflation. (42 

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

For these buildings, Section 305 of 

ECPA, as amended by EISA 2007, 

mandates that the buildings be designed 

so that a building’s fossil fuel-generated 

energy consumption is reduced as 

compared with such energy 

consumption by a similar building in 

fiscal year 2003 (as measured by 

Commercial Buildings Energy 

Consumption Survey or Residential 

Energy Consumption Survey data from 

the DOE’s Energy Information 

Administration) by 55 percent 

beginning in fiscal year 2010, 65 percent 

beginning in fiscal year 2015, 80 percent 

beginning in fiscal year 2020, 90 percent 

beginning in fiscal year 2025, and 100 

percent beginning in fiscal year 2030. 

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

In addition, upon petition by an 

agency subject to the statutory 

requirements, ECPA, as amended by 

EISA 2007, permits DOE to adjust the 

applicable numeric reduction 

requirement downward with respect to 

a specific building, if the head of the 

agency designing the building certifies 

in writing that meeting such 

requirement would be technically 

impracticable in light of the agency’s 

specified functional needs for that 

building and DOE concurs with the 

agency’s conclusion. (42 U.S.C. 

6834(a)(3)(D)(i)(II)) Such an adjustment 

does not apply to GSA. (42 U.S.C. 

6834(a)(3)(D)(i)(II)) (In the remainder of 

today’s rulemaking, all references to 

ECPA refer to the statute as amended 

through EISA 2007.) 

B. Background 

This supplemental notice of proposed 

rulemaking amends certain portions of 

10 CFR parts 433 and 435, the 

regulations governing energy efficiency 

in Federal buildings. The Notice of 

Proposed Rulemaking (NOPR) was 

published on October 15, 2010. 75 FR 

63404. The public meeting was held on 

November 12, 2010, and public 

comments were accepted through 

December 14, 2010. DOE received a 

number of comments expressing 

concern and encouraging DOE to reexamine the proposed regulations.3 In 

response to these comments, DOE has 

identified additional areas for 

clarification and consideration that 

would benefit from further public 

comment. In this SNOPR, DOE responds 

to the comments received on the NOPR 

and identifies and seeks comment on 

additional approaches to the scope of 

the requirements in the context of major 

renovations, the potential use of 

renewable energy certificates for 

compliance, and a more streamlined 

process for agencies to seek a downward 

adjustment from the reduction levels. 

DOE is in the process of addressing 

other requirements for Federal buildings 

mandated in ECPA, as amended by 

section 433 of EISA. DOE published a 

proposed rule on sustainable design 

standards for new Federal buildings and 

major renovations on May 28, 2010 (75 

FR 29933) (the ‘‘Sustainable Design 

NOPR’’), which also proposed to amend 

certain portions of 10 CFR parts 433 and 

435. (Docket No. EE–RM/STD–02–112, 

RIN 1904–AC13) Elsewhere in this issue 

of the Federal Register, the green 

building certification portion of the 

Sustainable Design NOPR is published 

as a final rule. 

DOE received a number of comments 

on the scope of the EISA 2007 

amendments both in the context of this 

rulemaking and in response to the 

Sustainable Design NOPR. DOE 

addresses both sets of comments in 

today’s rulemaking. 

II. Summary of the Proposed Rule 

This SNOPR addresses requirements 

for new construction and major 

renovations of Federal commercial and 

high-rise residential buildings, as well 

as Federal low-rise residential 

buildings. The following is an overview 

of each section of today’s SNOPR, 

including any relevant changes from the 

proposal as provided in the October 15, 

2010 NOPR. (75 FR 63404; ‘‘2010 

Proposed Rule’’) 

A. Regulatory Scheme 

In this SNOPR, DOE is proposing to 

address the contents of Subpart B of 

both 10 CFR parts 433 and 435—the 

fossil fuel-generated energy 

consumption requirements. 

In addition, this rule proposes to 

amend the term ‘‘life-cycle costeffective’’ to tie the definition of lifecycle cost-effectiveness closer to the 

four life cycle cost methodologies set 

out in subpart A of 10 CFR part 436. 

B. Overall Basis for the Rulemaking 

The underlying requirements for this 

rulemaking are based on the 

requirements in Section 433 of EISA 

2007. The statute requires that covered 

Federal buildings be designed so that 

the fossil fuel-generated energy 

consumption of the buildings is 

reduced, as compared with such energy 

consumption by a similar building in 

fiscal year 2003 (as measured by 

Commercial Buildings Energy 

Consumption Survey or Residential 

Energy Consumption Survey data from 

DOE’s Energy Information 

Administration), by the percentage 

specified in the following table: 

FISCAL YEAR PERCENTAGE REDUCTION

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

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

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

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

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

As discussed later in this document, 

DOE believes that the current energy 

efficiency requirements applicable to 

the design of new Federal buildings, 

when compared to the energy efficiency 

of the baseline buildings, would result 

in a substantial level of compliance with 

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61696 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

4The CBECS principle building types and 

subcategories are described at http://www.eia.gov/

consumption/commercial/building-typedefinitions.cfm. This rulemaking is based on the 

subcategories shown in this link. 

5The fossil fuel generation factor of 0.71 is 

derived from Table 3.2.A of the Energy Information 

Administration (EIA) 2012 Electric Power Annual 

Report (http://www.eia.gov/electricity/annual/html/ 

epa_03_02_a.html). Specifically, the number is 

developed by summing the annual electricity 

produced by coal, petroleum liquids, petroleum 

coke, natural gas, and other gas and then dividing 

the sum by the total electricity produced. 0.71 is the 

value of this factor in 2003 and in 2012, but the 

value has changed over time and is expected to vary 

in the future as new sources of renewable energy 

come online. 

6http://energy.gov/eere/femp/federal-energymanagement-program. 

the 55 percent and 65 percent reduction 

levels. 

C. Covered Buildings 

The proposed rule would apply to 

certain new Federal buildings, and 

major renovations to Federal buildings, 

as specified in section 433 of EISA 2007. 

By statute, the term ‘‘Federal building’’ 

means any building to be constructed 

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

including buildings built for the 

purpose of being leased by a Federal 

agency, and privatized military housing. 

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

This proposed rule only would apply 

to new Federal buildings and major 

renovations to Federal buildings 

covered by EISA 2007. Federal 

buildings covered by EISA 2007 include 

new Federal buildings, or major 

renovations to Federal buildings, that 

are also: (1) Public buildings, as defined 

in 40 U.S.C. 3301 for which a 

transmittal of a prospectus to Congress 

is required under 40 U.S.C. 3307; or (2) 

Federal buildings for which the 

construction cost or major renovation 

cost is at least $2,500,000 (2007 dollars, 

adjusted for inflation). This subset of 

buildings and major renovations will be 

referred to as EISA-covered buildings in 

this SNOPR. 

D. Definitions 

This rulemaking contains definitions 

for ‘‘combined heat and power (CHP) 

system,’’ ‘‘district energy system,’’ 

‘‘fiscal year,’’ ‘‘major renovation,’’ 

‘‘power purchase agreement (PPA),’’ 

‘‘proposed building,’’ and ‘‘renewable 

energy certificate.’’ 

This rulemaking also proposes to 

define 16 categories of commercial 

buildings and one category of multifamily high-rise residential buildings in 

10 CFR part 433 and one category of 

low-rise residential buildings in 10 CFR 

part 435. The 16 categories of 

commercial buildings proposed are 

education, food sales, food service, 

health care (inpatient), health care 

(outpatient), laboratory, lodging, 

mercantile (enclosed and strip shopping 

malls), office, public assembly, public 

order and safety, religious worship, 

retail (other than mall), service, and 

warehouse and storage. Many of these 

commercial building categories are 

further divided into building types. The 

single category of low-rise residential 

buildings is divided into five building/ 

activity types: manufactured homes, 

multi-family in 2–4 unit buildings, 

multi-family in 5 or more unit 

buildings, single-family attached, and 

single-family detached. These building 

categories and building types represent 

the high-level principal building 

activity and low-level principle building 

activity categories in the 2003 

Commercial Building Energy 

Consumption Survey (CBECS).4

E. Fossil Fuel-Generated Energy 

Consumption Requirements 

For buildings for which design for 

construction begins in the fiscal years 

2013 to 2029, tables of the proposed 

maximum allowable fossil fuelgenerated energy consumption by 

building type and climate zone are 

provided. The proposed values in the 

tables come from DOE’s Energy 

Information Administration (EIA) 

CBECS (for commercial buildings) and 

RECS (for multi-family high-rise and 

low-rise residential buildings), both of 

which are converted from site energy 

consumption to source energy 

consumption. The building types in the 

tables in Appendix A to this proposed 

rule are subsets of the building 

categories discussed above. 

The CBECS and RECS data was 

parsed into the 16 climate zones used in 

the current Federal baseline standards 

for commercial and multi-family highrise residential buildings, which rely on 

ANSI/ASHRAE/IESNA Standard 90.1. 

For buildings that combine two or 

more building types, area-weighted 

averaging by square footage for each 

building type would be used to 

calculate the maximum allowable fossil 

fuel-generated energy consumption of 

the combined building. For building 

types dominated by process loads, as 

defined in 10 CFR 433.2, and that are 

not listed in CBECS, the regulations 

would require the use of the CBECS 

building type that most closely matches 

the building without the process load 

and then accounting for the process load 

in the calculation. For these buildings, 

process loads would be accounted for, 

but are not subject to the percentage 

reductions in fossil fuel-generated 

energy consumption required for the 

building related loads. 

For major renovations that are less 

than whole building renovations 

(system or component level retrofits) 

DOE is proposing that the maximum 

allowable fossil fuel-generated energy 

consumption in fiscal years 2013 

through 2029 be based on a percentage 

of the whole building energy 

consumption represented by the 

renovated system or component. 

For buildings for which design for 

construction begins in fiscal year 2030 

or beyond, the fossil fuel-generated 

energy consumption of the building 

would be required to be zero for all 

building types and climate zones, based 

on the calculation established in the 

regulations. 

F. Fossil Fuel-Generated Energy 

Consumption Determination 

To determine compliance with the 

fossil fuel reductions, agencies would be 

required to estimate the fossil fuelgenerated energy consumption of their 

proposed building design and compare 

that estimate to the allowable fiscal year 

percentage reduction target. DOE has 

proposed a calculation to make this 

estimated fossil fuel-generated energy 

consumption for the proposed building. 

Fundamentally, the calculation would 

add the fossil fuel component of the 

electricity used by the building to the 

direct fossil fuels used by the building. 

To calculate the fossil fuel component 

of the electricity used by the building, 

agencies would be required to first 

estimate the amount of electricity used 

by the building in accordance with the 

Performance Rating Method in 

Appendix G of ASHRAE Standard 90.1– 

2010. Any electricity produced from a 

renewable energy or CHP system would 

not count towards the site electricity 

consumption in the baseline or the 

current calculated level. This figure 

would then be multiplied by the fossil 

fuel generation factor (calculated at 0.71 

for the 2003 base year and also for 2012, 

the latest year of data available from 

EIA) to account for the percentage of 

electricity in the U.S. that is generated 

from fossil fuel.5 FEMP will publish 

updates to the fossil fuel generation 

factor annually on the FEMP Web site 6

so that agencies can use the most recent 

value in their calculations. The adjusted 

site electricity estimate would then be 

converted to source electricity by 

dividing it by the national average 

electricity source energy factor of 0.316 

to account for fuel conversion and 

transmission and distribution losses. To 

this would be added the direct fossil 

fuel consumption for fuels other than 

electricity, adjusted for distribution and 

other losses that occur between delivery 

to the fuel provider and final delivery to 

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Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 61697 

the site with the other fuels source 

energy multiplier. The other fuels 

energy source multiplier would not 

include losses associated with the 

production, harvesting, refining, or 

transportation of bulk fuels. The result 

would then be divided by the floor area 

of the building and converted to 

thousands of British thermal units per 

square foot (kBtu/sq.ft.). 

For major renovations that are less 

than whole building renovations 

(system or component level retrofits) 

DOE proposes to base the subject fossil 

fuel-generated energy consumption on 

the system or component as retrofitted. 

Electricity produced from renewable 

energy would qualify as a deduction to 

the extent that it represents new electric 

generating capacity or a new renewable 

energy obligation on the part of the 

agency, and not a reassignment of 

existing capacity or obligations. The 

regulations would establish criteria for 

on-site renewable electricity generation 

and off-site renewable electricity 

generation (including generation 

represented by Renewable Energy 

Certificates) to help clarify these terms 

and the limits on how this generation 

may be used as a deduction from the 

proposed building electricity 

consumption. DOE has also proposed a 

clarification as to how electricity 

associated with district heating or 

cooling systems, district chilled water, 

and CHP systems would be treated. 

G. Petitions for Downward Adjustment 

Under the provision of Section 433 of 

EISA 2007 and as proposed, agencies 

other than GSA (but including GSAtenant agencies with significant control 

over building design) would be able to 

petition DOE for an adjustment to the 

fossil fuel requirement with respect to a 

specific building if meeting the 

requirement is technically impracticable 

in light of the agency’s functional needs 

for the building. This proposed rule 

provides a list of what information 

would be required to be included in a 

petition for a downward adjust for a 

new building. This includes a 

description of the building and 

associated components and equipment, 

an explanation of why compliance with 

the requirements is technically 

impracticable in light of the functional 

needs of the building, a demonstration 

that all cost-effective energy efficiency 

and on-site renewable energy measures 

were included in the building design, 

and a description of measures that were 

evaluated but rejected. As proposed, the 

Director of the Federal Energy 

Management Program would review the 

petition and make a decision on the 

petition within 90 days of submittal. 

Additionally, this rulemaking 

proposes separate, streamlined 

downward adjustment processes for 

major renovations that are whole 

building renovations and for major 

renovations that are system or 

component level retrofits. The 

streamlined processes recognize the 

constraints on compliance inherent with 

major renovations, e.g., building site 

and orientation cannot be changed and 

configuration of the building shell is 

likely difficult, if not technically 

impracticable, to adjust. Under DOE’s 

proposal, upon application, a Federal 

agency with a major renovation that is 

a whole building renovation would 

receive a downward adjustment equal to 

the energy efficiency level that would be 

required under the Federal building 

energy efficiency standards were the 

building a new building (i.e., the 

ASHRAE 90.1 and IECC requirements 

applicable to commercial and 

residential new Federal buildings, 

respectively). Upon application, a major 

renovation that is limited to a system or 

component level retrofit would receive 

a downward adjustment equal to the 

energy efficiency level that would be 

achieved through the use of products 

that represent a level of energy 

efficiency that is life-cycle cost-effective 

if such products are commercially 

available. This would be demonstrated 

through the use of ENERGY STAR or 

FEMP-designated products, or products 

that meet the applicable prescriptive 

requirements under ASHRAE 90.1 or 

the IECC. 

H. Summary of the Differences Between 

the 2010 Proposed Rule and This 

Proposed Rule 

In this proposed rule, the Department 

makes a number of substantial changes 

from the 2010 proposed rule. The 

changes apply to both 10 CFR part 433 

and 10 CFR part 435 unless otherwise 

noted. Details of these changes with a 

discussion of each are described in 

Section III. This proposed rule would: 

• Add definitions for combined heat 

and power (CHP) system, proposed 

building, proposed building site 

electricity consumption, direct fossil 

fuel consumption of proposed building, 

district energy system, electricity source 

energy factor, fiscal year, floor area, 

fossil fuel generation factor, other fuels 

source energy multiplier, power 

purchase agreement (PPA), renewable 

energy certificates and renewable energy 

and CHP electricity deduction. 

• Delete definitions for fossil fuel, 

fossil fuel consumption for electricity 

generation, and primary electrical 

energy consumption. 

• Amend definitions for direct fossil 

fuel consumption, district energy 

system, electricity source energy factor, 

fossil fuel generation factor, and major 

renovation. 

• Clarify applicability of the rule to 

major renovations. 

• Clarify applicability of the rule to 

leased facilities. 

• Replace the proposed maximum 

allowable fossil fuel-generated energy 

consumption tables with new tables 

adjusted for each of DOE’s 16 climate 

zones and covering additional 

commercial building types. 

• Consider an approach to determine 

required fossil fuel-generated energy 

consumption levels for major 

renovations that are limited to system or 

component level retrofits. 

• Delete the Performance Rating 

Method in Appendix G of ASHRAE 

Standard 90–1.2004 and the IECC 

Simulated Performance Alternative as 

the means to calculate a baseline for 

building types not listed in the 

Commercial Buildings Energy 

Consumption Survey (CBECS) and the 

Residential Energy Consumption Survey 

(RECS), respectively. The expansion of 

building types would eliminate the need 

to develop alternative baselines. 

• Include an alternative compliance 

method for buildings with process loads 

that are not included in CBECS and 

RECS. Clarifies that process loads of 

building types not included in CBECS 

are not subject to the fossil fuel 

reductions. 

• Clarify performance level 

determination. Modify the calculation 

methodology and specify the electricity 

source factor and the fossil fuel 

generation factor to be used. Add a 

source energy multiplier for other fuels. 

• Specify what qualifies as a 

renewable energy and CHP deduction, 

including renewable energy produced 

off-site by the agency, renewable energy 

acquired pursuant to a power purchase 

agreement, Renewable Energy 

Certificates and a pro-rated share of the 

electricity produced from a CHP system. 

Specify that renewable energy 

production must be additive, that it 

must be tracked, and that the renewable 

energy attributes must be retained. 

• Clarify how district heating and 

cooling systems and combined heat and 

power systems are to be considered in 

determining compliance with the fossil 

fuel reductions. 

• Move the discussion of petitions for 

downward adjustment into its own 

subsection. 

• Allow GSA-tenant agencies to 

submit a petition for downward 

adjustment. 

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61698 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

7Notations of this form appear throughout this 

document and identify statements made in written 

comments or at public hearings that DOE has 

received and has included in the docket for this 

rulemaking. For example, ‘‘AGA, No. 16 at p. 4’’ 

refers to a comment: (1) From the American Gas 

Association; (2) in document number 16 in the 

docket of this rulemaking; and (3) appearing on 

page 4 of the submission. 

• Add information to be included in 

petitions for downward adjustment for 

new buildings, including a 

demonstration that all energy efficiency 

measures and on-site renewable energy 

measures that are life-cycle costeffective have been included in the 

design; a description of technologies 

that were evaluated and rejected, 

including a justification for why they 

were rejected; and a description of the 

building and building energy-related 

features. 

• Provide an address to which 

petitions must be submitted and clarify 

that DOE would respond to petitions 

within 90 days. 

• Provide streamlined processes for 

Federal agencies to petition for a 

downward adjustment for major 

renovations. 

III. General Discussion and Response to 

Comments 

A. Overview 

DOE received comments from 22 

different entities. In addition, 10,677 

form letters were received in a campaign 

coordinated by Earthjustice, some of 

which included unique comments 

(hereinafter referred to collectively as 

‘‘Form Letters.’’) 

The comments were analyzed and 

categorized into six major categories: 

Applicability, Baseline, Methodology, 

Impacts, Petition for Downward 

Adjustment, and Guidance. Each of 

these major categories was subdivided 

into at least four subcategories, leading 

to the final comment categorization 

shown below. 

Applicability: costs to determine $2.5 

million threshold; the effective date of 

the rule; definition of major renovations; 

applicability to single or multiple 

buildings; treatment of leased buildings 

and mixed use buildings; Federal 

buildings overseas; residential building 

categories; privatized military housing; 

coordination with the DOE rulemaking 

on sustainable design practices; and 

other. 

Baseline: CBECS and RECS baseline; 

climate adjustment; whole building 

simulation; buildings with energyintensive process loads not covered in 

CBECS and RECS; plug and process 

loads; differentiation between fossil 

fuels; differentiation of electric power 

mix by region; using the marginal 

source of electricity; treatment of 

residential common areas; and other. 

Methodology: additional rounds of 

review of the rule; off-site renewable 

energy; source versus site energy; onsite energy generation; fuel conversion 

efficiency; and other. 

Impacts: cost impacts and other. 

Petition for downward adjustment: 

bundling of petitions; costs as grounds 

for a petition; DOE review process; 

information in petitions; public 

availability of petitions; stringency of 

petition requirements; GSA-tenant 

agencies; and consideration of technical 

impracticability. 

Guidance: training and verification 

and monitoring. 

Most of the issues are the same for 

both commercial buildings (including 

multi-family residential buildings four 

stories or more) and residential 

buildings. Therefore, the discussion 

below applies to both building 

categories unless otherwise noted. 

B. Scope and Applicability of the 

Proposed Rule 

This section discusses the scope, or 

applicability, of the rule as proposed in 

response to comments received to date. 

This section provides preliminary 

responses related to: (1) What costs 

should be considered when calculating 

whether a construction project meets 

the $2.5 million threshold in EISA 2007; 

(2) when the rule goes into effect; and 

(3) which new construction and major 

renovation projects are covered by 

today’s rule. 

1. Determining the $2.5 Million 

Threshold for Applicability of the Rule 

As noted above, the proposed rule 

would apply to new Federal buildings 

and major renovations to Federal 

buildings that are: (1) ‘‘public 

buildings’’ as defined by 40 U.S.C. 3301 

for which a prospectus to Congress is 

required under 40 U.S.C. 3307; or (2) 

buildings with construction or 

renovation costs of at least $2.5 million 

in costs adjusted annually for inflation. 

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

buildings are collectively referred to as 

‘‘EISA-covered buildings’’ in this 

SNOPR.) DOE notes that the ECPA 

definition of ‘‘Federal building’’ was 

revised by EISA 2007. DOE is addresses 

this definition and the regulatory 

definition of ‘‘new Federal building’’ in 

this rulemaking. ECPA, as amended, 

defines ‘‘Federal building’’ to mean any 

building to be constructed by, or for the 

use of, any Federal agency including 

buildings built for the purpose of being 

leased by a Federal agency, and 

privatized military housing. (42 U.S.C. 

6832(6)) 

DOE requested comments in the 

NOPR specifically on the definition of 

construction costs to determine which 

buildings meet the $2.5 million 

threshold and would be subject to the 

fossil fuel reduction requirements. DOE 

noted that construction costs generally 

include design, permitting, construction 

(materials and labor), and 

commissioning costs, but that land and 

legal costs generally would not be 

included. 75 FR 63406. 

The American Gas Association (AGA) 

and the Department of Health & Human 

Services-Indian Health Service-Office of 

Environmental Health, Division of 

Engineering Services (DHHS–IHS– 

OEHE) agreed with the proposed 

definition. (AGA, No. 16 at p. 4; 7

DHHS, No. 24 at p. 1) The Edison 

Electric Institute (EEI) commented that 

the land and legal costs could be very 

high, and that all costs should be 

considered in any analysis. (EEI, No. 10 

at p. 2) 

DOE preliminarily has decided that 

land and legal costs would not be 

included when determining the $2.5 

million threshold. Legal costs are 

generally part of overhead costs, not 

construction costs. Concerning land 

costs, many new Federal buildings are 

built on land already owned by the 

Federal government. Moreover, it would 

be very challenging for agencies to 

determine the value of the land in these 

cases where there is no recent land 

purchase. Not including land costs for 

new Federal buildings in the threshold 

calculation would be consistent with 

the threshold calculation for major 

renovations, for which land costs are 

not a concern. 

In addition to comments specifically 

about land and legal costs, AGA and the 

National Propane Gas Association 

(NPGA) both questioned whether the 

cost of compliance with the fossil fuel 

consumption reductions would be 

included when determining whether the 

$2.5 million applicability threshold is 

met. (AGA, No. 17 at p. 6; NPGA, No. 

23 at p. 3) NPGA also expressed concern 

that the threshold is too low. (NPGA, 

No. 23 at p. 3) 

DOE believes that it could be difficult 

to separate the costs of complying with 

the requirements of this rule from other 

design and construction costs. 

Conversely, it may be difficult to 

calculate the cost of a project including 

the costs to comply with the fossil fuel 

reduction requirements in those 

instances in which an agency would be 

seeking a downward adjustment. DOE 

anticipates that design and 

constructions costs for most new 

Federal buildings, and many 

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renovations to Federal buildings, will 

exceed $2.5 million. Therefore, DOE 

proposes that the $2.5 million threshold 

does not include the cost of complying 

with the reductions and requests 

comment on this proposal. 

2. Compliance Date of the Rule 

The NOPR stated that the 

requirements would apply to all eligible 

buildings for which design for 

construction began at least one year 

after publication of the final rule. 75 FR 

63415. The Department of Defense-Air 

Force (DOD–AF) asked that the rule 

apply to projects programmed after the 

date the rule is final. (DOD–AF, No. 25C 

at p. 3) The majority of the comments 

on this issue suggested not delaying the 

rule. The Natural Resources Defense 

Council (NRDC) and the Form Letters 

stated that the rule should be finalized 

and implemented immediately, and 

AGA commented that the target 

reductions should be promulgated as 

soon as administratively practicable. 

(NRDC, No. 14 at pp. 13–14; Form letter, 

No. 29 at p. 1; AGA, No. 16 at p. 2) 

NRDC commented that the rule is 

already late, and recommended that 

‘‘design for construction’’ be interpreted 

to mean the initiation of the schematic 

design phase. (NRDC, No. 14 at pp. 13– 

14) NRDC also commented that DOE 

should interpret the fossil fuelgenerated reduction tables in EISA 2007 

to apply to the date of initial occupancy 

rather than the date that design begins. 

(NRDC, No. 14 at p. 15) 

DOE proposes to retain the 

compliance date, tied to the design of 

the building, as proposed in the NOPR. 

Federal agencies are familiar with this 

date as it is consistent with the 

compliance date that DOE has used for 

baseline Federal building energy 

efficiency standards at 10 CFR parts 433 

and 435 for several years. Under 10 CFR 

parts 433 and 435, ‘‘design for 

construction’’ means the stage when the 

energy efficiency and sustainability 

details (such as insulation levels, HVAC 

(heating, ventilating, and airconditioning) systems, water-using 

systems, etc.) are either explicitly 

determined or implicitly included in a 

project cost specification. This proposed 

rule would add a closely related 

definition of ‘‘proposed building’’ to tie 

the ‘‘design for construction’’ definition 

to the fossil fuel-generated energy 

consumption determination equation in 

the rule. A proposed building would be 

the design for construction of a new 

Federal commercial, multi-family highrise residential building, or low-rise 

residential building, or major renovation 

to such a building, proposed for 

construction. This definition was not 

proposed in the NOPR. DOE intends 

that the addition of this definition 

would help clarify terms in the fossil 

fuel-generated energy consumption 

determination equation. 

3. Major Renovations 

ECPA requires that fossil fuel 

reductions be implemented in ‘‘major 

renovations’’ to EISA-covered buildings. 

The Sustainable Design NOPR would 

define major renovation to include 

changes to a building that provide 

significant opportunities for substantial 

improvement in energy efficiency and 

renovations of any kind with costs that 

exceed 25 percent of the replacement 

value of the building, and requested 

comments on the definition. 75 FR 

29942. Because DOE had assigned the 

definition to the Sustainable Design 

Rule with the expectation that it would 

serve for both rules, DOE did not 

include the definition in the NOPR for 

this rule. However, this supplemental 

proposed fossil fuel-generated reduction 

rule is now being published prior to a 

final Sustainable Design rule, so DOE 

has modified the major renovation 

definition proposed in the Sustainable 

Design rule to align more closely with 

today’s fossil fuel-generated reduction 

supplemental proposed rule. 

Nonetheless, DOE received several 

comments related to major renovations 

for this rulemaking. NRDC commented 

that the scope of the rule should be 

broadened to apply to all new Federal 

buildings in order to meet the 

requirements of EISA 2007. (NRDC, No. 

14 at p. 2) The American Public Gas 

Association (APGA) commented that the 

25 percent threshold amount is too low. 

(APGA, No. 17 at p. 2) Both the 

Department of Defense-Navy (DOD–N) 

and DOD–AF recommended that DOE 

limit the rule to major renovations that 

cost 50 percent or more of the building 

replacement value, as that is the 

definition they use internally for their 

facilities. (DOD–N, No. 25B at p. 11; 

DOD–AF, No. 25C at p. 5) DOE also 

received two comments about 

renovations spanning more than one 

year. NRDC commented that DOE must 

define ‘‘construction project costs’’ to be 

the total planned or budgeted project 

costs for the renovation, irrespective of 

whether the project spans more than 

one fiscal year or whether the agency 

has yet to receive full funding. (NRDC, 

No. 14 at p. 5) APGA commented that 

by not including renovation activities 

that potentially could occur in future 

fiscal years, that energy saving capitalexpenditure renovations will be 

deferred to future fiscal years and could 

end up producing a negative net energy 

and greenhouse gas emissions return for 

renovation dollars expended. (APGA, 

No. 17 at p. 6) 

Based on the comments received, 

DOE is proposing to not include the 25 

percent cost limit in the definition of 

‘‘major renovation.’’ 

Regarding the issue of renovating a 

Federal building in phases over more 

than one year, the applicability of the 

requirements are again tied to the design 

for construction. If the cost of the design 

for construction, although performed in 

different phases, would trigger 

application of the fossil fuel 

requirements and the phases are known 

in advance, the fossil fuel requirements 

would apply. The construction phases 

should be planned such that the fossil 

fuel reductions are achieved by the time 

the entire project is complete. 

DOE proposes to clarify how the 

requirements would be applied to 

portions of a building or individual 

systems being renovated as part of a 

major renovation. DOE does not intend 

to require Federal agencies to meet the 

fossil fuel-generated reduction 

requirements for an entire building 

when an agency renovation is limited to 

system or component level retrofits. 

DOE proposes that the fossil fuel 

reduction requirements apply only to 

the fossil fuel consumption associated 

with the portions of the building or 

building systems that are being 

renovated and only to the extent that the 

scope of the renovation provides an 

opportunity for compliance with the 

applicable fossil fuel-generated energy 

consumption reduction requirements. 

This addition to the regulatory 

language would direct Federal agencies 

to determine whether the extent of the 

renovation allows for compliance with 

the requirements. For example, a 

renovation that overhauls a major 

energy-consuming system (e.g., lighting, 

HVAC, envelope, etc.) is likely a major 

renovation subject to today’s 

requirements because the renovation 

likely allows for compliance with the 

rule. Additionally, DOE proposes to 

distinguish between a major renovation 

that is a whole building renovation, and 

a major renovation that is limited to a 

system or component level retrofit. 

As reflected in the comments 

received, DOE acknowledges that it 

would often be technically 

impracticable in light of an agency’s 

specified functional needs to meet the 

requirements of today’s rule during a 

major renovation. A major renovation 

could range from what is essentially a 

‘‘gut rehab’’ or total replacement of all 

building systems without replacement 

of the building structure itself to a 

replacement of a single system or piece 

of equipment to replacement of several 

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8Based on Table 3.1.4 of the DOE Buildings 

Energy Databook (http://buildingsdatabook.eere.

energy.gov/TableView.aspx?table=3.1.4). 

9See discussion below in Section C. Establishing 

and Using the Baseline. 

10See Simulation Analyses in Support of DOE’s 

Fossil Fuel Rule for Single Component Equipment 

and Lighting Replacements by M Halverson and W 

Wang of Pacific Northwest National Laboratory at 

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

technical_reports/PNNL-22887.pdf. 

systems in a building. DOE believes that 

given the $2.5 million or ‘‘public 

building’’ threshold, the fossil fuelgenerated energy consumption 

requirement will primarily apply to 

Federal commercial buildings. The 

Department notes, however, that the 

rule could apply to certain multi-family 

housing that costs at least $2.5 million 

that is built by or for the use of any 

Federal agency, including buildings 

built for the purpose of being leased by 

a Federal agency and privatized military 

housing. 

With a complete whole building 

renovation, the building is stripped 

down to its structural elements and all 

new systems (including envelope, 

lighting, HVAC, and water heating 

systems) are installed. Generally, the 

designer of the renovation has less 

flexibility in design than the designer of 

a new building. There are also 

limitations on whole building 

renovations that may not be present 

with new construction. The geometry, 

orientation, and location of the building 

structure on the building lot are likely 

to be fixed. As noted, a whole building 

renovation is one in which a building is 

gutted to the level of its structural 

elements. The structural elements of the 

building should not have a major impact 

on the fossil fuel-generated energy 

consumption of the building. The fossil 

fuel reduction baseline and 

requirements derived from EIA’s 

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

relate to entire building fossil fuelgenerated energy consumption, not the 

fossil fuel consumption of individual 

systems. The level of fossil fuel 

consumption impacted through a whole 

building renovation is comparable to 

that consumption proposed in the 

appendices to this proposed rule; i.e., 

both the subject energy consumption 

and the maximum permitted amount of 

energy consumption are at the whole 

building level. Therefore DOE proposes 

that the requirements and 

methodologies applicable to new 

construction would be applicable to 

major renovations that are whole 

building renovations. 

Major renovations that are limited to 

system or component level retrofits, 

have additional practical limitations for 

reducing fossil fuel-generated energy 

consumption. Based on the DOE 

Buildings Energy Databook, DOE has 

estimated the contribution of major 

energy related systems to a commercial 

building’s energy use for primary 

energy.8

TABLE III.1—CONTRIBUTION OF

ENERGY USE BY MAJOR SYSTEMS

Percent 

Lighting ......................................... 20 

Space Heating .............................. 16 

Space Cooling .............................. 15 

Ventilation ..................................... 9 

Refrigeration ................................. 7 

Electronics .................................... 4 

Water Heating ............................... 4 

Computers .................................... 4 

Cooking ......................................... 1 

Other ............................................. 15 

Adjust to SEDS * ........................... 5 

Total .......................................... 100 

* SEDS (States Energy Data System) is 

used by the U.S. Energy Information Administration to resolve discrepancies between data 

sources. 

There have been improvements in the 

efficiencies of the systems and 

components as compared to that which 

was present in the buildings reported 

under the 2003 CBECS and 2005 RECS 

databases.9 A comparison of equipment 

efficiency changes for chillers and 

boilers (two pieces of equipment likely 

to be involved in a major renovation) 

from the original 1975 ASHRAE 

Standard 90–75, Energy Conservation in 

New Building Design, to the present 

FEMP-designated efficiency 

requirements for these pieces of 

equipment showed cooling end-use 

savings of up to 34 percent and heating 

end-use savings of up to 11 percent.10

The same analysis report shows a 

similar comparison for lighting 

indicated a potential savings of up to 52 

percent of the lighting load if lighting 

power density requirements from 

ASHRAE 90.1–2010 were compared 

with those found in ASHRAE 90A– 

1980. However, many Federal buildings 

have likely already undergone some 

lighting renovation, so it may be 

unlikely that a Federal building still has 

a lighting system based on 1980 

standards. Therefore, even if the subject 

energy use is limited to the energy use 

of the retrofitted system or component, 

the improvements in energy efficiency 

as compared to the systems and 

components in the typical CBECS 

building are not sufficient to meet the 

required reductions. If the impact of the 

efficiency improvements between 

current systems and components and 

those represented in CBECS is 

considered in the whole building 

context, a typical commercial building 

would realize whole building fossil fuel 

savings of 3 percent for cooling, 2 

percent for heating, and 7.5 percent for 

lighting. 

For these reasons, for major 

renovations that are less than whole 

building renovations (system or 

component level retrofits) DOE is 

proposing establishing the maximum 

allowable energy use in fiscal years 

2013 through 2029 based on the 

percentage of whole building energy 

consumption represented by the 

retrofitted system or component. The 

applicable value from the appendices in 

today’s rule would be multiplied by this 

percentage to arrive at the maximum 

allowable energy use of the retrofitted 

system or component. DOE requests 

comment on whether further direction 

would be required on how to 

distinguish between a major renovation 

that is a whole building renovation and 

one that is a system or component level 

retrofit, and requests comment on how 

such a distinction could be made. 

To further address issues related to 

major renovations, while ensuring that a 

fossil fuel-generated energy reduction is 

attained during a renovation, today’s 

rulemaking would require both that 

Federal agencies achieve specified 

energy efficiency levels before applying 

off-site renewable energy generation and 

before petitioning for a downward 

adjustment. Again, the proposed rule 

would distinguish between whole 

building renovations and system and 

component level retrofits. These 

changes are described further in the 

‘‘Off-Site and On-Site Renewable Energy 

and Renewable Energy Certificates’’ and 

‘‘Downward Adjustments for Major 

Renovations’’ sections. 

4. Multiple Buildings 

DOE received one comment from 

DOD–AF asking whether the $2.5 

million threshold for applicability of the 

rule would apply to individual 

buildings or to projects which may have 

two or more buildings. (DOD–AF, No. 

25C at p. 2) 

DOE has preliminarily determined 

that the $2.5 million threshold should 

apply to individual buildings to 

determine if they are covered buildings 

under this rule. The statute mandates 

that the requirements apply to 

‘‘buildings,’’ not ‘‘projects’’ or 

‘‘developments.’’ 

5. Leased Buildings 

EISA 2007 modified the ECPA 

definition of ‘‘Federal buildings’’ to 

include any building to be constructed 

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

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This term includes buildings built for 

the purpose of being leased by a Federal 

agency and privatized military housing. 

(42 U.S.C. 6832(6)) In addition, the 

NOPR limited application of the rule to 

renovations of leased buildings to only 

those renovations for which a Federal 

agency has significant control over the 

renovation design. 75 FR 63405. 

NRDC commented that there is a 

disconnect between the rule scope and 

the ECPA definition, which NRDC 

believes does not permit the exclusion 

of buildings that have been built for the 

purpose of being leased by a Federal 

agency. (NRDC, No. 14 at pp. 4–5) The 

U.S. Army Corps of Engineers-North 

Atlantic Division (NAD) commented 

that it seemed more appropriate to cover 

Federally leased buildings via the 

existing EISA 2007 section 435 rules, 

which require new Federal agency 

leases to be for ENERGY STAR labeled 

buildings, since existing buildings will 

be difficult to retrofit to meet these 

fossil fuel reductions. (NAD, No. 19 at 

p. 2) Department of Defense-Office of 

Under Secretary of Defense (DOD– 

OUSOD) recommended against applying 

the rule to any building whose design is 

not completely under the control of 

Federal agencies, and suggested that the 

rule should just state this principle and 

allow the agencies to apply their own 

judgment. (DOD–OUSOD, No. 25A at p. 

1) EEI asked if there would be a 

minimum lease period. (EEI, No. 10 at 

p. 2) 

DOE preliminarily has decided to 

remove the ‘‘significant control’’ 

provision for leased buildings covered 

under today’s rule because the ECPA 

definition of ‘‘Federal building’’ makes 

clear that the rule applies only to 

buildings built specifically for the 

Federal government. Significant control, 

therefore, is implicit in the definition. 

DOE is aware that compliance with 

today’s rule for small buildings or 

spaces that are leased for relatively short 

periods of time may not be possible. 

DOE also recognizes that at least two 

Federal agencies utilize contracts for 

short-term leases. Therefore, DOE 

requests comment on whether there 

should be a minimum lease period or a 

minimum rentable square footage 

threshold. 

6. Federal Buildings Overseas 

The DOD–N commented that 

including overseas facilities in the 

definition of Federal building may lead 

to circumstances where the agency does 

not have complete control over the 

design, or where other technical factors 

challenge the practicality of meeting the 

fossil energy reductions. (DOD–N, No. 

25B at p. 8) DOE recognizes that several 

agencies have buildings overseas and 

these buildings may be subject to a 

variety of legal authorities specific to 

that agency. DOE intends that the 

proposed rule would apply to the extent 

that the requirements are consistent 

with applicable law. DOE does not 

intend for the rule to cause any Federal 

agency to violate other legal authorities. 

This proposed rule does not expressly 

address the extent to which it may be 

applicable to buildings overseas as each 

individual agency is best positioned to 

understand the various and sometimes 

unique authorities that may be 

applicable to overseas buildings of that 

agency. In applying the proposed rule to 

any given building, Federal agencies 

must also decide whether the building 

meets the definition of Federal building 

at 42 U.S.C. 6832(6) and either the 

requirement that the building be a 

‘‘public building’’ for which a 

prospectus is required, or the 

requirement that the building or major 

renovation cost at least $2.5 million. (42 

U.S.C. 6834(a)(3)(D)(i)) For covered 

overseas facilities, Federal agencies 

should use the U.S. climate zone most 

similar to the location of the proposed 

building. 

7. Residential Buildings 

DOE received four comments related 

to the definition of residential building 

categories. Lish commented that the rule 

definition should include housing 

facilities owned and managed by 

Federal agencies, such as the National 

Park Service, Forest Service, and other 

land management agencies. (Lish, No. 

13 at p. 1) The DOD–AF requested that 

dormitories be removed from the 

proposed rule because of cost. (DOD– 

AF, No. 25C at p. 6) DHHS–IHS–OEHE 

believes there is an inconsistency 

between the reference to manufactured 

homes and mobile homes in the rule 

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

DOE does not believe any changes to 

the proposed language in the NOPR are 

needed as a result of these comments. 

The statute requires the inclusion of all 

Federal buildings that are EISA-covered 

buildings. Some of the building types 

discussed by commenters may not meet 

the definition of ‘‘public building’’ at 40 

U.S.C. 3301(a)(5) or may not require a 

prospectus to Congress as described at 

40 U.S.C. 3307, but may meet the $2.5 

million construction cost threshold. 

Some of the referenced buildings may 

not meet either threshold. Finally, DOE 

does not believe there would be an 

inconsistency between the reference to 

manufactured and mobile homes in the 

rule and in the RECS database. For 

purposes of the RECS database, 

manufactured and mobile homes are the 

same product. They are both defined as 

a housing unit built to the Federal 

Manufactured Home Construction and 

Safety Standards (24 CFR part 3280), 

built on a permanent chassis and moved 

to a site. 

8. Privatized Military Housing 

DOD–AF stated that DOE should 

clarify that the rule does not apply to 

privatized military housing because, in 

DOD–AF’s view, privatized military 

housing is not ‘‘leased by a Federal 

agency.’’ (DOD–AF, No. 25C at p. 2) In 

addition, DOD–AF is concerned that the 

proposed rule may cause many AF 

Privatized Housing deals that have 

already been closed to be canceled or 

renegotiated if they have to comply with 

the fossil fuel reduction requirements. 

(DOD–AF, No. 25C at p. 1) 

As noted above, EISA 2007 modified 

the ECPA definition of ‘‘Federal 

building’’ to apply to any building to be 

constructed by, or for the use of, any 

Federal agency. Such term shall include 

buildings built for the purpose of being 

leased by a Federal agency, and 

privatized military housing. (42 U.S.C. 

6832(6)) In addition, Congress again 

mentioned privatized military housing 

in ECPA when it specified that, ‘‘with 

respect to privatized military housing, 

the Secretary of Defense, after 

consultation with the Secretary [of 

Energy] may, through rulemaking, 

develop alternative criteria to those 

established in subclauses (I) [fossil fuel 

reduction requirements] and (III) 

[sustainable design requirements] of 

clause (i).’’ (42 U.S.C. 6834(a)(3)(D)(vi)) 

Although privatized military housing 

may not meet the definition of ‘‘public 

building’’ at 40 U.S.C. 3301(a)(5), the 

proposed rule would apply to privatized 

military housing with construction costs 

of at least $2.5 million. As described in 

this preamble, this cost threshold would 

apply on an individual building basis. 

9. Other 

A few miscellaneous comments were 

submitted regarding the scope of the 

rule that did not fit into one of the above 

subcategories. One comment was 

submitted by an anonymous commenter 

and encouraged the use of vacant 

buildings rather than new construction. 

(Anon, No. 27 at p. 1) There is nothing 

in ECPA that would prevent the reuse 

of vacant buildings. 

Earthjustice requested data on the 

number of new buildings and 

renovations that are likely and projected 

to be covered by this rule. (EJ, Public 

Meeting Transcript, at p. 69) For 

purposes of developing this 

supplemental proposed rule, DOE 

assumed that the Federal government 

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11http://www.eia.gov/emeu/cbecs/cbecs2003/

detailed_tables_2003/2003set1/2003pdf/a1.pdf. 

12Because of the criteria for buildings subject to 

the requirements, DOE has initially determined the 

proposed requirements would apply primarily to 

commercial buildings. As such, DOE has focused 

this discussion on CBECS. 

13ASHRAE Standard 90–75, Energy Conservation 

in New Building Design, August 1975. 

14 DOE estimates that even more than 56% of the 

surveyed buildings would have used 90–75, since 

the adoption of the 1980 standard was delayed two 

years. 

15ASHRAE Journal article titled ‘‘35 Years of 

Standard 90.1’’ in March 2010. http://www.ashrae.

org/File%20Library/docLib/Public/20100625_

ASHRAEDAJ10Mar0220100301.pdf. 

16See DOE’s final determination notice on 

Standard 90.1–2010 at 76 FR 64904 (October 19, 

2011) or http://www.gpo.gov/fdsys/pkg/FR–2011– 

10–19/pdf/2011–27057.pdf. 

17 DOE has preliminarily determined that the 

building criteria that determine applicability of the 

requirements would result in primarily commercial 

buildings being subject. As such, DOE has focused 

on commercial buildings. 

constructs 42 million square feet of new 

construction per year and renovates 14.6 

million square feet per year. This 

assumption is based on the analysis of 

three years of construction data 

purchased by PNNL as part of a 

commercial building construction 

dataset. The data is described in 

‘‘Weighting Factors for the Commercial 

Building Prototypes Used in the 

Development of ANSI/ASHRAE/IESNA 

Standard 90.1–2010’’, (Jarnagin and 

Bandyopadhyay, 2010). Data from the 

years 2007, 2008, and 2009 were used. 

Based on these analyses and 

assumptions, DOE expects that 44.6 

million square feet of Federal building 

stock would be subject to this regulation 

each year. Over the next twenty years, 

DOE expects that this rulemaking would 

affect approximately 892 million square 

feet of Federal floor space. This 

represents less than 25 percent of the 

total Federal building stock in 2030, and 

about a quarter of one percent of the 

total residential and commercial 

building floor space in the U.S. in 2030. 

C. Establishing and Using the Baseline 

The CBECS and RECS data, which can 

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

emeu/cbecs/contents.html and at http:// 

www.eia.gov/emeu/recs/contents.html, 

are based on actual reported energy use 

over a large sample of buildings, 

normalized for size to thousands of 

British thermal units per square foot of 

floor space (kBtu/ft2). For purposes of 

this rulemaking, the statute directs DOE 

to establish a baseline based on the 

energy consumption in similar 

buildings in fiscal year 2003 as 

measured by CBECS and RECS. 

One characteristic of buildings 

reported in the surveys is their age, or 

vintage.11 The 2003 CBECS estimates of 

building vintage range from pre-1920 

buildings (representing the oldest) to the 

2000–2003 years, which are the newest 

buildings in the 2003 CBECS.12 An 

analysis of the CBECS data indicates 

that 39 percent of the surveyed 

buildings were constructed prior to the 

publication of a standard energy code; 

the first widely recognized building 

energy codes were developed and 

published in 1975.13 Furthermore, DOE 

estimates that an additional 17 percent 

of the surveyed buildings were built 

before the architecture and construction 

industry recognized and used ASHRAE 

90–75 nationally; i.e., 1980. Therefore, 

an estimated 56 percent of the buildings 

surveyed were constructed prior to 

1980.14 The ‘‘typical building’’ in the 

2003 CBECS was likely built between 

1970 and 1979. 

The ASHRAE code is revised on a 

three year cycle. The version of the 

ASHRAE code that is applicable to new 

Federal commercial buildings for which 

design for construction began on or after 

August 10, 2012, is ASHRAE 90.1–2007. 

10 CFR 433.4(a)(2). As compared to 

ASHRAE 90–75, ASHRAE 90.1–2007 

has an energy efficiency improvement of 

approximately 30 percent.15 ASHRAE 

90.1–2010 adds an additional energy 

efficiency improvement of 

approximately 18.5%.16 Although the 

average building in the 2003 CBECS 

would have been built to ASHRAE 90– 

75, it is important to note that in the 

course of the lives of these buildings, 

building system components have been 

replaced over time so that the energy 

consumption as surveyed in 2003 will 

not be the same energy level the 

building used when first constructed. 

Even so, the energy efficiency 

improvements that are already required 

for the design of new Federal buildings 

would achieve a substantial portion of 

the fossil fuel-generated energy 

consumption reductions required in the 

interim years up to FY 2020. DOE has 

data that would indicate that Federal 

offices in Climate Zones 1a (Miami, 

Florida), 4c (Salem, Oregon), and 5a 

(Chicago, Illinois) as constructed to the 

requirements of the Federal baseline 

standard (90.1–2010) are approximately 

at the 65% Fossil Fuel Reduction level 

for government offices. Buildings 

constructed to be 30% better than 90.1– 

2007 (as required in the Federal 

standards if life-cycle cost-effective) will 

achieve more than 65% Fossil Fuel 

Reduction level for government offices. 

This is especially true considering that 

new Federal buildings must be designed 

to achieve an energy efficiency 

improvement 30 percent beyond the 

referenced ASHARE code to the extent 

life cycle cost effective. 

The CBECS and RECS data are 

reported at a high level. At the highest 

level, the utility of the data is limited in 

terms of climate zones and building 

types. However, CBECS and RECS 

microdata allow additional analysis and 

refinement. Recognizing the importance 

of climate on building energy use, as 

well as the limitations in CBECS and 

RECS, in the NOPR, DOE asked several 

questions about refinements to the 

CBECS and RECS data by different 

categories. The questions included 

whether the baseline should be adjusted 

for climate, how to treat plug and 

process loads, whether the rule should 

differentiate between fossil fuels, and 

whether the rule should include a 

regional adjustment to the fossil fuel 

component of the electric power mix. 

These and other issues are further 

addressed below. 

1. CBECS and RECS Baselines 

As previously indicated, the statute 

directs DOE to establish a baseline for 

the fossil fuel-generated energy 

consumption requirements using CBECS 

and RECS data from fiscal year 2003. A 

preliminary survey of the CBECS data 

indicates that the average building in 

the 2003 CBECS was subject to the 1975 

version of the ASHRAE building code 

for commercial buildings.17

The building type definitions for 

commercial buildings used in the NOPR 

were based largely on the CBECS and 

RECS glossaries, with minimal 

modifications for regulatory clarity. For 

a commercial building type not listed in 

CBECS, the NOPR proposed that 

agencies establish a baseline for the 

proposed design using the procedures in 

Appendix G, Performance Rating 

Method, of ASHRAE Standard 90.1– 

2004. For residential building types not 

listed in RECS, agencies would develop 

a baseline using the Simulated 

Performance Alternative from section 

404 of the IECC, 2004 Supplement 

Edition. 

DOE requested comments on the 

building type categories and definitions. 

Most of the comments DOE received 

related to how to establish a baseline for 

building types not listed in the tables 

derived from CBECS and RECS. 

The American Society of Heating, 

Refrigeration and Air Conditioning 

Engineers Standard 100 Revision 

Committee Standard (ASHRAE 

Standard 100 Committee) commented 

that an analysis by DOE’s Oak Ridge 

National Laboratory (ORNL) determined 

that there is sufficient data in CBECS to 

establish energy consumption targets for 

48 building types, and recommended 

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that the rule be modified to do so. 

(ASHRAE, No. 8 at p. 1) ICC and the 

Institute for Market Transformation 

(IMT) endorsed the uses of the CBECS 

and RECS databases. (ICC, No. 11 at p. 

3; IMT, Public Meeting Transcript, No. 

7 at p. 26) DHHS–IHS–OEHE supported 

DOE’s interpretation of the CBECS and 

RECS baselines and commented that 

building type definitions are 

appropriate, but requested clarification 

of the definition of health care 

(outpatient) facilities with diagnostic 

medical equipment. (DHHS, No. 24 at 

pp. 1, 3) 

EEI agreed with use of CBECS but 

commented that some buildings do not 

neatly fall into a building category. (EEI, 

No. 10 at p. 3) AGA encouraged the 

Department to develop more detailed 

procedures for building types not 

directly represented in the CBECS and 

RECS data, and believes the Department 

may engage stakeholders in this 

analysis. (AGA, No. 16 at p. 3) NAD and 

DOD–AF commented that the CBECS 

and RECS data does not cover some 

building types and larger buildings of a 

more industrial nature, such as military 

buildings, and requested information on 

how these will be included. (NAD, No. 

19 at p. 1; DOE–AF, No. 25C at pp. 3– 

4) 

Regarding the use of ASHRAE or the 

IECC, EEI recommended that ASHRAE 

90.1–2004 should be allowed as an 

alternative to the IECC 2004 

Supplement for residential buildings 

without baseline data. (EEI, No. 10.2 

Cover Letter at p. 2) Several commenters 

noted that there would be a disparity 

between the baselines generated from 

CBECS and the baselines generated 

using ASHRAE 90.1–2004. (DHHS, No. 

24 at p. 4; National Nuclear Security 

Administration, No. 9 at p. 1; EEI, No. 

10 at p. 3; DOD–AF, No. 25C at p. 4) The 

Gas Technology Institute (GTI) proposed 

that DOE amend the ASHRAE 

Performance Rating Method to create a 

single reference building in order to be 

consistent with the CBECS database 

methodology, noting that DOE’s Home 

Energy Score Tool methodology would 

be a superior approach. (GTI, No. 22 at 

p. 12) NIBS supported DOE’s proposal 

to use Appendix G of ASHRAE 

Standard 90.1 and the IECC Simulated 

Performance Alternative, stating that 

these are probably the best alternatives 

to CBECS and RECS. However, NIBS 

noted there could be some issues with 

the quality of the baselines produced 

using these methods, and suggested 

certification of modelers and use of the 

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

2) 

ICC and IMT stated that the CBECS 

and RECS data are in need of upgrading. 

NIBS encouraged DOE to expand 

sample sizes and improve the surveys 

going forward. (NIBS, No. 12 at pp. 

1–2) DOE regularly updates and 

improves upon the CBECS and RECS. 

The versions of these surveys that DOE 

chose to use in today’s rule (2003 

CBECS and 2005 RECS) were based on 

Congressional direction in EPCA. DOE 

chose to use 2005 RECS data because 

the RECS was conducted in 2001 and 

2005 but not 2003. 

DOE proposes to retain CBECS as the 

baseline for commercial buildings and 

RECS as the baseline for multi-family 

high-rise and low-rise residential 

buildings with one exception. In the 

NOPR, DOE proposed to include the 

category ‘‘multi-family in 5 or more 

units’’ in the commercial building and 

multi-family high-rise residential 

building requirements. A ‘‘multi-family 

high-rise residential building’’ is a 

residential building that contains three 

or more dwelling units and that is 

designed to be four or more stories 

above grade. It is possible that a 

building could have four or more stories 

above grade, but fewer than five units. 

DOE believes that such buildings 

designs would be rare and would have 

energy consumption patterns similar to 

such buildings with five or more units. 

To avoid a potential gap in coverage of 

the building types, DOE proposes to use 

‘‘multi-family high-rise residential 

building’’ in place of ‘‘multi-family in 5 

or more units.’’ In addition, regarding 

the definition of health care (outpatient) 

facilities with diagnostic medical 

equipment, the reference to diagnostic 

equipment is from the current CBECS 

building types under which agencies 

have been reporting. DOE proposes that 

agencies continue to apply that term 

consistent with CBECS reporting. 

In response to comments, DOE 

preliminarily has decided to use the 

analysis from ORNL for the ASHRAE 

Standard 100 Revision Committee to 

expand the CBECS data from the twelve 

building categories used in the NOPR to 

the 48 commercial building types used 

in today’s rule. (As noted in the NOPR, 

the phrases ‘‘principal building 

activity’’ and ‘‘building types’’ are used 

interchangeably in CBECS and RECS 

documents. For the sake of consistency, 

this document only uses the phrase 

‘‘building type.’’) While ORNL was 

conducting the climate adjustment for 

DOE, as DOE indicated it would 

conduct in the NOPR, it coordinated its 

work with the ASHRAE Standard 100 

Revision Committee, which had a need 

for similar work. While developing the 

climate adjustment method, ORNL also 

developed a methodology to parse the 

CBECS and RECS microdata into more 

building types. As a result, as part of its 

public comment on today’s rulemaking, 

the ASHRAE Standard 100 Revision 

Committee requested that DOE use these 

building types. Although the reduction 

requirement for multi-family high-rise 

residential buildings comes from the 

RECS database, DOE proposes to 

include the requirements in the tables 

for 10 CFR part 433 to maintain the 

scope of coverage of part 433 versus part 

435 building types. 

2. Climate Adjustment 

The maximum allowable fossil fuelgenerated energy consumption values in 

Tables 1 and 2 of the NOPR were based 

on national averages not adjusted for 

climate. The NOPR noted that the 

limited number of buildings surveyed 

by CBECS and RECS data does not 

always allow for a direct estimate of 

building energy use by climate zone and 

building type because there are only a 

few surveyed buildings that fit into 

some building type/climate zone 

groups. 75 FR 63406. However, DOE 

noted that it believed a climate 

adjustment is necessary to provide 

reasonable baselines and, therefore, 

stated that DOE is developing fossil 

fuel-generated reduction requirements 

based on building type and then 

applying a climate zone as defined in 

the baseline energy efficiency standards 

at 10 CFR parts 433 and 435. 75 FR 

63406. DOE requested comments on 

including a climate adjustment. 

Most of the comments DOE received 

regarding the climate adjustment were 

favorable. The ASHRAE Standard 100 

Committee recommended that the 

maximum allowable consumption 

values for each of the CBECS and RECS 

building types be adjusted for each of 

the 16 climate zones developed by 

DOE’s Pacific Northwest National 

Laboratory (PNNL) based on a 

simulation of prototype buildings 

meeting ASHRAE Standard 90.1–2004 

developed by DOE’s National 

Renewable Energy Laboratory (NREL). 

(ASHRAE, No. 8 at p. 1) NIBS 

recommended utilizing the climate 

normalization techniques developed by 

EPA for the ENERGY STAR program. 

(NIBS, No. 12 at p. 4) ICC states that it 

believes that it is sensible to take into 

account regional climate variations, 

such as those recognized in the 

International Energy Conservation Code. 

(ICC, No. 11 at p. 2) DHHS–IHS–OEHE 

and the American Institute of Architects 

(AIA) urged DOE to consider regional 

and climatic factors, and DHHS–HIS– 

OEHE suggested using the climate zones 

identified in ASHRAE 90.1 and IECC. 

(DHHS, No. 24 at p. 1; AIA, No. 15 at 

p. 2) GTI recommended the DOE Home 

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Energy Score Tool used for existing 

home ratings. (GTI, No. 22 at p. 11) The 

National Park Service, Alaska Region 

(NPS-Alaska), recommended an 

alternative table of Alaskan climate 

zones. (NPS-Alaska, No. 6, p. 1) EEI 

questioned how the adjustments are 

going to be calculated to address the 

limitations of the CBECS and RECS 

data. (EEI, No. 10 at p. 3) AGA 

commented that a climate adjustment is 

logical for some loads, such as space 

conditioning, but requested more 

information about DOE’s methodology. 

(AGA, No. 16 at p. 4) 

DOE proposes to include a climate 

adjustment. A climate adjustment places 

buildings in different climates on a 

more level-playing field. Under the 

proposed climate adjustments, buildings 

would have to achieve reductions 

commensurate to a baseline appropriate 

for their climate zone rather than a 

national average baseline. As a result, 

buildings in cold climates would have 

a higher target to account for the 

increased energy use associated with a 

cold climate, and buildings in warmer 

climates would have a lower target. This 

approach would ensure that buildings 

in both cold and warm climates achieve 

55 percent reductions based on a 

climate-adjusted baseline, rather than 

the building in the cold climate having 

to achieve a deeper percentage 

reduction and a building in a warm 

climate having to achieve a lesser 

percentage reduction to meet the same 

absolute target based on a national 

average. 

For example, assuming a CBECS or 

RECS national average baseline fossil 

fuel use equals 100 kBtu/sq.ft. for a 

given building, at a 55 percent reduction 

for FY 2010–14, the target fossil use 

becomes 45 kBtu/sq.ft. However, a 

building in a cold climate may actually 

use more than the national average, 

perhaps 150 kBtu/sq.ft. The same 

building in a warm climate may actually 

use less, perhaps 50 kBtu/sq.ft. To meet 

the 55 percent reduction for the FY 

2010–14 national average target of 45 

kBtus/sq.ft. without a climate 

adjustment, a building in a cold climate 

must achieve a reduction of 105 kBtus/ 

sq.ft. (which would be an actual 70 

percent reduction), while the same 

building in a warm climate would need 

to achieve a reduction of only 5 kBtus/ 

sq.ft. (which would be an actual 10 

percent reduction). 

Using the above example, the climate 

adjustment in today’s rule would set the 

baseline at 150 kBtu/sq.ft. for the cold 

climate example, so a 55 percent 

reduction would make the target 67.5 

kBtu/sq.ft. instead of 45 kBtu/sq.ft. In 

the warm climate example, the baseline 

would be 50 kBtu/sq.ft., and a 55 

percent reduction would make the target 

22.5 kBtu/sq.ft. instead of 45 kBtu/sq.ft. 

In other words, buildings in both the 

warm and cold climate zones have to 

achieve 55 percent reductions but must 

meet that baseline relative to the climate 

adjusted baseline for the appropriate 

climate. The same logic applies to the 

65, 80, 90, and 100 percent reductions. 

All covered buildings designed in FY 

2030 or later would be required to meet 

the 100 percent reduction, regardless of 

climate. 

The maximum allowable fossil fuelgenerated energy consumption in 

proposed Tables 1–4 of Appendix A of 

both part 433 for commercial buildings 

and multi-family residential buildings 

and part 435 for low-rise residential 

buildings include adjustments for 

climate. The climate adjustments were 

developed by ORNL. ORNL developed 

national energy use intensities (EUIs) for 

over 50 building types from CBECS and 

RECS, and used zonal EUI ratios derived 

from building simulation modeling 

performed by the NREL to parse the 

building types into 16 different climate 

zones. The procedure is described in 

more detail in ‘‘Derivation of Federal 

Building Fossil Fuel Energy Use 

Reduction Targets,’’ (ORNL/TM–2011/

84, http://hyperion.ornl.gov/pubs/

EISATargets.pdf). DOE’s climate zone 

map is produced below for reference. 

The county-by-county climate zones are 

defined in the baseline standard for 10 

CFR part 433—ASHRAE Standard 90.1– 

2010. 

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3. Plug and Process Loads 

In addition to fossil fuel-generated 

energy consumption used for buildingrelated functions such as lighting, 

HVAC, and envelope, equipment related 

to the use that occurs within the 

building also consumes fossil fuelgenerated energy. This includes plug 

loads such as office equipment, personal 

computers, cash registers, and other 

such equipment that are typical to 

buildings. However, some building 

types also house process loads that are 

very energy-intensive relative to other 

building-related energy use. 

In the NOPR, DOE acknowledged that 

inclusion of plug and process loads in 

the methodology may make it more 

difficult to achieve the mandated fossil 

fuel-generated energy consumption 

reductions. DOE noted that all building 

energy consumption, including plug 

and process load consumption, is 

included in the baseline CBECS and 

RECS data and, therefore, proposed that 

plug and process loads would be subject 

to the fossil fuel reductions. 

DOE requested comments on how the 

proposed rule could be designed such 

that the assumptions used in the whole 

building simulations would accurately 

reflect the final building design and 

operation, including plug and process 

loads. 75 FR 63410. In this SNOPR, DOE 

clarifies that CBECS does not include 

building types with energy use 

dominated by process loads. 

Several comments were submitted 

relating to plug and process loads. Most 

comments received on plug and process 

loads expressed concerns about 

including process loads in the fossil 

fuel-generated energy consumption 

baselines, with particular concern about 

including energy-intensive process 

loads. EEI, DHHS–IHS–OEHE, DOD–AF, 

ASHRAE 100, and AGA commented 

that process or plug and process loads 

should not be included in the 

calculations since these loads do not 

directly represent the building design 

attributions. (EEI, No. 10 at p. 6; DHHS, 

No. 24 at p. 4; DOD–AF, No. 25C at p. 

5; ASHRAE, No. 8 at p. 2; AGA, No. 16 

at p. 4) 

DOE received a number of comments 

from DOD suggesting that because many 

DOD facilities do not map to the CBECS 

building types, DOE should remove the 

process load component from the 

calculations or otherwise treat certain 

buildings with process loads differently. 

(DOD–AF, No. 25C at p. 4; DOD– 

OUSOD, No. 25A at p. 2; NAD, No. 19 

at p. 1;DOD–N, No. 25B at p. 9) 

Otherwise, DOD–N noted, petitions for 

downward adjustment of the reduction 

requirement could consist 

predominantly of buildings dominated 

by process loads. (DOD–N, No. 25B at 

pp. 6, 9, 12) DOD–N recommended 

standardized building occupancy and 

use assumptions. (DOD–N, No. 25B at p. 

6) 

CBECS and RECS do not include 

building types with what are generally 

understood to be energy-intensive 

process loads. Process loads are 

typically metered separately and do not 

include energy consumed for 

maintaining comfort and amenities for 

the occupants of the building (including 

space conditioning and lighting for 

human comfort or convenience), 


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61706 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

commercial equipment and officerelated plug loads, and other loads 

whose energy use is included in the 

building categories in CBECS and RECS 

(such as medical equipment and 

commercial refrigeration). Energyintensive process loads would include, 

but not be limited to, activities such as 

manufacturing, painting, welding, metal 

work, fabricating, assembly, and data 

centers. 

In the proposed rule, the baseline for 

building types not in CBECS or RECS 

would have been determined by a whole 

building simulation, and the process 

loads would have been subject to the 

fossil fuel-generated energy 

consumption reduction requirements. 

DOE understands that it could be much 

more difficult for agencies designing 

buildings with energy-intensive process 

loads to comply with the requirements 

of today’s rule than agencies designing 

buildings without process loads. It is 

more difficult to reduce process energy 

consumption, and the process activity is 

critical to the agency’s purpose for the 

building. In addition, for buildings with 

energy-intensive process loads, the 

process loads tend to dominate the 

energy consumption of the building. As 

a result, DOE acknowledges that 

agencies with buildings with such 

process loads may be the agencies most 

likely to petition DOE for a downward 

adjustment of the standard if the process 

loads were subject to the fossil fuel 

reduction requirements. DOE also notes 

that plug and process loads are 

excluded from the baseline energy 

efficiency requirements for Federal 

commercial and multi-family high-rise 

residential buildings. (See 10 CFR 

433.101) 

Based on these considerations, DOE 

proposes that for building categories 

and types not listed in CBECS with 

energy-intensive process loads, the 

process loads should not be subject to 

the fossil fuel-generated energy 

consumption reduction requirements of 

this rule. These building types would 

remain subject to today’s requirements 

by separating the process loads from the 

building and building-related loads as 

follows: 

1. Federal agencies with buildings 

with energy-intensive process loads 

would choose the CBECS building type 

(from Tables 1–4 of Appendix A) that 

most resembles the building as if it had 

no process loads. For example, 

industrial facilities and airplane hangars 

for painting/plating would generally 

map to warehouses, and data centers 

would generally map to laboratories. 

2. Agencies would then find the 

appropriate target from Tables 1–4 

based on climate zone and fiscal year in 

which design for construction began for 

the underlying building type selected in 

Step 1. Because Tables 1–4 do not 

include these process loads, agencies 

would add to the target the estimated 

fossil fuel-generated energy use of the 

process loads to determine the 

maximum allowable fossil fuelgenerated energy consumption for the 

proposed building. When estimating the 

process load, the agency would use the 

electricity fossil fuel generation factor 

and the electricity source energy factor 

defined in this rule to convert electricity 

into kBtu/sq.ft. 

3. To determine compliance, agencies 

would estimate the energy use and fossil 

fuel-generated energy consumption of 

the proposed building using the 

equation in section 433.201(a) (for 

CBECS) or 435.201(a) (for RECS), add 

the estimated process load from Step 2, 

and compare the result to the maximum 

allowable fossil fuel-generated energy 

consumption. 

DOE believes that this calculation for 

buildings with process loads, along with 

the expanded list of building types 

described earlier, would make it 

unnecessary to develop an alternative 

baseline using a simulated model as was 

proposed in the NOPR. The expanded 

list of building types is comprehensive 

and should cover virtually all building 

types and categories in the Federal 

sector. Agencies should be able to find 

a building type from the expanded list 

that closely resembles the building as if 

there were no process loads. Thus, DOE 

has deleted provisions in the proposed 

rule to develop alternative baselines 

using Appendix G of the Performance 

Rating Method in ASHRAE Standard 

90.1–2004 or the IECC Simulated 

Performance Alternative. DOE believes 

this approach is simpler and clearer 

than the method proposed in the NOPR, 

and addresses the concerns and 

comments that were submitted. 

DOE seeks comment on three specific 

issues related to process loads: 

1. DOE recognizes that not all 

building categories or building types are 

equally represented in CBECS data. 

Additionally, energy use can vary 

widely within the same building 

category or type. Therefore, DOE 

requests additional comment on the 

treatment of process loads for building 

categories that are under-represented in 

CBECS, or where energy use varies 

widely. DOE also seeks comment on 

what parameters to use when 

determining that a building is underrepresented in CBECS. 

2. In addition, DOE recognizes that 

buildings with high process loads must 

increase the capability of their HVAC 

systems beyond what the building 

would require absent the building’s 

process-related mission. Therefore, DOE 

seeks further comment on whether and 

how to account for the increment of 

supplemental HVAC required to 

condition buildings with high process 

loads. 

3. DOE understands that agencies may 

not be uniformly equipped to submeter 

their process loads for the purposes of 

calculating their required fossil fuel 

reduction. Therefore, DOE requests 

comment on the degree to which 

agencies presently submeter process 

loads. 

Concerning plug loads, GTI suggested 

that the additional variability in plug 

loads is a legitimate issue, but suggested 

that it is an issue that can be addressed 

by a good engineering analysis during 

the design phase. (GTI, No. 22 at p. 12) 

EEI stated that the methodology must 

treat plug loads the same for purposes 

of both the baseline and the proposed 

design. (EEI, No. 7 Public Meeting 

Transcript, at p. 33–35) 

Plug loads are included in the 

building types reported by the CBECS 

and RECS databases. In addition, they 

generally do not dominate the building 

energy profiles like some process loads, 

and it is easier to achieve plug load 

reductions through the use of ENERGY 

STAR and other energy efficient 

products than it is to reduce process 

loads. As a result, DOE preliminarily 

has decided that plug loads would 

continue to be included in the baseline 

and would be subject to the fossil fuel 

reduction requirements. 

4. Differentiate Between Fossil Fuels 

Some fossil fuels produce higher CO2

emissions than other fossil fuels, with 

coal being the highest and natural gas 

being the lowest. The NOPR noted that 

ECPA makes no distinction between 

fossil fuels for purposes of the required 

fossil fuel-generated energy 

consumption reductions addressed by 

this rule. 75 FR 63406 While the statute 

does not specifically direct DOE to 

consider variation in fossil fuels for 

purposes of this rulemaking, DOE stated 

that the statute does not prohibit DOE 

from taking the variation into account. 

With that in mind, DOE requested 

comments on whether all fossil fuels 

should be treated equally or whether 

each should be treated differently based 

on CO2 emissions or some other factor. 

DOE received several comments about 

differentiating between fossil fuels. The 

comments varied, although most 

favored differentiating between fossil 

fuels. DHHS–IHS–OEHE supported 

taking into consideration the actual CO2

emission factors of fossil fuel types and 

whether or not a fuel comes from 

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1http://energy.gov/eere/femp/federal-energymanagement-program. 

domestic or imported sources. (DHHS, 

No. 24 at p. 2) DOD–N, National Rural 

Electric Cooperative (NREC) and the 

General Services Administration— 

Office of Federal High Performance 

Green Buildings (GSA) also supported 

weighting fossil fuels based on their 

respective carbon footprints. (DOD–N, 

No. 25B at p. 4; NREC, No. 28 at p. 2; 

GSA, No. 26 at p. 2) The Office of the 

Deputy Under Secretary of Defense, 

Installations and Environment, 

Facilities Energy Directorate (ODUSD) 

believes such an approach would help, 

but recommended a thorough study of 

the potential cost impact prior to 

implementing such a policy. (DOD– 

OUSOD, No. 25A at p. 3) GTI 

recommended that fossil fuel types be 

distinguished by their cost, efficiency 

and CO2 content. (GTI, No. 22 at p. 13) 

The AGA commented that the DOE 

should restrict its consideration only to 

fuel cycle issues, not carbon 

contributions of fuel cycles, because 

greenhouse gas emissions are not the 

dominant issue in this rulemaking. 

(AGA, No. 16 at pp. 4–5) 

DOE notes that ECPA establishes 

building design requirements based on 

‘‘fossil fuel-generated energy 

consumption’’ of a building, not 

greenhouse gas emissions of a building 

or other factors that may differentiate 

fossil fuels. Upon reconsideration of the 

issue as it was proposed in the NOPR, 

DOE believes that applying the 

reduction requirements equally to all 

fossil fuel types is the best 

interpretation of the statute. As a result, 

DOE is not differentiating between fossil 

fuels in today’s rulemaking. 

5. Regional Fossil Fuel Factors 

To determine the fossil fuel-generated 

energy consumption of the buildings 

reported in CBECS and RECS, the fossil 

fuel component of the electricity used 

by the building was added to the 

building’s direct fossil fuel 

consumption. To calculate the fossil 

fuel component of site electricity use, 

site electricity was multiplied by the 

percentage of electricity nationally that 

is produced from fossil fuels, referred to 

as the electricity fossil fuel generation 

factor for purposes of this rule. The 

factor was obtained by summing the 

electricity generated from fossil fuels 

(coal, oil, natural gas, and other gases) 

from Table 3.2.A of the Energy 

Information Administration (EIA) 2012 

Electric Power Annual Report (http://

www.eia.gov/electricity/annual/html/

epa_03_02_a.html) and dividing it by 

the total electricity produced in the U.S. 

75 FR 63407. According to Table 3.2.A, 

for 2003, the fossil fuel generation factor 

was 0.71, meaning that about 71 percent 

of all electricity in the U.S. is generated 

from fossil fuels. DOE chose to use the 

2003 value in accordance with the 

statutory mandate that buildings be 

designed so that the fossil fuelgenerated energy consumption of the 

buildings is reduced as compared with 

such energy consumption by a similar 

building in fiscal year 2003 (as 

measured by CBECS or RECS.) In 

addition, DOE notes that the fossil fuel 

generation factor has varied from 0.71 in 

2003 to a peak of 0.74 in 2007 and back 

to 0.71 in 2012. DOE indicated in the 

NOPR that it was considering a regional 

approach to establishing the fossil fuel 

fraction associated with electricity, and 

asked for comments. 

Public comments were mixed, some 

supporting and some opposing the use 

of a regional fossil fuel factor. EEI 

questioned whether adjustments for 

regional electricity use would be made 

by census region, sub-census region, 

power pool region, by state, or by some 

other form of disaggregation. (EEI, No. 

10 at p. 3) GSA also supported a 

regional approach. (GSA, No. 26 at p. 1) 

AGA supports use of a regional fossil 

fuel mix for electric generation based on 

eGRID subregional level data. (AGA, No. 

16 at p. 4) The ICC supported the 

current proposed approach of using the 

national average, stating that it would be 

more efficient to simplify the 

requirements and smooth the 

differentials between buildings by using 

a national average fossil fuel generation 

factor. (ICC, No. 11 at pp. 2–3) GTI 

stated that for the purposes of national 

rulemaking, national average factors 

would be consistent with some of DOE’s 

prior methodology and protocols. (GTI, 

No. 22 at p. 7) DHHS–IHS–OEHE and 

NIBS also support the national average 

fuel mix. (DHHS, No. 24 at p. 2; NIBS, 

No. 12 at p. 2) NAD stated that the 

electricity source energy factor and 

electricity fossil fuel-generation factor 

should be based on a regional approach. 

(NAD, No. 19 at p. 1) 

The difference in regional fossil fuel 

factors would not increase overall fossil 

fuel reductions, but would simply shift 

where reductions come from. Buildings 

in regions with high fossil fuel content 

in their electric power mix would 

require deeper reductions in electricity 

use than buildings in regions with lower 

fossil fuel content in their electric 

power mix. For agencies with buildings 

across the nation, the fossil fuel content 

of their buildings, in the aggregate, 

would tend toward the national average. 

Introducing regional differences adds 

complexity to the rule with little 

additional benefit. 

Finally, the source of electricity used 

in a region may be different than the 

source of electricity generated in that 

region. Power may be generated in one 

place, but shipped via the grid to 

another area for use. Utilities may 

purchase power from another utility or 

a merchant plant at a distant location. 

While data on power generation is 

readily available, data on where the 

electricity in an area comes from and 

how it was produced is more difficult to 

trace. This leads to the question of what 

the appropriate breakdown of region 

would be—utility district, state, power 

pool area, or interconnection grid. 

Based on these preliminary 

conclusions, DOE proposes to use the 

national electric power mix in 

determining the fossil fuel portion of 

electricity consumption in the rule. 

Using the national average fossil fuel 

factor is simpler for Federal agencies 

and DOE believes it would yield 

equivalent results. In addition, DOE 

proposes to calculate and post the value 

of the fossil fuel generation factor to be 

used each year on the FEMP Web site 

and as an update to this regulation1

rather than requiring agencies to refer to 

the Buildings Energy Data Book on an 

annual basis as was proposed in the 

NOPR. 

6. Marginal Source of Electricity 

The NOPR stated that reductions in 

future electricity demand are likely to 

cause electric utilities to reduce the 

power supplied by those electricity 

generation units or sources that have the 

highest marginal costs. DOE believes 

that over the short and long-run, fossil 

fuel-powered units would have higher 

marginal costs than units powered by 

nuclear, hydropower, or renewable 

energy sources. DOE invited comments 

on whether marginal factors to estimate 

the fossil fuel consumption associated 

with electricity consumption should be 

considered, on grounds that marginal 

factors might better reflect the fossil fuel 

portion of new generating capacity that 

is being built. 75 FR 63407. For 

example, if almost all new electricity 

generation capacity built for new 

demand in the coming years is from 

non-fossil sources of energy, then it 

might be reasonable for new Federal 

buildings to reduce only their locally 

consumed fossil fuel consumption and 

not focus on reducing electricity 

demand to meet the requirements of the 

rule. 

AGA commented that the rule should 

not use marginal electricity generation, 

noting that the most equitable means of 

including new ‘‘marginal’’ generation 

into the electric grid is as additional 

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supply to the average mix. (AGA, No. 16 

at p. 4) DOD–N recommended using 

marginal fossil fuel reduction factors, 

averaged nationally. (DOD–N, No. 25B 

at p. 4) NIBS commented that it would 

be appropriate to consider the time of 

such electricity use and its likely impact 

on the fossil fuel mix. (NIBS, No. 12 at 

p. 2) EEI was concerned that the electric 

grid is changing and the tools used by 

DOE in the rule are already out of date. 

(EEI, Public Meeting Transcript, No. 7 at 

p. 45) EEI commented that the source 

energy methodology looks backwards 

and does not account for the dynamic 

changes to electric generation that will 

be occurring over the next 20–30 years, 

and that DOE’s 71 percent electric 

source factor nationwide is outdated 

and does not account for the states that 

have renewable portfolio standards. 

(EEI, No. 10 at p. 3) 

DOE has considered the issue and is 

proposing not to use marginal electric 

source factors. The mix of new electric 

generating capacity added to the grid 

varies year-to-year. However, the 

amount of electricity generated from 

fossil fuels on an annual basis has 

varied from 68 percent to 72 percent 

over the past fifteen years, with no 

discernible trend. If new, marginal 

generating capacity were steadily 

becoming more fossil fuel-dependent or 

less fossil fuel-dependent, there would 

be a trend in how much electricity is 

produced from fossil fuel on an annual 

basis, but such a trend is not discernible 

in the current data. In addition, the load 

growth represented by buildings 

covered by this rule is likely too small 

relative to overall electric utility load 

growth to change utility decisions on 

investment in new generating resources. 

Furthermore, as the fossil fuel reduction 

requirement increases toward 100 

percent for buildings for which design 

for construction begins in FY2030, the 

marginal factors will be less relevant 

because all fossil fuel use will be 

eliminated in any event. For these 

reasons DOE believes it would be best 

to continue to use average generating 

capacity for the fossil fuel generation 

factor rather than marginal generating 

capacity. 

7. Residential Common Areas 

The NOPR stated that the RECS 

baseline for multi-family residential 

buildings only includes the energy use 

for individual dwelling units, not any 

associated conditioned common areas. 

DOE proposed applying the RECSderived fossil fuel requirements to all 

applicable floor space, including both 

common and non-common areas. 75 FR 

63408. Because common areas often 

have a lower energy intensity than 

individual dwelling units, using only 

non-common areas in the calculation for 

the proposed design’s fossil fuel 

consumption is likely to result in a 

slightly higher maximum allowable 

fossil fuel-generated energy requirement 

than using both common areas and noncommon areas in the calculation. This 

approach will make it easier for 

building designers to demonstrate 

compliance for a residential building 

overall. Because common areas account 

for only a small fraction of the floor 

space in multi-family residential 

buildings, however, the actual effect on 

fossil fuel reductions would be minimal. 

AGA and DHHS–IHS–OEHE 

supported application of the energy use 

values for non-common areas to all 

applicable floor space, common and 

non-common. (AGA, No. 16 at p. 4; 

DHHS, No. 24 at p. 4) Based on the 

rationale provided in the NOPR and the 

supporting public comments, this 

proposed rule continues the approach 

proposed in the NOPR. 

8. Major Renovations 

As noted previously in this document, 

the CBECS and RECS data that provide 

the baseline for today’s requirement are 

building level data. For major 

renovations that are whole building 

renovations, the maximum fossil fuelgenerated energy consumption values 

generated from CBECS and RECS 

provide requirements that are 

comparable to the energy consumption 

of the whole building renovation. 

However, DOE believes that the 

maximum consumption levels 

presented in the proposed tables may 

not be appropriate for major renovations 

that are system or component level 

retrofits. As such, DOE is proposing that 

the requirements for system and 

component level retrofits would be 

based on percentage of whole building 

fossil fuel consumption represented by 

the retrofitted system or component. 

The applicable table value would be 

multiplied by this percentage to arrive 

at the maximum allowable energy use of 

the retrofitted system or component. 

DOE requests comment on this 

approach, as well as comment on other 

approaches that could be used to 

determine the requirement for system 

and component level retrofits. 

9. Other 

Two additional comments were 

submitted that do not fit into one of the 

scope subcategories. EEI asked how 

mixed-use buildings would be treated. 

(EEI, Public Meeting Transcript, No. 7 at 

p. 19) The proposed rule required 

agencies to perform a building areaweighted average in order to determine 

the appropriate baseline for mixed-use 

buildings. 75 FR 63407. The specific 

method to do this is found in section 

433.200(d)(3) of the proposed rule. 

NPGA thought a paradox existed in 

that the required reductions identified 

for years preceding FY 2030 may change 

and yet fossil fuel energy consumption 

reductions may not apply to Federal 

agencies until the regulations are 

finalized. (NPGA, No. 23 at p. 4) DOE 

notes that the specific percentage 

reduction requirements by fiscal year 

are defined by statute and cannot be 

changed by DOE. In the NOPR, DOE 

stated that DOE intends to revise the 

maximum allowable fossil fuelgenerated energy consumption tables, 

which are based on the required 

percentage reductions in the statute, to 

adjust for climate. 75 FR 63408. DOE 

has done this in today’s rulemaking. 

DOE acknowledges that the specific 

means to obtain the FY 2030 goal are 

not known today, but believes that 

advances in design practices and 

technology over the next 20 years will 

make the requirement increasingly 

attainable. 

D. Methodology To Determine 

Compliance 

Once the appropriate baseline fossil 

fuel-generated energy consumption has 

been determined for commercial 

buildings and multi-family high-rise 

residential buildings and low-rise 

residential buildings, this rule provides 

the statutorily-mandated reduction 

requirements to those baseline 

consumption values. As noted in the 

NOPR, rather than setting standards by 

only listing the percentage reductions 

required, DOE has decided to deduct the 

statutorily-required percent reductions 

from the CBECS and RECS baselines to 

establish the maximum allowable fossil 

fuel-generated energy consumption for 

each building type and climate zone. 75 

FR 63408. Establishing today’s standard 

as an absolute value should simplify 

agency use and interpretation of this 

proposed rule. 

1. Whole Building Simulation 

To determine energy use in the 

proposed design, DOE proposed in the 

NOPR that the fossil fuel-generated 

energy consumption of a proposed new 

Federal building or major renovation of 

a Federal building be estimated using 

the Performance Rating Method found 

in Appendix G of ANSI/ASHRAE/

IESNA Standard 90.1–2004 for 

commercial and multi-family high-rise 

residential buildings, and the IECC 2004 

Supplement for low-rise buildings. 75 

FR 63409. Because of the complexity 

involved in estimating fossil fuelmstockstill on DSK4VPTVN1PROD with PROPOSALS2

Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 61709 

generated energy consumption, this 

requirement would effectively require 

the use of a whole building simulation 

tool, which can be difficult and increase 

cost. As a result, DOE invited comments 

on alternatives to a whole building 

simulation. 

The ICC endorsed the use of the 

Simulated Performance Alternative 

found in IECC 2004, but suggested that 

the rule reference more recent versions. 

(ICC, No. 11 at p. 3) NRDC and NIBS 

commented that DOE should work with 

the energy modeling industry to 

standardize modeling assumptions and 

results provided by the simulation 

programs, and eventually certify 

modeling programs and users. (NRDC, 

No. 14 at p. 16; NIBS, No. 12 at p. 2) 

The International District Energy 

Association (IDEA) was concerned that 

the Performance Rating Method in 

Appendix G of ASHRAE Standard 90.1– 

2004 is based on energy costs, as it 

modifies the Energy Cost Budgeting 

Method in Chapter 11 of ASHRAE 

Standard 90.1. (IDEA, No. 21 at p. 2) 

DOE proposes that the estimated fossil 

fuel use of the proposed building be 

calculated in accordance with the 

provisions relating to ‘‘the proposed 

design’’ in the Performance Rating 

Method in Appendix G of ASHRAE 

90.1–2007. Provisions in Appendix G 

relating to the generation of a baseline 

or the Energy Cost Budgeting Approach 

are irrelevant to today’s rule. 

As stated in the NOPR, the 

Performance Rating Method in 

Appendix G of ASHRAE 90.1 and the 

IECC Simulated Performance 

Alternative are already prescribed at 10 

CFR parts 433 and 435 for determining 

whether covered new Federal buildings 

meet the required energy efficiency 

standards in those sections. In addition, 

whole building simulations are already 

performed today for most medium- and 

large-sized buildings to accurately 

estimate loads for purposes of sizing 

HVAC equipment and to evaluate 

buildings under voluntary advanced 

building programs. Based on this and 

the comments received, DOE is not 

changing this approach in today’s rule. 

On August 10, 2011, DOE published 

a final rule updating Federal energy 

efficiency baseline standards in 10 CFR 

part 435 for low-rise residential 

buildings to the 2009 IECC. 76 FR 

49279. On July 19, 2013, DOE published 

a final rule updating the Federal energy 

efficiency baseline standard in 10 CFR 

part 433 for commercial and multifamily high-rise buildings to ASHRAE 

Standard 90.1–2010. 78 FR 40945. DOE 

also acknowledges the need to improve 

work with the energy modeling industry 

to standardize assumptions and certify 

programs and users, but such 

collaboration is outside the scope of this 

rule. DOE and ENERGY STAR, drawing 

upon their experience with EnergyPlus 

Software and Target Finder, 

respectively, are participating with the 

Commercial Energy Services Network 

(COMNET, www.comnet.org) to develop 

energy performance modeling 

guidelines and procedures. 

DOE recognizes that the whole 

building approach likely is not 

appropriate for major renovations that 

are limited to system or component 

level retrofits. As noted previously, for 

major renovations that are less than 

whole building renovations (i.e., system 

or component level retrofits) DOE is 

proposing establishing the maximum 

allowable fossil fuel consumption in 

fiscal years 2013 through 2029 based on 

the percentage of whole building 

consumption represented by retrofitted 

system or component. The applicable 

table value would be multiplied by this 

percentage value to arrive at the 

maximum allowable fossil fuel 

consumption of the retrofitted system or 

component. For determining 

compliance, DOE is proposing basing 

the subject fossil fuel-generated energy 

consumption on the system or 

component as retrofitted. This would 

require the design engineer to estimate 

the energy consumption of the systems 

or components as renovated. 

2. Off-Site and On-Site Renewable 

Energy and Renewable Energy 

Certificates 

The NOPR stated that in order to meet 

the fossil fuel-generated energy 

consumption reduction requirements 

mandated by ECPA, fossil fuelgenerated energy consumption could be 

offset with the use of renewable energy. 

75 FR 63410. DOE also recognized that 

there may be physical limitations to the 

amount of on-site renewable electricity 

that can be produced, and it may be 

more affordable for an agency to 

purchase electricity from centralized 

renewable energy-generation facilities. 

DOE was concerned, however, that the 

purchase of renewable energy-generated 

electricity via Renewable Energy 

Certificates or direct Power Purchase 

Agreements (PPAs) may simply reduce 

the amount of renewable energy 

available for purchase by other entities 

within the U.S. and may not necessarily 

lead to an overall decrease in domestic 

fossil fuel-generated energy 

consumption. In addition, DOE was 

concerned that the purchase of 

Renewable Energy Certificates does not 

involve a long-term binding agreement 

and can readily be cancelled. DOE 

indicated in the NOPR that it was 

leaning toward allowing direct PPAs 

with a long-term contract to count 

toward meeting the fossil fuel-generated 

energy consumption reduction 

requirements, but not allowing 

Renewable Energy Certificates. 75 FR 

63410. 

Numerous comments were submitted 

about Renewable Energy Certificates 

and PPAs. The Renewable Energy 

Markets Association (REMA) supported 

the use of Renewable Energy Certificates 

and stated that as demand outstrips 

supply, more renewable energy 

generation will be built. (REMA, No. 20 

at pp. 1–2) REMA also indicated that the 

purchase of Renewable Energy 

Certificates is allowed to meet other 

Federal requirements, and commented 

that PPAs should be allowed only if the 

renewable energy attributes (the 

associated Renewable Energy 

Certificates) are purchased by the 

agency as well. (REMA, No. 20 at pp. 1– 

2) 

NAD and NREC encouraged the use of 

Renewable Energy Certificates to 

stimulate demand for renewable energy 

generation. (NAD, No. 19 at p. 2; NREC, 

No. 28 at p. 2) EEI recommended use of 

both Renewable Energy Certificates and 

PPAs with a minimum contract term. 

(EEI, No. 10 at p. 8) The National 

Nuclear Security Administration 

(NNSA) commented that Renewable 

Energy Certificates should be allowed if 

the renewable energy was generated on 

Federal property or, from any source, if 

the contract is for a period of five years 

or greater. (NNSA, No. 9 at p. 1) DHHS– 

IHS–OEHE was concerned that unless 

the availability of renewable energy 

sources from the grid is allowed and 

expanded, these fossil fuel reduction 

goals will not be met, and therefore 

supported the use of Renewable Energy 

Certificates and PPAs. (DHHS, No. 24 at 

pp. 5–6) 

GSA expressed concern about the 

requirement for long-term contracts, and 

indicated that GSA cannot procure 

renewable energy under PPAs in a 

manner that would make them 

economical due to their 10 year utility 

contracting authority under Federal 

Acquisition Regulation Part 41. (GSA, 

No. 26 at p. 2) NIBS strongly 

discouraged the utilization of PPAs or 

Renewable Energy Certificates as a 

mechanism for meeting such 

requirements, stating that it would 

hamper interest in energy efficient 

design. (NIBS, No. 12 at p. 3) 

AGA opposed the use of Renewable 

Energy Certificates and PPAs, stating 

there is no guarantee that they will 

contribute to fossil fuel reductions. 

(AGA, No. 16 at p. 5) AGA was also 

concerned that, because the statute does 

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61710 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

not address efficient use of energy in 

Federal buildings, the rule encourages 

potentially wasteful use of renewables 

and nuclear-generated electric energy. 

(AGA, No. 16 at p. 1) AGA and GTI 

commented that, if PPAs are allowed, 

the rule should also allow the purchase 

of natural gas from renewable sources as 

well, such as biomethane, biopropane, 

biofuel oil and biomass. (AGA, No. 16 

at p. 5; GTI, No. 22 at p. 14) APGA 

commented that DOE should not allow 

contracts to deliver off-site renewable 

energy to count towards on-site fossil 

fueled energy reductions because such 

contracts cannot insure that only nonfossil-fueled electrons are delivered to 

Federal facilities. (APGA, No. 17 at p. 6) 

In addition to Renewable Energy 

Certificates and PPAs, DOE received 

several comments from DOD about 

allowing agencies to use an agency 

portfolio approach for renewable 

electricity produced off-site by the 

agency. These commenters stated that 

they encourage investment in renewable 

energy where it is most cost-effective, 

which is often across a portfolio rather 

than on a building-by-building basis. 

(DOD–OUSOD, No. 25A at p. 1; DOD– 

N, No. 25B at p. 1; DOD–AF, No. 25C 

at p. 4) 

DOE proposes to permit a deduction, 

subject to limitation, for ‘‘on-site 

renewable electricity generation’’ and 

for ‘‘off-site renewable electricity 

generation’’ (e.g., Renewable Energy 

Certificates, agency portfolio renewable 

energy production and off-site PPAs). 

Today’s proposal specifies that ‘‘onsite renewable electricity generation’’ is 

the amount of electricity to be 

consumed by the subject building that is 

contributed by renewable electricity 

generated at the Federal site or facility 

on which the subject building will be 

located. Thermal energy produced from 

a renewable energy source reduces a 

building’s load and would be treated the 

same as energy efficiency for purposes 

of this rule. Federal agencies that choose 

to use on-site renewable electricity 

generation would not be permitted to 

transfer the environmental attributes of 

the on-site generation. In other words, 

agencies would not be permitted to 

convey the REC associated with the onsite project to an off-site project. 

In the proposed regulation Federal 

agencies are given credit for on-site 

renewable energy via the renewable 

energy and CHP electricity deduction in 

the calculation for the fossil fuelgenerated energy consumption of a 

proposed design. On-site renewable 

energy would be subtracted from the 

proposed design’s annual site electrical 

consumption. The building designer 

typically uses site electrical energy 

consumption when calculating the 

building’s fossil fuel-generated energy 

consumption. Deducting renewable 

energy generation from the proposed 

design’s site electricity consumption 

before adjusting the electricity 

consumption for the electricity source 

energy factor and the fossil fuel 

generation factor would ensure that 

renewable energy generation is given 

appropriate credit for reducing fossil 

fuel-generated energy consumption. 

Biomethane, biopropane, biofuel oil, 

and biomass used on-site, to the extent 

they can be identified and accounted 

for, would not be included in direct 

fossil fuel energy consumption and 

would qualify as a renewable energy 

deduction if used to generate electricity. 

DOE understands agencies’ interest in 

allowing the use of off-site renewable 

energy resources, including 

environmental attributes represented by 

Renewable Energy Certificates, to help 

meet the requirements. It may be 

difficult to achieve the required fossil 

fuel reductions without use of 

renewable resources, and on-site 

renewable resources may not be feasible 

or available in many cases. Thus, use of 

off-site renewable electricity resources 

and/or Renewable Energy Certificates, 

may be necessary. In addition, with offsite renewable resources, agencies may 

be better able to optimize production or 

reduce costs because of resource 

availability, economies of scale, and 

other factors. 

While DOE acknowledges the benefits 

of off-site renewable energy, DOE has 

some concerns with allowing the use of 

off-site renewable energy, including 

Renewable Energy Certificates, without 

limitation. DOE is concerned that 

energy representing a Renewable Energy 

Certificate that is not under substantial 

control of the Federal agency claiming 

the REC because ECPA, as amended, 

requires that each Federal agency meet 

the reduction requirements for each of 

its Federal buildings. DOE is also 

concerned about RECs being not 

properly tracked and accounted for, and 

that a REC may not represent new or 

additional capacity. Additional 

administrative and accounting 

complexity could detract from agency 

compliance. 

Therefore, under this SNOPR, 

agencies would be required to ensure 

that any renewable energy resources 

used to meet the rule represent new 

capacity and are not drawn from 

existing resources, and the renewable 

energy generation could not be used to 

offset the fossil fuel-generated energy 

consumption of more than one design. 

DOE believes that requiring off-site 

generation to represent new capacity 

would be consistent with the statutory 

goal of reducing total fossil fuel 

consumption. 

DOE acknowledges that increased 

demand for Renewable Energy 

Certificates, whether from the Federal 

sector or elsewhere, will send a market 

signal to develop more renewable 

resources rather than reduce the amount 

of Renewable Energy Certificates 

available for other entities. DOE also 

recognizes that many commenters 

support the use of Renewable Energy 

Certificates as a compliance path for this 

SNOPR. 

To receive credit against the reduction 

targets under any of the above scenarios, 

an agency would be required to ensure 

that the renewable energy 

environmental attributes are dedicated 

to meeting the fossil fuel reduction 

requirements of the subject new or 

renovated building and not used 

elsewhere. The renewable energy 

environmental attributes would need to 

be retained by the agency. 

Environmental attributes represent the 

general environmental benefits of 

renewable generation such as air 

pollution avoidance (e.g., sulfur 

dioxide, nitrogen oxide, methane, 

carbon dioxide). The exact quantity of 

the environmental benefit (e.g. pounds 

of emission reductions of a given 

pollutant) is not indicated by an 

environmental attribute, though it can 

be quantified separately through 

engineering estimates. The 

environmental attribute represents all 

environmental benefits provided by 

renewable energy generation. 

DOE recognizes that the December 5, 

2013 ‘‘Presidential Memorandum— 

Federal Leadership on Energy 

Management’’ (‘‘Presidential 

Memorandum) prioritizes Federal 

agency renewable energy sources for 

purposes of meeting the renewable 

energy consumption goals in the 

Presidential Memorandum. Federal 

agencies should consider the 

prioritization in the Presidential 

Memorandum when determining how 

they would comply with this proposed 

rule. 

DOE requests additional comment on 

the issues related to the use of off-site 

renewable energy generation, including 

Renewable Energy Certificates, in 

complying with the proposed rule. 

Specifically, DOE is also concerned 

about, and requests comment on, how 

the current state of information and 

markets would allow Federal agencies 

to reliably trace a Renewable Energy 

Certificate to an actual reduction in 

fossil fuel use. 

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1U.S. Environmental Protection Agency. 

ENERGY STAR Performance Ratings Methodology 

for Incorporating Source Energy Use. March, 2011. 

3. Use of Source Energy 

The NOPR stated that CBECS and 

RECS data does not provide data on 

total fossil fuel-generated energy 

consumption in buildings; however, 

fossil fuel-generated energy 

consumption can be calculated from 

CBECS and RECS data by using the 

following equation: 

Fossil fuel-generated energy 

consumption = Direct consumption 

of fossil fuels in the building plus 

the amount of electrical energy 

consumption that is generated from 

fossil fuels. 75 FR 63407. 

In order to determine the amount of 

electricity consumed in the building 

that is generated from fossil fuels, it is 

necessary to convert site electricity to 

source energy. Source energy is the total 

amount of energy used at the site, 

including the energy used to generate 

and deliver electricity to the site. Site 

electricity is converted to source energy 

by multiplying site electricity by the 

electricity source energy factor. For 

purposes of today’s rule, source energy 

is further adjusted to account for the 

portion of electricity generated from 

fossil fuels by multiplying source energy 

times the fossil fuel generation factor 

and adding direct consumption of fossil 

fuels in the building. DOE did not ask 

for comment on this issue except as to 

whether the calculation could be 

effectively used for on-site combined 

heat and power systems (discussed 

later). Nonetheless, DOE received 

several comments concerning the use of 

source energy rather than site energy. 

NREC commented that site energy, 

which can be easily measured and 

verified, is the only correct method that 

can be used. (NREC, No. 28 at pp. 1–2) 

EEI stated that the use of source energy 

contradicts the 2007 final rule on energy 

efficiency performance standards for 

new Federal buildings, and urged DOE 

to use site energy. (EEI, No. 10 at p. 2) 

EEI stated that the use of source energy 

contradicts the conclusion of ASHRAE’s 

Technology Council Ad Hoc Committee 

on Energy Targets, where ASHRAE, the 

American Institute of Architects (AIA), 

the U.S. Green Building Council 

(USGBC), and the Illuminating 

Engineering Society of North America 

(IESNA) agreed to use site energy as the 

metric for net-zero energy buildings. 

(EEI, No. 10 at pp. 4–5) EEI also claimed 

that the use of source energy will make 

the reduction targets unattainable. (EEI, 

No. 10 at p. 7) Finally, EEI argued that 

site energy metrics would eliminate any 

game playing or distorted results from 

the use of on-site renewable energy or 

CHP systems. (EEI, No. 10 at p. 6) 

AGA commented in support of DOE’s 

proposed use of source energy. Source 

energy, AGA stated, is essential to 

calculating fossil fuel use in both direct 

primary energy use and electric 

generation, and is consistent with the 

recommendations of the National 

Research Council on energy efficiency 

standards and measurement approaches, 

EPA’s ENERGY STAR for Commercial 

Buildings, and national consensus 

standards such as the Green Buildings 

Initiative, ANSI standard and proposed 

IgCC Version 2.0 model code. (AGA, No. 

16 at pp. 2–3) AGA recommended, for 

clarity, that the regulatory definitions 

include ‘‘source’’ energy. (AGA, No. 16 

at p. 4) 

GTI supported the use of source 

energy. They commented that site 

energy incentivizes lower first cost 

technologies and inadvertently 

promotes fuel switching away from 

more full-fuel-cycle energy efficient and 

lower greenhouse gas-emitting 

technologies. (GTI, No. 22 at pp. 5, 14) 

GTI also commented that the proposed 

DOE definition of primary energy only 

considers the energy required to convert 

fuels to electricity at the power plant, 

not the fossil fuel energy consumption 

associated with extraction, processing, 

transportation, or distribution of fuels 

used directly in buildings. (GTI, No. 22 

at p. 2) GTI, APGA, and NPGA 

commented that DOE’s proposed source 

energy metrics should be replaced with 

full-fuel-cycle information as DOE has 

decided to use in certain analyses the 

Department conducts when setting 

energy conservation standards for 

consumer products and commercial 

equipment. (see Docket No. EERE– 

2010–BT–NOA–0028, RIN 1904–AC24, 

Statement of Policy for Adopting FullFuel-Cycle Analyses into Energy 

Conservation Standards Program.) (GTI, 

No. 22 at p. 15; APGA, No. 17 at p. 3; 

NPGA, No. 23 at p. 3) GTI offered DOE’s 

Greenhouse Gases, Regulated Emissions, 

and Energy Use in Transportation 

(GREET) model as the primary energy to 

full-fuel-cycle conversion factor 

methodology, and its Source Energy and 

Emissions Analysis Tool (SEEAT) as its 

underlying methodology for 

consideration. (GTI, No. 22 at pp. 5–6) 

DOE continues to believe that source 

energy is the correct metric to use for 

this rulemaking, for reasons cited in the 

NOPR and discussed at the beginning of 

this section. Because this rule relates to 

fossil fuel reductions specifically (rather 

than energy reductions generally) and 

not all electricity is produced from 

fossil fuels, it was necessary to go 

beyond site energy and look at source 

energy to accurately quantify fossil fuel 

consumption for electricity. For this 

reason, DOE adjusted site energy from 

electricity by the percentage of 

electricity produced from fossil fuels 

(fossil fuel generation factor) and the 

fuel conversion, transmission, and 

distribution losses (electricity source 

energy factor) to determine the fossil 

fuel-generated energy consumption from 

electricity. The use of source energy is 

consistent with the approach EPA uses 

for ENERGY STAR Portfolio Manager. 

EPA has determined that source energy 

is the most equitable unit of evaluation 

for fossil fuels.1 Source energy forms the 

basis for the maximum allowable fossil 

fuel-generated consumption reductions 

in Tables 1–4 in Appendix A. 

Regarding EEI’s concern that source 

energy would distort the results or cause 

game-playing with on-site renewable 

energy or CHP, this SNOPR gives on-site 

renewable energy generation the same 

benefit as improved energy efficiency. 

Under either scenario, the non-fossil 

fuel generation does not count toward 

the proposed design site electricity 

consumption. Similarly, any electricity 

produced by a CHP does not count 

toward the proposed design site 

electricity consumption. Regarding EEI’s 

contention that source energy will make 

the reductions unattainable, DOE notes 

that if the reductions are not attainable 

via energy efficiency alone, Federal 

agencies may choose to use a renewable 

energy deduction. 

DOE appreciates the comments from 

GTI and others about using a full-fuelcycle approach with the GREET or 

SEEAT models, but believes the 

methods used in this rule are 

appropriate to address the statutory 

requirements. The maximum allowable 

fossil fuel-generated energy 

consumption targets in today’s rule 

incorporate losses back to the power 

plant and the pipeline. However, DOE 

does not believe it is necessary to go 

further upstream in its analysis for 

purposes of this rule. Any losses that 

occur further upstream than the power 

plant or pipeline would be very difficult 

to substantiate with precision. 

4. Fuel Conversion Efficiency 

In the NOPR, DOE proposed that the 

electricity source energy factor would be 

based on the average utility delivery 

ratio in Table 6.2.4 of the 2010 DOE 

Building Energy Data Book (See http:// 

buildingsdatabook.eere.energy.gov). 75 

FR 63410. The ratio accounts for fuel 

conversion losses to produce electricity, 

as well as transmission and distribution 

losses. DOE used the electricity source 

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energy factor of 0.316 from the most 

recent year data was available, 2008. 

Recent updates in the 2011 DOE 

Buildings Energy Databook (see http://

buildingsdatabook.eere.energy.gov) 

indicate that the current value in most 

current historical value in 2010 was 

0.323, with a predicted gradual increase 

to 0.340 by 2035. 

EEI commented that assuming a 33 

percent conversion efficiency of fossil 

fuels to electricity will guarantee 

miscalculations, especially in areas with 

more renewable forms of electric 

generation. (EEI, No. 10 at p. 3) For 

example, the conversion efficiency of 

natural gas generation built over the last 

10–15 years, has a thermal efficiency in 

the 55 to 57 percent range. (EEI, No. 7 

Public Meeting Transcript, at p. 29; EEI, 

No. 10 at p. 3) AGA commented that 

DOE should not impose barriers to use 

of end-use fuel choice as a means of 

achieving target reductions. (AGA, No. 

16 at p. 3) APGA and GTI commented 

that since generation efficiency and fuel 

mix will not materially change between 

now and 2030, it will be critical to 

reduce purchased electricity 

consumption significantly to help 

achieve required targets. (APGA, No. 17 

at p. 4; GTI, No. 22 at p. 2) 

APGA commented that the proposed 

definition of primary energy is 

incomplete in that it only considers the 

energy required to convert fuels to 

electricity at the power plant, not 

primary energy resources necessary to 

obtain and transport the fuel to the 

power plant nor fossil fuel energy 

consumption associated with extraction, 

processing, transportation, or 

distribution of fuels used directly in 

buildings. (APGA, No. 17 at p. 3) APGA 

also commented that renewable 

generation requires fossil fueled backup, 

which will frustrate the 100 percent 

elimination of fossil fuel-generated 

energy consumption. (APGA, No. 17 at 

p. 6) DOD–N commented that the 

thermal efficiency factor has been 

omitted from the proposed calculation. 

(DOD–N, No. 25B at p. 3) IDEA 

commented that the definition of 

electricity source energy factor appears 

to be incorrect and should refer to 

‘‘primary fuel’’ rather than ‘‘primary 

electrical energy.’’ (IDEA, No. 21 at p. 2) 

First, DOE notes that thermal 

efficiency is embedded as part of 

electricity source energy factor, as well 

as the other fuel source energy 

multiplier. Further, DOE does not share 

the concern that the use of fossil fuels 

for backup power by a utility when 

intermittent renewable energy is not 

available will frustrate the 2030 goal of 

100 percent reduction in the use of 

fossil fuel-generated energy. Compliance 

with the requirements leading up to 

2030 (i.e., 55 percent in FY 2010–2014, 

65 percent in FY 2015–2019, 80 percent 

in FY 2020–2024, and 90 percent in FY 

2025–2029) is determined on an annual 

basis, and DOE believes it is reasonable 

to continue to apply that approach to 

the 100 percent reduction requirement 

after 2030. Even though fossil fuels may 

be used by a utility as backup power 

during certain times of the day or year 

when a renewable resource is not 

available, surplus renewable energy 

provided at other times will offset fossil 

fuel consumption for use elsewhere. 

In the NOPR, ‘‘primary electrical 

energy use’’ was a term used only in the 

definitions of ‘‘electricity source energy 

factor’’ and ‘‘fossil fuel consumption for 

electricity generation.’’ The latter term 

is not included in the today’s rule, and 

the definition of ‘‘electricity source 

energy factor’’ has been modified and no 

longer refers to ‘‘primary electrical 

energy use,’’ eliminating the need to 

redefine the term. 

The definition of ‘‘electricity source 

energy factor’’ has been simplified in 

this proposed rule. Electricity source 

energy factor is defined as the multiplier 

used to account for fuel conversion 

losses and transmission and distribution 

losses associated with electricity 

generated from fossil fuels. For this 

proposed rule, the factor to be used is 

0.316. This represents the average 

efficiency of fossil fuel generation in 

2008 as described in the NOPR. The 

electricity source energy factor was used 

to help convert CBECS and RECS site 

energy data to source energy in Tables 

1–4 of Appendix A as described in the 

preamble section on source energy. 

EEI argued that it is inconsistent to 

use estimates for going ‘‘upstream’’ for 

electricity but not for direct use of fossil 

fuels. (EEI, No. 10 at p. 6) DOE has 

added an ‘‘other fuels source energy 

multiplier’’ to the equation for various 

fuels other than electricity to determine 

the fossil fuel-generated energy 

consumption of the proposed building. 

These multipliers were used by ORNL 

when converting the CBECS site energy 

use data to source-based fossil fuel 

generated energy consumption, so the 

multipliers also need to be included in 

the calculation for the proposed 

building. The multipliers account for 

distribution and other losses that occur 

between the time the fuel provider takes 

delivery and final delivery to the 

building site as measured at the meter, 

and provides consistency with the 

adjustment for electricity. The ‘‘other 

fuels source energy multipliers’’ do not 

include well-head, mine-mouth, or bulk 

fuel transportation losses. 

5. On-Site Energy Generation From 

Natural Gas 

The NOPR indicated DOE’s interest in 

the effect of the fossil fuel-generated 

energy consumption reduction 

requirements on distributed energy 

technologies that provide onsite 

electrical generation from natural gas, 

such as combined heat and power (CHP) 

systems to generate both heat and 

electricity. A building with a CHP 

system could potentially be an all-gas 

building in terms of utility purchases 

and would, therefore, be required to 

reduce natural gas consumption in 

accordance with the fossil fuelgenerated energy consumption 

reduction requirements. DOE indicated 

its interest in minimizing the penalty or 

not discourage the use of on-site CHP 

systems, within the limits of the 

statutory language. DOE invited 

comments on how appropriate credit 

may be given for CHP systems through 

the compliance determination 

methodology. 75 FR 63410. 

DOE received several comments 

related to distributed energy 

technologies. IDEA commented that 

district heating systems may use a mix 

of fossil fuels and renewable fuels and 

may also supply electricity to the power 

grid using combined heat and power 

(CHP), and that the rule does not 

accurately capture the efficiency of 

district energy. (IDEA, No. 21 at p. 2) 

EEI disagreed that on-site CHP has 

inherent efficiencies compared to 

purchased electricity; CHP can be very 

efficient, but it is not always more 

efficient than combined-cycle 

generation. (EEI, Public Meeting 

Transcript, No. 7 at pp. 53–54) EEI also 

commented that one of the issues is the 

on-site production of energy, whether it 

is electric energy, thermal energy or 

fossil fuel energy. (EEI, Public Meeting 

Transcript, No. 7 at p. 51) On a related 

issue pertaining to on-site generation 

more broadly, EEI commented that the 

use of on-site renewable energy does not 

change the energy efficiency of the 

building, it only moves the source of 

energy closer to the building. (EEI, No. 

10 at p. 5) 

NIBS commented that the logic 

behind singling out CHP systems seems 

flawed because their efficiency is 

already accounted for. (NIBS, No. 12 at 

p. 3) AGA commented that the direct 

use of natural gas in Federal buildings 

should be preserved as an option where 

installation of natural gas applications 

would both reduce fossil fuel-generated 

energy consumption and increase 

energy efficiency. (AGA, No. 16 at p. 2) 

NAD commented that fuel cells can 

operate on natural gas until hydrogen 

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fuel storage becomes feasible, and 

suggested they should be addressed like 

CHP systems. (NAD, No. 19 at p. 3) AGA 

also commented that the calculation 

methodology correctly provides credit 

for the installation of on-site combined 

heat and power (CHP) systems, and 

suggested that DOE should promote 

these technologies within Federal 

buildings within the timeframes for 

which fossil fuel use is still permitted 

(i.e., before FY 2030). (AGA, No. 16 at 

p. 5) 

DHHS–IHS–OEHE supported not 

penalizing or discouraging the use of 

on-site sources. (DHHS, No. 24 at p. 5) 

DOD–N commented that distributed 

electrical power produced on-site 

should be credited with fossil fuel use 

avoidance for electricity sold into the 

grid. (DOD–N, No. 25B at p. 5) IDEA 

recommended the addition of eight 

definitions and amendment of the 

definition of ‘‘Proposed Design Fossil 

Fuel-Generated Energy Consumption’’ 

and the definition of ‘‘Direct Fossil Fuel 

Consumption.’’ (IDEA, No. 21 at pp. 3– 

4) 

Based on the comments received and 

a technical review of the issues raised, 

DOE proposes specificity on how CHP 

and district heating systems should be 

considered. DOE believes that this 

specificity adds clarity and addresses 

the comments submitted. Under DOE’s 

proposal for district heating or cooling 

systems using fossil fuel as the source, 

the fossil fuel-generated energy 

consumption would be determined by 

adjusting the building load for the plant 

fuel conversion efficiency and estimated 

distribution losses as reflected in the 

‘‘Other Fuels Energy Source Multiplier.’’ 

If a non-fossil fuel is used as the sole 

source (e.g., geothermal) of energy for 

the district heating system, there would 

be no contribution to fossil fuelgenerated energy consumption. 

For CHP district heating systems, the 

electricity attributed to the proposed 

building would be determined by 

multiplying the building’s pro-rated 

share of the total delivered heat from the 

system times the total electricity 

produced by the CHP system. For CHP 

systems serving only one building, fossil 

fuel consumption of the CHP system 

would be added to the direct fossil fuel 

consumption in Equation 1. Because it 

is produced from waste heat, the 

amount of electricity produced by either 

the CHP system serving a single 

building or a CHP district heating 

system, as determined above, would be 

deducted from the proposed design site 

electricity in Equation 1 under the 

renewable energy and CHP deduction. 

6. Additional Review 

Because of the complexity of some of 

the issues presented in the NOPR, two 

comments were submitted requesting an 

additional opportunity to review the 

rule before it is finalized, especially 

regarding the issues of climate zones 

and regional considerations. (NPGA, No. 

23 at p. 5; DHHS, No. 24 at p. 1) This 

SNOPR provides an opportunity for 

additional comment on the proposed 

rulemaking, including the issues of 

climate zones and regional 

considerations. 

7. Other 

DOE received a few additional 

comments relating to methodology that 

did not fit into one of the categories 

above. AGA and APGA asked DOE not 

to achieve reductions by encouraging 

Federal agencies to only use electricity 

supplied by nuclear energy rather than 

renewable energy. (AGA, No. 16 at p. 2; 

APGA, No. 17 at p. 6) The American 

Wood Council (AWC) commented that 

DOE should reference not only LEED as 

a tool for energy reductions, but also 

Green Globes and the National 

Association of Home Builders (NAHB) 

Standard. (AWC, No. 18 at p. 2) DOE 

notes that all nuclear power is produced 

by regulated utilities and there is no 

mechanism for utility customers to get 

credit for nuclear-generated electricity 

under today’s rule. There is currently no 

way for a non-utility to purchase 

nuclear-generated electric power as 

there is for electricity produced from 

renewable energy sources under 

arrangements like PPAs or RECs. 

However, DOE does recognize that onsite deployment of small modular 

reactors (SMRs) may be possible in the 

future and that some agencies may be in 

a position to rely on SMRs for energy. 

DOE requests comment on how the 

potential future use of on-site SMRs 

could be addressed in the final rule. 

DOE acknowledges that, to the extent 

LEED is referenced as a possible 

resource for fossil fuel reductions, it 

should have also referenced other green 

building rating systems (GBRS) such as 

Green Globes and the NAHB Green 

Standard. Although DOE has added 

these GBRS in the Reference Resources 

section below, DOE notes that these 

systems do not provide specific 

guidance that could help designers 

achieve the level of reductions called for 

in today’s rule. 

E. Petitions for Downward Adjustment 

Upon petition by an agency subject to 

the statutory requirements, ECPA 

permits DOE to adjust the applicable 

numeric fossil fuel-generated energy 

consumption percentage reduction 

requirement downward with respect to 

a specific building, if the head of the 

agency designing the building certifies 

in writing that meeting the requirement 

would be technically impracticable in 

light of the agency’s specified functional 

needs for the building and DOE concurs 

with the agency’s conclusion. (42 U.S.C. 

6834(a)(3)(D)(i)(II)) ECPA further directs 

that such an adjustment does not apply 

to GSA. In today’s rulemaking, DOE 

proposes a downward adjustment 

process for new construction and 

separate processes for major renovations 

that are whole building renovations and 

for major renovations that are limited to 

system or component level renovations. 

1. Technical Impracticability and Cost 

as a Basis for Downward Adjustment 

The NOPR noted that the downward 

adjustment provision of ECPA does not 

expressly include cost considerations, 

but that DOE was considering 

incorporating cost considerations as part 

of a ‘‘technically impracticable’’ 

determination. Cost would not be the 

sole rationale for a determination of 

‘‘technically impracticable,’’ but high 

costs could be part of the evaluation. 75 

FR 63412. DOE invited comments on 

what kind of technical impracticability 

would constitute grounds for a petition 

for downward adjustment. 

DOE received several comments about 

allowing costs (or cost-effectiveness) as 

grounds for a petition for downward 

adjustment. DOD–OUSOD and DOD–AF 

commented that life-cycle costeffectiveness should be the foundation 

for any finding of ‘‘technically 

impracticable.’’ (DOD–OUSOD, No. 25A 

at p. 1; DOD–AF, No. 25C at p. 7) NIBS 

commented that any petition invoking 

cost as a basis for technical 

impracticability should be based solely 

on life-cycle costs, not first costs. (NIBS, 

No. 12 at p. 4) AGA recommended that 

petitions should be ‘‘technologically 

feasible and economically justified’’ as 

the term is used in ECPA. It also 

recommended that cost-effectiveness be 

based on life-cycle cost-effectiveness of 

the relevant energy reduction measures. 

(AGA, No. 16 at p. 3) 

NRDC commented that DOE’s 

proposal to use ‘‘cost considerations’’ as 

part of the determination of what is 

‘‘technically impracticable’’ is contrary 

to what NRDC reads as EISA’s plain 

language, and that DOE should not use 

cost impacts in any way to limit the 

application of the rule. (NRDC, No. 14 

at p. 8) NRDC stated that by requiring 

these reductions in fossil fuel use 

regardless of costs, Congress was 

advancing a broader goal that goes 

beyond the reduction of fossil fuel use 

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by Federal buildings, specifically that 

the Federal government will lead by 

example. (NRDC, No. 14 at p. 9) 

DOE understands the concern that 

achieving the reductions required by 

this rulemaking, especially in the outyears, could be difficult and expensive. 

DOE also appreciates the concern that 

allowing costs as the basis for a 

downward adjustment petition could 

result in many agencies requesting a 

petition simply based on cost. The 

statutory provision concerning a 

petition for downward adjustment states 

that agencies must demonstrate that 

meeting the reductions would be 

technically impracticable ‘‘in light of 

the agency’s specified functional needs 

for the building,’’ and does not mention 

cost. As a result, DOE does not believe 

that cost itself could be grounds for a 

downward adjustment. However, DOE 

believes that it would be appropriate 

and permissible to consider a petition 

for downward adjustment based on the 

impact to an agency’s functional needs 

for the building of achieving the fossil 

fuel-generated energy consumption 

reductions. DOE recognizes that an 

agency’s functional needs for a building 

may be inextricably linked with costs, 

but cost should not be the primary basis 

for a petition for downward adjustment. 

2. Bundling of Petitions 

The bundling of petitions was not an 

issue addressed in the NOPR. However, 

three comments were submitted on 

whether an agency could submit a 

single petition for downward 

adjustment for multiple agency 

buildings of the same building type, 

rather than requiring a petition for each 

building separately, to minimize agency 

burden. (DOD–AF, No. 25C at p. 8; 

DOD–OUSOD, No. 25A at p. 1; DHHS, 

No. 24 at p. 6) 

DOE agrees that ‘‘bundling’’ of 

petitions by an agency for buildings of 

the same building type and function 

would help streamline the petitioning 

process and relieve the burden on 

agencies and DOE by avoiding 

duplication of effort. Although DOE 

would require an individual petition 

containing the information required 

under this proposed rule for each 

building, if the petitions for similar 

buildings are submitted jointly, a 

petition may reference the downward 

adjustment justification in another 

petition in the bundle. DOE is 

considering allowing agencies to bundle 

petitions for new buildings or whole 

renovations to buildings: (1) That are of 

the same building type and of similar 

size; (2) that are being designed and 

constructed to the same set of targets for 

fossil fuel-generated energy 

consumption reduction; or (3) that 

would require similar measures to 

reduce fossil fuel-generated energy 

consumption and similar adjustment to 

the numeric reduction requirement. The 

bundled petitions should clearly state 

any differences between the buildings, 

and explain why the differences do not 

warrant the submission of separate 

evaluations. If an agency is designing a 

similar building for a different set of 

targets for fossil fuel-based energy 

consumption reduction that meets 

conditions (1) and (3) above, the agency 

would be required to submit a separate 

petition, but may include the evaluation 

for the previous building(s) as well as an 

explanation why that earlier evaluation 

should apply to the new building(s). 

For component-level major 

renovations, DOE is considering 

allowing bundling petitions that are of 

the same component and building type. 

DOE is accepting comment on the most 

efficient yet effective ways to bundle 

petitions. 

3. DOE Review Process 

The NOPR stated that DOE will 

review petitions in a timely manner and 

if the petitioning agency has 

successfully demonstrated the need for 

a downward adjustment per the 

discussion above, DOE would concur 

with the agency’s conclusion and notify 

the agency in writing. If DOE does not 

concur, it would forward its reasons to 

the petitioning agency with suggestions 

as to how the fossil fuel-generated 

energy consumption percentage 

reduction requirement may be achieved. 

75 FR 63412. 

Several comments were submitted 

about the DOE review process. EEI, ICC, 

DOD–OUSOD, and DOD–N requested 

information on how quickly the 

Secretary of Energy has to render a 

decision on a petition, and requested a 

timeline. (EEI, Public Meeting 

Transcript, No. 7 at p. 61; ICC, No. 11 

at p. 3; DOD–OUSOD, No. 25A at p.1; 

DOD–N, No. 25B at p. 7) NRDC and 

DOD–OUSOD commented that DOE 

should establish procedures for 

reviewing and ruling on petitions for 

adjustments to ensure public 

transparency. (NRDC, No. 14 at p. 7; 

DOD–OUSOD, No. 25A at p. 1) DOD–N 

recommended that the rule should 

include where and how to submit 

petitions. (DOD–N, No. 25B at p. 7) 

DOE recognizes that agencies want 

assurance that DOE will respond to 

petitions in a timely manner to avoid 

project delays. For petitions for new 

construction, DOE proposes to notify an 

agency in writing within 90 days of 

submittal whether a petition for 

downward adjustment is approved or 

rejected. If DOE rejects the petition, it 

would include its reasons for doing so 

in its response to the agency. 

Additionally for new construction, DOE 

proposes a provision under which DOE 

could establish an adjusted value other 

than the one presented in a petition if 

DOE finds that the petition does not 

support the conclusion of the 

submitting agency but that the 

statutorily required level was 

nonetheless technically impractical in 

light of the agency’s specific functional 

needs for the building. This provision is 

intended to provide flexibility in the 

petition process and reduce the need for 

agencies to resubmit in the instance of 

a rejection. Under the statute, the 

Secretary of Energy is tasked with 

deciding whether to grant a petition for 

downward adjustment and DOE 

believes that this authority also grants 

DOE the ability to propose alternative 

adjusted values if appropriate. 

For petitions for downward 

adjustments to the requirements 

applicable to major renovations, DOE 

proposes that the downward adjustment 

would be granted upon submission of 

specified certifications. The necessary 

certifications are discussed in greater 

detail further in this document. 

4. Information Required in Petitions for 

New Construction 

The NOPR proposed that a petition 

for downward adjustment of the 

numeric requirement should include an 

explanation of what measures would be 

required to meet the fossil fuelgenerated energy consumption 

reduction requirement, and why those 

measures would be technically 

impracticable in light of the agency’s 

specified functional needs for the 

building. DOE also proposed that the 

petition should demonstrate that the 

adjustment requested by the agency 

represents the largest feasible reduction 

in fossil fuel-generated energy 

consumption that can reasonably be 

achieved. DOE solicited comments on 

those issues. 75 FR 63412. 

Several comments specifically asked 

what kind of information would be 

required for a petition. DOD–N 

recommended that DOE provide 

guidance regarding expected content of 

petitions and the minimum supporting 

information required for review and 

approval. (DOD–N, No. 25B at p. 7) 

NRDC recommended that DOE require 

that the agency provide in its petition 

any relevant information that is needed 

to understand and verify the agency’s 

conclusion and request, including 

information about the building’s 

specified functional needs. (NRDC, No. 

14 at p. 12) NRDC thought the 

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requirement that a petition demonstrate 

that the requested adjustment is the 

largest feasible reduction in fossil fuelgenerated consumption that can be 

achieved represents a positive step. 

(NRDC, No. 14 at p. 8) NIBS suggested 

that the petitions include a description 

of all reasonable technologies and 

practices that were examined and 

ultimately rejected by the design team. 

(NIBS, No. 12 at p. 4) 

DOE agrees with these comments and 

is proposing provisions intended to 

provide more detailed petition 

requirements that would allow the 

Department to determine more 

comprehensively whether a downward 

adjustment would be allowable. DOE 

proposes a modified provision to 

require a demonstration that the 

requested adjustment represents the 

largest feasible fossil fuel reduction that 

can reasonably be achieved to include a 

demonstration that all life-cycle costeffective energy efficiency and on-site 

renewable energy measures were 

included in the design and a description 

of the technologies and practices that 

were evaluated and rejected, including 

a justification why they were not 

included. Finally, agencies would also 

be permitted to provide additional 

information they think will help justify 

the request for downward adjustment. 

Petitions would also be required to 

include the maximum allowable fossil 

fuel-generated energy consumption for 

the proposed building, the estimated 

fossil fuel-generated energy 

consumption of the proposed building, 

and a description of the building and 

the building energy systems. A 

description of the building would 

include, but would not be limited to, 

location, use type, floor area, stories, 

and functional needs of the building, 

and any other information the agency 

deems pertinent. The building energy 

systems to be described would include 

the building envelope, HVAC systems, 

lighting systems, service water heating 

system, and estimated receptacle and 

plug loads. This information should 

provide DOE the necessary information 

to review petitions, and help agencies 

ensure key questions and options are 

addressed in the design process. 

5. Downward Adjustments for Major 

Renovations 

As noted previously, for major 

renovations DOE proposes that the fossil 

fuel reduction requirements apply only 

to the energy use associated with the 

portions of the building or building 

systems that are being renovated and 

only to the extent that the scope of the 

renovation provides an opportunity for 

compliance with the applicable fossil 

fuel-generated energy consumption 

reduction requirements. DOE recognizes 

that the improved efficiencies that can 

be achieved through renovation may not 

provide sufficient reduction of fossil 

fuel-generated energy use for a major 

renovation to meet the interim 

requirements. Renovations are even less 

likely to achieve a 100 percentreduction, even in the limited context of 

the energy use associated with just the 

renovated system or component. As 

such, DOE expects that to the extent that 

renovations would be subject to the 

requirements, agencies would need to 

apply for downward adjustments. 

The SNOPR differs from the NOPR by 

establishing a separate section and 

separate requirements for downward 

adjustments for major renovations, and 

further delineates between major 

renovations that are whole building 

renovations and major renovations that 

are limited to system or component 

level retrofits (e.g., a lighting retrofit, a 

retrofit of a boiler or chiller). Whole 

building retrofits provide a greater 

opportunity for improved energy 

efficiency as compared to a system or 

component level retrofit, but generally 

neither type of retrofit would likely 

provide an opportunity to meet the 

fossil fuel reduction requirements. 

Recognizing the practical limitations on 

improving energy efficiency through 

retrofits, DOE proposes separate 

downward adjustment processes for 

major renovations. For major 

renovations that are whole building 

renovations, a downward adjustment 

would be provided at a level equal to 

the energy efficiency level that would be 

achieved were the proposed building 

designed to meet the energy efficiency 

standard applicable to new 

construction. As directed by ECPA, this 

downward adjustment would not apply 

to GSA, although DOE proposes that 

this adjustment would be available to 

GSA-tenant agencies with significant 

control over building design. 

The energy efficiency standards for 

new construction are established in 10 

CFR part 433, for commercial and multifamily high-rise residential buildings, 

and 10 CFR part 435, for low-rise 

residential buildings. The energy 

efficiency standards require a building 

be designed to achieve the energy 

efficiency levels of the applicable 

referenced voluntary consensus code: 

ASHRAE 90.1 for commercial buildings 

multi-family high-rise residential 

buildings, and IECC for low-rise 

residential buildings. The energy 

efficiency standards for new Federal 

buildings further require that buildings 

be designed to achieve energy efficiency 

levels that are at least 30 percent beyond 

the levels established in the referenced 

codes, if life-cycle cost-effective. As 

proposed, a building undergoing a 

whole building renovation would need 

to be designed to achieve the energy 

efficiency levels currently applicable 

only to new construction. DOE has 

preliminarily determined that achieving 

the specified level of energy efficiency 

for a major retrofit that is a whole 

building retrofit would represent the 

appropriate level of fossil fuel-generated 

energy reduction for the building 

efficiency that is also technically 

practicable. 

For major renovations that are limited 

to system or component level retrofits, 

DOE proposes to provide downward 

adjustments at a level equal to the 

energy efficiency level that would be 

achieved through the use of 

commercially available systems and/or 

components that provide a level of 

energy efficiency that is life-cycle cost 

effective. The energy efficiency 

requirement for system and component 

level renovations could be demonstrated 

by using the higher efficiency of the 

following, (1) ENERGY STAR or FEMP 

designated products, or (2) products that 

meet the energy efficiencies specified in 

ASHRAE 90.1 for systems and 

components in commercial buildings, or 

IECC for systems and components in 

residential buildings. 

In setting efficiency requirements, 

both FEMP and ENERGY STAR choose 

levels that are among the highest 25 

percent of efficiency for a given product 

category. ENERGY STAR estimates that 

its program saves more than 200 billion 

kWh of electricity each year, and FEMP 

estimates that compliance with its 

efficiency requirements can save the 

government more than 30 trillion BTUs 

each year. Both programs have 

integrated life-cycle cost effectiveness 

into their guiding principles and, as 

such, Federal buyers can have 

confidence that required products have 

both good energy performance and a 

total cost of ownership that is equal to 

or less than products below set 

efficiencies. Prescriptive requirements 

of ASHRAE 90.1 and IECC demonstrate 

similarly high levels of efficiency. 

Together, these requirements cover 

more than 70 product types and will 

help ensure that the products used 

within Federal facilities are among the 

highest energy efficiencies available. 

Federal buildings that install and use 

these products will realize lower energy 

intensities compared to using noncompliant products. 

DOE requests comment on the 

considered approach as well as 

comment on other potential methods for 

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processing requests related to major 

renovations. 

6. Make Information Publicly Available 

DOE received some comments that 

petitions for downward adjustment 

should be made publicly available on a 

DOE Web site. (NRDC, No. 14 at p. 11; 

Form letter, No. 29 at p. 1) This issue 

was not addressed in the NOPR. The 

Form Letter comments also stated that 

Federal agency compliance with today’s 

SNOPR should be made public. (Form 

letter, No. 29 at p. 1) 

Commenters stated that the reasons 

for making this information publicly 

available are that it would make the 

process transparent and hold agencies 

accountable and could reduce 

unsupported petitions. DOE appreciates 

the commenters concerns and supports 

transparency to the extent the 

Department can be transparent while 

also responding to petitions in a short 

timeframe so as not to delay building 

design and construction. As a result, 

DOE is proposing reporting petition 

summary level information in the DOE 

Annual Report to Congress on Federal 

Energy Management and Conservation 

Programs (See http://www.energy.gov/

about/budget.htm). 

7. Narrow the Use of Petitions 

DOE received a few comments related 

to narrowing the use of petitions for 

downward adjustment. NRDC 

commented that in developing the test 

for technical impracticability and the 

standards for downward adjustment 

petitions, DOE must consider the 

statutory context of the EISA 2007 

provision, which demonstrates that DOE 

should not craft a broad petition 

procedure that swallows the larger 

statutory requirement. (NRDC, No. 14 at 

p. 8) The Form Letter requested that 

DOE promulgate strict requirements that 

ensure that agency requests for fossil 

fuel reduction adjustments will be 

rarely granted, so that this process does 

not prevent the law from achieving its 

vital goal to cut government buildings’ 

greenhouse gas emissions dramatically. 

The Form Letter also urged DOE to 

strengthen the rule and apply it without 

exceptions and without loopholes. 

(Form letter, No. 29 at p. 1) 

DOE believes the changes it has 

proposed in this SNOPR would reduce 

the number of petitions submitted for 

downward adjustment and will improve 

the content of submitted petitions. DOE 

has expanded the number of building 

types covered in Tables 1–4 in 

Appendix A of part 433, and has a 

methodology for calculating the 

maximum allowable fossil fuelgenerated consumption values for 

buildings with process loads. This is 

expected to greatly reduce the number 

of building types without baselines and 

fossil fuel reduction targets, eliminating 

a significant potential source of 

petitions. In addition, in response to 

some of the public comments received, 

this proposed rule is more specific 

about information to be provided as part 

of the petition process. Agencies 

requesting a petition would be required 

to: (1) Demonstrate that the requested 

adjustment represents the largest 

feasible fossil fuel reduction that can be 

achieved; (2) demonstrate that all costeffective energy efficiency and on-site 

renewable energy has been included in 

the proposed design; and (3) describe all 

technologies and practices that were 

evaluated and rejected, including a 

justification as to why they were not 

included in the design. The rule would 

require specific information about the 

energy efficiency and on-site renewable 

energy measures included in the 

proposed building design to enable DOE 

to evaluate the request for downward 

adjustment. 

8. GSA Tenant Agencies 

The statute does not provide the 

General Services Administration (GSA) 

the option of petitioning DOE for a 

downward adjustment of the applicable 

percentage reduction requirement. (42 

U.S.C. 6834(a)(3)(D)(i)(II)) In the NOPR, 

DOE proposed that a new Federal 

building or a Federal building 

undergoing major renovations for which 

a Federal agency is providing 

substantive and significant design 

criteria may be the subject of a petition. 

75 FR 63412. Under this approach, DOE 

proposed that a GSA building that is 

designed to meet the specifications 

provided by a tenant agency may be 

considered for a downward adjustment 

if a petition is submitted by the head of 

the tenant agency. 

DOE received one comment on this 

issue. NRDC commented that allowing 

GSA tenant agencies to petition for 

downward adjustments contradicts the 

statute. (NRDC, No. 14 at p. 10) 

While the statute prohibits GSA from 

petitioning DOE for a downward 

adjustment, it makes no reference to 

GSA tenant agencies. DOE is continuing 

to propose that GSA tenant agencies that 

have significant control over building 

design may request a petition. In such 

cases, it would be the tenant agency, not 

GSA, that is making the design choices 

that would allow for compliance with 

the rule. Allowing GSA tenant agencies 

to submit a petition for downward 

adjustment would provide an option for 

some buildings for which the required 

fossil fuel reductions may be technically 

impracticable in light of the building’s 

functional needs, but for which GSA 

may not submit a petition. 

9. Other 

DHHS–HIS–OEHE commented that 

consideration for what is technically 

impracticable should include remote 

locations that often have limited choices 

in available power utility companies. 

(DHHS, No. 24 at p. 6) DOE will 

consider remote locations and the 

availability of power utility companies 

in the petition process, but DOE also 

notes that the use of allowable, off-site 

renewable energy sources would help 

agencies meet their targets even in the 

case of remote buildings. 

F. Impacts of the Rule 

1. Cost Impacts 

The NOPR provided a discussion of 

the expected costs of meeting the fossil 

fuel-generated energy consumption 

reduction requirements based on a 

study that DOE commissioned by PNNL 

in 2008 to look at the incremental costs 

of high performance buildings, and cost 

calculations for DOE work associated 

with the ASHRAE Advanced Energy 

Design Guides. DOE acknowledged that 

cost data for high performance buildings 

is fairly rare, and many times the costs 

for achieving high levels of energy 

efficiency are intermingled with the 

costs to achieve more sustainable design 

features. 75 FR 63410. Because of the 

limited data, DOE sought comment on 

cost impacts, especially any 

construction cost increases for buildings 

that Federal agencies are in the process 

of designing or have already built. 

DOE did not receive any comments 

providing additional specific cost 

information. EEI noted that the PNNL 

2008 report stated that the cost data was 

very limited. (EEI, No. 10 at p. 8) NIBS 

stated that the focus on first costs is 

misplaced and should not be 

considered; DOE should focus on the 

overall life-cycle-cost of the 

requirements. (NIBS, No. 12 at p. 3) 

NRDC also stated that when analyzing 

cost impacts, DOE should look at lifecycle costs rather than increased first 

costs. (NRDC, No. 14 at p. 7) NRDC 

commented that past experience has 

shown that the cost of efficiency 

improvements tends to be lower than 

predicted and that the magnitude of 

increases in energy efficiency will often 

exceed expectations. In another 

comment, NRDC stated that the statute 

does not mention costs as one of the 

criteria for application of this rule; 

therefore, DOE should not use cost to 

limit the application of the rule. (NRDC, 

No. 14 at p. 6). 

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The AGA stated that the estimates 

should be based on actual quotes, not 

PNNL analyses or the ASHRAE 

Advanced Energy Design Guides. (AGA, 

No. 16 at p. 5) APGA states that EISA 

2007 Section 433 strongly discourages 

any use of natural gas and subsidizes 

the growth of non fossil-fueled 

electricity generation, the vast majority 

of which will likely be produced offsite. APGA believes that, under this 

interpretation, EISA 2007 may reduce 

initial construction costs (relative to 

onsite generation) and massively 

increase life-cycle operating costs for 

utility services. (APGA, No. 17 at p. 6) 

NAD commented that the cost analysis 

described in the proposed rules showed 

up to an 8.7 percent cost increase for a 

simple building, but this will increase 

dramatically for more complex 

buildings, especially for buildings built 

in the later years when fossil fuel 

reductions near 100 percent. (NAD, No. 

19 at p. 3) The DOD–AF commented 

that given the restrictive nature of the 

Military Construction Program 

(MILCON) funding process, it is not 

clear how the Air Force can implement 

a strategy to meet this requirement 

within the timeline discussed and 

whether there is a budget to implement 

this requirement while meeting current 

and future Air Force mission needs. 

(DOD–AF, No. 25C at p. 6). 

DOE agrees that it is prudent to 

consider cost-effectiveness of energy 

reduction measures. First costs, of 

course, are necessary to compute costeffectiveness. DOE notes, however, that 

per the statute, high first costs/poor 

cost-effectiveness are not an explicit 

consideration for today’s rulemaking. 

(See 42 U.S.C. 6834(a)(3)(D)). 

Nonetheless, DOE believes that 

minimizing costs to Federal agencies is 

a significant consideration, and DOE has 

designed this proposed rule to minimize 

costs and foster the most cost-effective 

approaches to meeting the statutorily 

mandated fossil fuel reductions. 

The baseline Federal building energy 

efficiency standards published in the 

past few years require agencies to design 

new Federal buildings to achieve energy 

consumption levels at least 30 percent 

below the levels of the baseline building 

built to ASHRAE Standard 90.1–2010, 

or the IECC 2009 (depending on the type 

of building), if life-cycle cost-effective. 

See 78 FR 40945 (July 9 2013); 76 FR 

49279 (August 10, 2011). If achieving 

this consumption level is not life-cycle 

cost-effective, Federal agencies must, at 

a minimum, meet ASHRAE Standard 

90.1–2007, or the IECC 2009 (depending 

on the type of building). Federal 

agencies are already required to incur 

the costs associated with meeting these 

requirements. For new Federal 

buildings, it is only the additional first 

cost of achieving fossil fuel-generated 

consumption reductions beyond the 

energy efficiency improvements already 

required for new Federal buildings that 

would be attributable to this proposed 

rule. Beyond those pre-existing 

requirements, agencies have the option 

of implementing additional energy 

efficiency, on-site renewable energy, or 

acquiring off-site renewable energy in 

accordance with procedures described 

earlier. The rule provides agencies with 

some alternative ways to achieve the 

required fossil fuel reductions, and DOE 

expects that agencies will select the 

most cost-effective combination of these 

options. 

2. Other Impacts 

DOE received several comments 

closely associated with cost impacts. A 

few commenters expressed concern that 

the rulemaking discourages or 

encourages the use of certain fuel types 

or other forms of energy without any 

consideration of the comparative 

efficiency and environmental impacts of 

optional fuel choices. (See AGA, No. 16 

at p. 2; APGA, No. 17 at pp. 2–3). One 

commenter encouraged DOE to account 

for indirect social costs and another 

expressed concern that DOE might use 

the ‘‘social cost of carbon’’ in its cost/ 

benefit analysis for this rule (NRDC, No. 

14 at p. 7; EEI, No. 10 at pp. 8–9). 

Several comments were submitted 

questioning the technical and fiscal 

feasibility of meeting today’s 

requirements, especially the 100 percent 

fossil fuel reduction requirement 

starting in FY 2030. (See AGA, No. 16 

at p. 2; APGA, No. 17 at p. 2; NPGA, No. 

23 at pp. 2, 4; GTI, No. 22 at p. 14; 

DOD–AF, No. 25C at p. 7; EEI, Public 

Meeting Transcript, No. 7 at p. 53) 

DOE acknowledges that achieving the 

reductions, especially the 100 percent 

reduction in 2030, will be challenging. 

However, the reductions mandated 

today are established by statute. DOE 

expects design practices and 

technologies will improve and costs will 

decrease in coming years, making it 

easier and less costly to achieve 

reductions through either energy 

efficiency or the use of on-site 

renewable energy. If the reductions are 

technically impracticable in light of the 

agency’s functional needs for the 

building after all of these provisions are 

implemented, as a last resort, Federal 

agencies (except for GSA) may petition 

the Secretary of Energy through the 

DOE’s Federal Energy Management 

Program (FEMP) Director for a 

downward adjustment to the numeric 

reduction requirement. 

Finally, DOE received several 

comments broadly supporting DOE’s 

energy conservation and renewable 

energy efforts or other energy 

conservation or renewable energy 

efforts. Some of these comments 

supported or opposed the use of certain 

forms of renewable and fossil energy, 

others supported specific green building 

measures, and others encouraged green 

technology research. DOE actively 

supports the research and development 

of a wide range of forms of renewable 

energy and has chosen not to narrow the 

renewable energy deduction in this rule 

to only certain forms of renewable 

energy. Many of the suggestions made 

by commenters are currently being 

implemented by DOE. Executive Orders 

13423 and 13514 require Federal 

agencies to implement sustainable 

practices, GSA has established an Office 

of High Performance Green Buildings, 

and ECPA, as amended by EISA, 

requires sustainable design principles 

be applied to all new Federal buildings 

and major renovations of Federal 

buildings (42 U.S.C. 6834(a)(3)). 

Elsewhere in this issue of the Federal 

Register, the green building certification 

portion of the Sustainable Design NOPR 

is published as a final rule. 

G. Guidance and Other Topics 

DOE requested specific comment in 

the NOPR on what additional training 

would help agencies meet the 

reductions called for by this statute. In 

addition to comments on that question, 

DOE received several unique comments 

as part of the Form Letter about 

alternative generation, green buildings, 

and transportation. 

1. Training 

In the NOPR, DOE provided 

references to various tools to help 

agencies design new Federal buildings 

and major renovations to achieve the 

required fossil fuel reductions, and 

asked for comments on additional 

training or tools that might be helpful. 

75 FR 63413. 

NIBS confirmed the importance of an 

experienced and well-trained design 

team. (NIBS, No. 12 at p. 4) AIA 

commented that improvement of energy 

modeling tools and creation of earlydesign phase tools is necessary. AIA 

mentioned the need to train architects, 

engineers and other building design 

professionals to meet these energy 

targets. They also mentioned the need to 

train building owners, facility managers 

and inhabitants on operations and 

maintenance. AIA also recommended 

examining tools being used for building 

analysis. (AIA, No. 15 at p. 2) DOD– 

OUSOD commented that additional 

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training should cover reconciliation of 

force protection/security requirements 

with sustainable design. (DOD–OUSOD, 

No. 25A at p. 3) ICC endorsed the listing 

of resources including the International 

Green Construction Code and ASHRAE 

189.1. (ICC, No. 11 at p. 3) NRDC 

commented that DOE should look at real 

data and survey other agencies to 

understand what would make the 

reduction requirement ‘‘technically 

impracticable’’ and look at the 

technology available now and consider 

the technology in development, to 

answer this question. This would allow 

DOE to target resources to assist 

agencies in meeting the requirements for 

future years, when greater reductions in 

fossil fuel usage will be required. 

(NRDC, No. 14 at p. 8) 

DOE agrees about the importance of 

training and tools to help improve the 

ease and effectiveness of designing highperformance buildings. DOE develops, 

and will continue to develop, tools and 

training. This will include looking at 

real data and surveying agencies on new 

technologies and experience with high 

performance building practices, 

including compliance with the fossil 

fuel reduction requirements. DOE agrees 

it is important to reconcile force 

protection/security requirements with 

energy and sustainable design 

considerations, and will work with 

agencies to do so. 

As FEMP did with the existing 

Federal building energy efficiency 

standards, FEMP plans to hold webcasts 

on the new Federal baseline energy 

efficiency standards, and today’s fossil 

fuel reduction rule. FEMP currently 

keeps all material related to the Federal 

standards at http://www1.eere.energy.

gov/femp/regulations/notices_

rules.html. FEMP also has training 

available on all aspects of Federal 

energy management and conservation at 

http://apps1.eere.energy.gov/femp/

training. 

In addition to the tools identified in 

the NOPR and the FEMP tools listed 

above, DOE is also referencing 

additional resources in the next section 

of this document. 

2. Verification and Monitoring 

NRDC recommended that a design 

verification and commissioning plan be 

part of the building design to help 

ensure the required reductions. They 

also suggested that a requirement be 

included for continued measurement 

and monitoring of Federal buildings 

with mandatory reporting and 

disclosure to the public. (NRDC, No. 14 

at p. 16) 

DOE agrees that both building 

commissioning and verification of 

performance are important to ensure 

buildings perform as designed to 

achieve the required fossil fuelgeneration energy consumption 

reductions. ECPA, however, provides 

that new Federal buildings and major 

renovations of Federal buildings shall 

be ‘‘designed’’ so that fossil fuelgenerated energy consumption is 

reduced. As such, the rulemaking only 

covers the building design, not postoccupancy. EISA section 432, however, 

requires that Federal agencies report 

and benchmark energy and water use for 

at least 75 percent of facility energy use. 

(42 U.S.C. 8253(f)) Agencies should 

refer to ‘‘Building Energy Use 

Benchmarking Guidance,’’ http://www1.

eere.energy.gov/femp/regulations/

guidance.html, for information and 

guidance on these requirements. 

IV. Reference Resources 

DOE has prepared a list of resources 

to help Federal agencies address the 

reduction of fossil fuel-generated energy 

consumption. The final rule on energy 

efficiency published in the Federal 

Register on December 4, 2006 (71 FR 

70275) contains some reference 

resources for energy efficiency 

improvement in building design. These 

resources come in many forms such as 

design guidance, case studies and in a 

variety of media such as printed 

documents or on Web sites. The 

resources for energy efficiency 

improvement will also provide guidance 

for fossil fuel-generated energy 

consumption reductions. 

DOE is adding to this list of resources 

to also include: 

• U.S. Department of Energy, Federal 

Energy Management Program. 

(www1.eere.energy.gov/femp). FEMP 

provides access to numerous resources 

and tools that can help Federal agencies 

improve the energy efficiency of new 

and existing buildings. 

• U.S. Department of Energy, 

Building Technologies Program. 

Database of high-performance buildings. 

(eere.buildinggreen.com). 

• FedCenter. High Performance 

Buildings. (www.fedcenter.gov/

programs/greenbuildings/). 

• American Society of Heating, 

Refrigerating, and Air-conditioning 

Engineers, Inc. ‘‘Advanced Energy 

Design Guides.’’ (http://www.ashrae.

org/technology/page/938) and (http://

www1.eere.energy.gov/buildings/

commercial_initiative/guides.html). The 

ASHRAE ‘‘Advanced Energy Design 

Guides (AEDGs),’’ developed in 

cooperation with DOE and others, are a 

series of publications designed to 

provide recommendations for achieving 

energy savings 30 percent better than 

the minimum code requirements of 

ANSI/ASHRAE/IESNA 90.1–2004, and 

cover K–12 school buildings, small 

retail buildings, small office buildings, 

small hospitals and healthcare facilities, 

highway lodging, and small warehouses 

and self-storage buildings. Additional 

design guides aimed at establishing 50 

percent energy savings over the 

minimum code requirements of ANSI/

ASHRAE/IESNA 90.1–2004 are being 

developed for small-to-medium office 

buildings, mid-box retail, highway 

lodging, K–12 schools, grocery/

supermarket, and quick-serve 

restaurants. 

• American Society of Heating, 

Refrigerating, and Air-conditioning 

Engineers, Inc. ANSI/ASHRAE/IESNA 

Standard 189.1 Standard for the Design 

of High-Performance Green Buildings. 

(www.ashrae.org/publications/page/

927). 

• Tangherlini, Daniel, Administrator, 

General Services Administration, Letter 

to Secretary Ernest Moniz, U.S. 

Department of Energy, GSA 

recommendations and review of green 

building certification systems, October 

25, 2013. (http://www.gsa.gov/portal/

content/131983?utm_source=OGP&

utm_medium=print-radio&utm_term=gb

certificationreview&utm_campaign=

shortcuts). 

• National Institute of Building 

Sciences. ‘‘Whole Building Design 

Guide.’’ (www.wbdg.org). 

• International Code Council. 

‘‘International Green Construction 

Code.’’ (www.iccsafe.org/cs/IGCC/

Pages/default.aspx). 

• Northwest Energy Efficiency 

Alliance, Better Bricks Commercial 

Building Initiative, 

(www.betterbricks.com). 

• Massachusetts High Performance 

Buildings Database. 

(mtc.buildinggreen.com). 

• New Buildings Institute. Buildings 

Database. (buildings.newbuildings.org). 

• Environmental Building News. 

BuildingGreen.com. 

(www.buildinggreen.com) (subscription 

required). 

V. Procedural Issues and Regulatory 

Review 

A. Review under Executive Orders 

12866 and 13563 

It has been determined that this 

regulatory action is a ‘‘economically 

significant regulatory action’’ under 

section 3(f)(1) of Executive Order 12866. 

Accordingly, section 6(a)(3) of the 

Executive Order requires that DOE 

prepare a regulatory impact analysis 

(RIA) on this proposed rule and that the 

Office of Information and Regulatory 

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Affairs (OIRA) in the OMB review this 

proposed rule. DOE has also reviewed 

this regulation pursuant to Executive 

Order 13563, issued on January 18, 

2011. 76 FR 3281 (January 21, 2011). EO 

13563 is supplemental to and explicitly 

reaffirms the principles, structures, and 

definitions governing regulatory review 

established in Executive Order 12866. 

The RIA consists of: (1) A statement 

of the problem addressed by this 

regulation, and the mandate for 

government action; (2) a description and 

analysis of the feasible policy 

alternatives to this regulation; (3) a 

quantitative comparison of the impacts 

of the alternatives; and (4) the national 

economic impacts of the proposed 

standards. 

The RIA calculates the effects of 

feasible policy alternatives to mandatory 

standards for new Federal buildings and 

major renovations subject to the 

requirements, and provides a 

quantitative comparison of the impacts 

of the alternatives. DOE evaluated each 

alternative in terms of its ability to 

achieve significant energy savings at 

reasonable costs, and compared it to the 

effectiveness of the proposed rule. 

DOE identified the following major 

policy alternatives for achieving 

increased energy efficiency: 

• No new regulatory action; 

• ‘‘Zero fossil fuel’’ alternative of 

immediately requiring the lowest fossil 

fuel-generated energy consumption 

limits specified in the rule of zero fossil 

fuel usage; and 

• The proposed approach. 

DOE also considered certain nonregulatory policy alternatives such as 

tax credits, rebates, and labeling 

programs, and was unable to identify 

any non-regulatory policy alternatives 

that would be viable for Federal 

buildings. DOE evaluated the 

alternatives in terms of cost and energy 

savings. 

TABLE V–1—CONSTRUCTION COST INCREASES UNDER THE FOSSIL FUEL-REDUCTION RULE AND ‘‘ZERO FOSSIL FUEL’’ 

ALTERNATIVE (RELATIVE TO BASELINE ‘‘NO-ACTION’’ ALTERNATIVE) CALENDAR YEARS 2015–2044 

Calendar year 

Fossil fuel-reduction 

rule—high PV1 cost 

scenario 

(2012 $million) 

Fossil fuel-reduction 

rule—low PV cost 

scenario 

(2012 $million) 

‘‘Zero fossil fuel’’ alternative—high PV cost 

scenario 

(2012 $million) 

‘‘Zero fossil fuel’’ alternative—low PV cost 

scenario 

(2012 $million) 

2015 ................................................. $30 $30 $1,194 $1,136 

2016 ................................................. 30 30 1,189 1,103 

2017 ................................................. 30 30 1,183 1,071 

2018 ................................................. 30 30 1,178 1,040 

2019 ................................................. 30 30 1,173 1,010 

2020 ................................................. 536 447 1,191 1,005 

2021 ................................................. 534 435 1,186 976 

2022 ................................................. 532 424 1,181 949 

2023 ................................................. 530 413 1,175 922 

2024 ................................................. 528 402 1,170 896 

2025 ................................................. 841 618 1,165 871 

2026 ................................................. 837 601 1,160 847 

2027 ................................................. 834 585 1,155 824 

2028 ................................................. 830 569 1,150 801 

2029 ................................................. 827 554 1,145 778 

2030 ................................................. 1,135 736 1,140 757 

2031 ................................................. 1,130 716 1,140 757 

2032 ................................................. 1,125 696 1,140 757 

2033 ................................................. 1,120 677 1,140 757 

2034 ................................................. 1,115 658 1,140 757 

2035 ................................................. 1,110 640 1,140 757 

2036 ................................................. 1,110 640 1,140 757 

2037 ................................................. 1,110 640 1,140 757 

2038 ................................................. 1,110 640 1,140 757 

2039 ................................................. 1,110 640 1,140 757 

2040 ................................................. 1,110 640 1,140 757 

2041 ................................................. 1,110 640 1,140 757 

2042 ................................................. 1,110 640 1,140 757 

2043 ................................................. 1,110 640 1,140 757 

2044 ................................................. 1,110 640 1,140 757 

1 ‘‘PV’’ references solar photovoltaic technologies. 

TABLE V–2—ANNUALIZED BENEFITS AND COSTS TO FEDERAL GOVERNMENT FOR NEW AND EXISTING CONSTRUCTION

UNDER THE FOSSIL FUEL-REDUCTION RULE a

Discount rate 

Monetized (2012 $million/year) 

Primary 

estimate b

Low 

estimate b

High 

estimate b

Benefits 

Operating (Energy) Cost Savings .................................................... 7% ............................. 349.2 ............... 336.1 ............... 468.9 

3% ............................. 606.7 ............... 580.1 ............... 841.4 

CO2 Reduction at $12.9/t c ............................................................... 5% ............................. 46.0 ................. 46.0 ................. 46.0 

CO2 Reduction at $40.8/t c ............................................................... 3% ............................. 178.6 ............... 178.6 ............... 178.6 

CO2 Reduction at $62.2/t c ............................................................... 2.50% ........................ 270.6 ............... 270.6 ............... 270.6 

CO2 Reduction at $117.0/t c ............................................................. 3% ............................. 550.9 ............... 550.9 ............... 550.9 

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61720 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

TABLE V–2—ANNUALIZED BENEFITS AND COSTS TO FEDERAL GOVERNMENT FOR NEW AND EXISTING CONSTRUCTION

UNDER THE FOSSIL FUEL-REDUCTION RULEa—Continued 

Discount rate 

Monetized (2012 $million/year) 

Primary 

estimate b

Low 

estimate b

High 

estimate b

NOX Reduction at $2,639/t c ............................................................ 7% ............................. 2.9 ................... 2.9 ................... 2.9 

3% ............................. 4.9 ................... 4.9 ................... 4.9 

Total (Operating Cost Savings, CO2 Reduction and NOX Reduction) d.7% plus CO2 range ... 398 to 903 ...... 385 to 890 ...... 518 to 1023 

7% ............................. 530.7 ............... 517.6 ............... 650.4 

3% ............................. 790.2 ............... 763.6 ............... 1024.9 

3% plus CO2 range ... 658 to 1163 .... 631 to 1136 .... 892 to 1397 

Costs 

Incremental Purchase Price Increase .............................................. 7% ............................. 479.4 ............... 572.6 ............... 386.3 

3% ............................. 574.6 ............... 695.6 ............... 453.5 

Net Benefits/Costs 

Total (Operating Cost Savings, CO2 Reduction and NOX Reduction, Minus Incremental Cost Increase to Buildings).7% plus CO2 range ... ¥28 to 477 ..... ¥188 to 317 ... 132 to 636 

7% ............................. 104.6 ............... ¥55.0 ............. 264.2 

3% ............................. 215.7 ............... 68.0 ................. 571.4 

3% plus CO2 range ... 187 to 692 ...... ¥65 to 440 ..... 439 to 944 

a Incremental costs are calculated for buildings constructed or renovated in 2015–2044; total benefits extend through 2074. 

bThe primary, low, and high estimates utilize forecasts of energy prices from the Annual Energy Outlook 2013 reference case. The low and 

high cases were based upon the percentage price deviations from the Annual Energy Outlook 2013 reference case as provided in the Low Economic Growth case and High Economic Growth case, respectively. cThese values represent global values (in 2012$) of the social cost of CO2 (SCC) emissions in 2013 under several scenarios developed by the 

Interagency Working Group on Social Cost of Carbon (SCC) (OMB 2013). The values of $12.9, $40.8, and $62.2 per metric ton are the averages 

of SCC distributions calculated using 5%, 3%, and 2.5% discount rates, respectively. The value of $117.0 per ton represents the 95th percentile 

of the SCC distribution calculated using a 3% discount rate. For NOX, values were extracted from OMB guidance (OMB 2006) and updated to 

2012$. An average value ($2,639) of the low ($468) and high ($4,809) values was used. dTotal monetary benefits for both the 3-percent and 7-percent cases utilize the central estimate of social cost of NOX and CO2 emissions calculated at a 3-percent discount rate (averaged across three integrated assessment models (IAMs)), which is equal to $40.8/metric ton (in 2012$). 

Primary, low, and high estimates of 

the benefits and costs were developed to 

indicate the possible range of these 

metrics. The future energy prices used 

to compute operating cost savings for 

the primary estimate were taken from 

the Annual Energy Outlook 2013 

reference case. The low estimate 

combines slightly lower energy prices as 

compared to the reference case along 

with the construction cost developed as 

part of the high-cost PV case (used for 

incremental construction cost). 

Alternatively, the high estimate 

combines higher energy prices relative 

to the reference case along with the 

construction cost developed as part of 

the low-cost PV case. The average 

incremental construction cost based 

upon the high-cost PV case and the lowcost PV case was used as the primary 

estimate of incremental construction 

cost. 

TABLE V–3—ANNUALIZED BENEFITS AND COSTS TO THE FEDERAL GOVERNMENT FOR NEW AND EXISTING CONSTRUCTION

UNDER THE ‘‘ZERO FOSSIL FUEL’’ ALTERNATIVE a

Discount rate 

Monetized (2012 $million/year) 

Primary 

estimate b

Low 

estimate b

High 

estimate b

Benefits 

Operating (Energy) Cost Savings .................................................... 7% .............................

3% .............................

601.4 ...............

1076.6 .............

583.1 ...............

893.6 ...............

781.2 

1259.6 

CO2 Reduction at $12.9/t c ............................................................... 5% ............................. 68.6 ................. 68.6 ................. 68.6 

CO2 Reduction at $40.8/t c ............................................................... 3% ............................. 257.9 ............... 257.9 ............... 257.9 

CO2 Reduction at $62.2/t c ............................................................... 2.50% ........................ 388.0 ............... 388.0 ............... 388.0 

CO2 Reduction at $117.0/t c ............................................................. 3% ............................. 793.2 ............... 793.2 ............... 793.2 

NOX Reduction at $2,639/t c ............................................................ 7% .............................

3% .............................

4.8 ...................

7.1 ...................

4.8 ...................

7.1 ...................

4.8 

7.1 

Total (Operating Cost Savings, CO2 Reduction and NOX Reduction) d.7% plus CO2 range ...

7% .............................

3% .............................

3% plus CO2 range ...

675 to 1399 ....

864.1 ...............

1341.6 .............

1152 to 1877 ..

657 to 1381 ....

845.8 ...............

1158.6 .............

969 to 1694 ....

855 to 1579 

1043.8 

1524.7 

1335 to 2060 

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TABLE V–3—ANNUALIZED BENEFITS AND COSTS TO THE FEDERAL GOVERNMENT FOR NEW AND EXISTING CONSTRUCTION

UNDER THE ‘‘ZERO FOSSIL FUEL’’ ALTERNATIVE a—Continued 

Discount rate 

Monetized (2012 $million/year) 

Primary 

estimate b

Low 

estimate b

High 

estimate b

Costs 

Incremental Purchase Price Increase .............................................. 7% .............................

3% .............................

1043.8 .............

1021.6 .............

1167.0 .............

1161.1 .............

920.6 

882.2 

Net Benefits/Costs 

Total (Operating Cost Savings, CO2 Reduction and NOX Reduction, Minus Incremental Cost Increase to Buildings).7% plus CO2 range ...

7% .............................

3% .............................

3% plus CO2 range ...

¥288 to 436 ...

¥99.0 .............

320.0 ...............

131 to 855 ......

¥510 to 214 ...

¥321.2 ...........

¥2.5 ...............

¥192 to 533 ...

¥66 to 659 

123.2 

642.5 

453 to 1178 

a Incremental costs are calculated for buildings constructed or renovated in 2014–2044; total benefits extend through 2074. 

bSee footnote (b) for Table 2. 

cThese values represent global values (in 2012$) of the social cost of CO2 (SCC) emissions in 2012 under several scenarios developed by the 

Interagency Working Group on Social Cost of Carbon (SCC) (OMB 2013). The values of $12.9, $40.8, and $62.2 per metric ton are the averages 

of SCC distributions calculated using 5%, 3%, and 2.5% discount rates, respectively. The value of $117.0 per ton represents the 95th percentile 

of the SCC distribution calculated using a 3% discount rate. For NOX, values were extracted from OMB guidance (OMB 2006) and updated to 

2012$. An average value ($2,639) of the low ($468) and high ($4,809) values was used. dTotal monetary benefits for both the 3-percent and 7-percent cases utilize the central estimate of social cost of NOX and CO2 emissions calculated at a 3-percent discount rate (averaged across three integrated assessment models (IAMs)), which is equal to $40.8/metric ton (in 2012$). 

The net benefits in 2010 dollars to the 

Federal government using the primary 

estimate for PV system costs turns out 

to be $104.6 million/year using the 7% 

discount rate, while it is $215.7 million/ 

year using the 3% discount rate for the 

fossil fuel reduction rule (Table V–2), 

while the corresponding figures are 

negative $99.0 million/year using the 

7% discount rate and positive $320 

million/year using the 3% discount rate 

for the ‘‘zero fossil fuel’’ alternative to 

the rule (Table V–3). 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires the 

preparation of an initial regulatory 

flexibility analysis for any rule that by 

law must be proposed for public 

comment, unless the agency certifies 

that the rule, if promulgated, will not 

have a significant economic impact on 

a substantial number of small entities. 

As required by Executive Order 13272, 

Proper Consideration of Small Entities 

in Agency Rulemaking, 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the 

rulemaking process (68 FR 7990). The 

Department has made its procedures 

and policies available on the Office of 

General Counsel’s Web site: http://

energy.gov/gc/guidance-opinions-0 . 

This proposed rulemaking applies 

only to the fossil fuel-generated energy 

consumption of new Federal buildings 

and Federal buildings undergoing major 

renovation. As such, the only entities 

directly regulated by this rulemaking 

would be Federal agencies. DOE does 

not believe that there will be any 

impacts on small entities such as small 

businesses, small organizations, or small 

governmental jurisdictions. 

On the basis of the foregoing, DOE 

certifies that this proposed rule would 

not have a significant economic impact 

on a substantial number of small 

entities. Accordingly, DOE has not 

prepared a regulatory flexibility analysis 

for this rulemaking. DOE’s certification 

and supporting statement of factual 

basis will be provided to the Chief 

Counsel for Advocacy of the Small 

Business Administration pursuant to 5 

U.S.C. 605(b). 

C. Review Under the Paperwork 

Reduction Act of 1995 

This rulemaking will impose no new 

information or record keeping 

requirements. Accordingly, Office of 

Management and Budget (OMB) 

clearance is not required under the 

Paperwork Reduction Act. (44 U.S.C. 

3501 et seq.) 

D. Review Under the National 

Environmental Policy Act of 1969 

DOE prepared an draft Environmental 

Assessment (EA) (DOE/EA–1778) 

entitled, ‘‘Environmental Assessment 

for Proposed Rulemaking, 10 CFR parts 

433 and 435, ‘Fossil Fuel-Generated 

Energy Consumption Reduction for New 

Federal Buildings and Major 

Renovations of Federal Buildings,’’ 

pursuant to the Council on 

Environmental Quality’s (CEQ) 

Regulations for Implementing the 

Procedural Provisions of the National 

Environmental Policy Act (40 CFR parts 

1500–1508), the National Environmental 

Policy Act of 1969 (NEPA), as amended 

(42 U.S.C. 4321 et seq.), and DOE’s 

NEPA Implementing Procedures (10 

CFR part 1021). 

The draft EA addresses the possible 

environmental effects attributable to the 

implementation of the today’s rule. The 

rule by its fundamental intent has a 

positive impact on the environment. 

The only anticipated impact of today’s 

rulemaking would be a decrease in 

outdoor air pollutants resulting from 

reduced fossil fuel-generated energy 

consumption in new Federal buildings 

and major renovations of Federal 

buildings. 

E. Review Under Executive Order 13132, 

‘‘Federalism’’ 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 4, 1999), imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have Federalism implications. The 

Executive Order requires agencies to 

examine the constitutional and statutory 

authority supporting any action that 

would limit the policymaking discretion 

of the States and to carefully assess the 

necessity for such actions. The 

Executive Order also requires agencies 

to have an accountable process to 

ensure meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have Federalism implications. On 

March 14, 2000, DOE published a 

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61722 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

statement of policy describing the 

intergovernmental consultation process 

it will follow in the development of 

such regulations. (65 FR 13735). DOE 

examined this rulemaking and 

determined that it would not preempt 

State law and would not have a 

substantial direct effect on the States, on 

the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of Government. No further action 

is required by Executive Order 13132. 

F. Review Under Executive Order 12988, 

‘‘Civil Justice Reform’’ 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (February 7, 1996), 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; and 

(3) provide a clear legal standard for 

affected conduct, rather than a general 

standard and promote simplification 

and burden reduction. Section 3(b) of 

Executive Order 12988 specifically 

requires that Executive agencies make 

every reasonable effort to ensure that the 

regulation: (1) Clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct, 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met 

or it is unreasonable to meet one or 

more of them. DOE has completed the 

required review and determined that, to 

the extent permitted by law, this 

rulemaking meets the relevant standards 

of Executive Order 12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4) requires each Federal agency to 

assess the effects of Federal regulatory 

actions on State, local, and tribal 

governments and the private sector. For 

a proposed regulatory action likely to 

result in a rule that may cause the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish a written 

statement that estimates the resulting 

costs, benefits, and other effects on the 

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

(b)) The UMRA also requires a Federal 

agency to develop an effective process 

to permit timely input by elected 

officers of State, local, and tribal 

governments on a proposed ‘‘significant 

intergovernmental mandate,’’ and 

requires an agency plan for giving notice 

and opportunity for timely input to 

potentially affected small governments 

before establishing any requirements 

that might significantly or uniquely 

affect small governments. On March 18, 

1997, DOE published a statement of 

policy on its process for 

intergovernmental consultation under 

UMRA (62 FR 12820) (also available at 

http://energy.gov/gc/guidance-opinions0). This rulemaking contains neither an 

intergovernmental mandate nor a 

mandate that may result in the 

expenditure of $100 million or more in 

any year by State, local, and tribal 

governments, in the aggregate, or by the 

private sector so these requirements 

under the Unfunded Mandates Reform 

Act do not apply. 

H. Review Under the Treasury and 

General Government Appropriations 

Act of 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

supplemental proposed rule would not 

have any impact on the autonomy or 

integrity of the family as an institution. 

Accordingly, DOE has preliminarily 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

I. Review Under Executive Order 12630, 

‘‘Governmental Actions and 

Interference With Constitutionally 

Protected Property Rights’’ 

The Department has determined, 

under Executive Order 12630, 

‘‘Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights,’’ 53 FR 8859 (March 18, 1988), 

that this rule would not result in any 

takings which might require 

compensation under the Fifth 

Amendment to the United States 

Constitution. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

Section 515 of the Treasury and 

General Government Appropriations 

Act, 2001 (44 U.S.C. 3516, note) 

provides for agencies to review most 

disseminations of information to the 

public under guidelines established by 

each agency pursuant to general 

guidelines issued by OMB. OMB’s 

guidelines were published at 67 FR 

8452 (February 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (October 7, 2002). DOE has 

reviewed this rulemaking under the 

OMB and DOE guidelines and has 

preliminarily concluded that it is 

consistent with applicable policies in 

those guidelines. 

K. Review Under Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to the Office of 

Information and Regulatory Affairs 

(OIRA), Office of Management and 

Budget, a Statement of Energy Effects for 

any proposed significant energy action. 

A ‘‘significant energy action’’ is defined 

as any action by an agency that 

promulgated or is expected to lead to 

promulgation of a final rule, and that: 

(1) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; and (2) is likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy, or 

(3) is designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

This rulemaking would not have a 

significant adverse effect on the supply, 

distribution, or use of energy. Moreover, 

as the rulemaking would result in 

increased building energy efficiency, it 

would not have a significant adverse 

effect on energy. For these reasons, the 

rulemaking is not a significant energy 

action. Accordingly, DOE has not 

prepared a Statement of Energy Effects. 

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Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 61723 

L. Review Under the Information 

Quality Bulletin for Peer Review 

In consultation with the Office of 

Science and Technology Policy (OSTP), 

OMB issued on December 16, 2004, its 

‘‘Final Information Quality Bulletin for 

Peer Review’’ (the Bulletin). 70 FR 2664 

(January 14, 2005). The Bulletin 

establishes that certain scientific 

information shall be peer reviewed by 

qualified specialists before it is 

disseminated by the Federal 

government, including influential 

scientific information related to agency 

regulatory actions. The purpose of the 

Bulletin is to enhance the quality and 

credibility of the government’s scientific 

information. Under the Bulletin, EIA’s 

CBECS and RECS are ‘‘influential 

scientific information,’’ which the 

Bulletin defines as ‘‘scientific 

information that the agency reasonably 

can determine will have or does have a 

clear and substantial impact on 

important public policies or private 

sector decisions.’’ 70 FR 2664, 2667 

(January 14, 2005). The Academy 

recommendations have been peer 

reviewed pursuant to section II.2 of the 

Bulletin. Both surveys are peer reviewed 

internally within EIA and other DOE 

offices before they are published. In 

addition, both surveys are subject to 

public comment that EIA addresses 

before finalizing CBECS and RECS. 

List of Subjects in 10 CFR Parts 433 and 

435 

Buildings and facilities, Energy 

conservation, Engineers, Federal 

buildings and facilities, Fossil fuel 

reductions, Housing, Incorporation by 

reference, Multi-family residential 

buildings. 

Issued in Washington, DC, on September 

28, 2014. 

David Danielson, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy. 

For the reasons set forth in the 

preamble, DOE proposes to amend 

chapter II of title 10 of the Code of 

Federal Regulations as set forth below: 

PART 433—ENERGY EFFICIENCY 

STANDARDS FOR THE DESIGN AND 

CONSTRUCTION OF NEW FEDERAL 

COMMERCIAL AND MULTI-FAMILY 

HIGH-RISE RESIDENTIAL BUILDINGS 

■ 1. The authority citation for part 433 

continues to read as follows: 

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

6835; 42 U.S.C. 7101 et seq. 

■ 2. In § 433.1, paragraph (b) is added to 

read as follows: 

§ 433.1 Purpose and scope. 

* * * * * 

(b) This part also establishes a 

maximum allowable fossil fuelgenerated energy consumption standard 

for new Federal buildings that are 

commercial and multi-family high-rise 

residential buildings and major 

renovations to Federal buildings that are 

commercial and multi-family high-rise 

residential buildings, for which design 

for construction began on or after 

October 14, 2015. 

* * * * * 

■ 3. In § 433.2: 

■ a. Add in alphabetical order, the 

definitions of ‘‘Combined heat and 

power (CHP) system,’’ ‘‘Construction 

cost,’’ ‘‘District energy system,’’ ‘‘Fiscal 

year (FY),’’ ‘‘Major renovation,’’ ‘‘Multifamily high-rise residential building,’’ 

‘‘Power purchase agreement (PPA),’’ and 

‘‘Renewable energy certificate’’; 

■ b. Revise the definitions of ‘‘New 

Federal building’’ and ‘‘Proposed 

building’’; and 

■ c. Remove the definitions of ‘‘Lifecycle cost’’ and ‘‘Life-cycle costeffective’’. 

The additions and revisions read as 

follows: 

§ 433.2 Definitions. 

* * * * * 

Combined heat and power (CHP) 

system means an integrated system, 

located at or near a building or facility 

that is used to generate both heat and 

electricity for use in the building or 

facility. 

* * * * * 

Construction cost means all costs 

associated with design and construction 

of a building. It includes the cost of 

design, permitting, construction 

(materials and labor), and building 

commissioning. It does not include legal 

or administrative fees, or the cost of 

acquiring the land. 

* * * * * 

District energy system means a central 

energy conversion plant and 

transmission and distribution system 

that provides thermal energy to a group 

of buildings (heating via hot water or 

steam, and/or cooling via chilled water). 

This definition only includes thermal 

energy systems; central energy supply 

systems that only provide electricity are 

excluded from this definition. 

* * * * * 

Fiscal year (FY) begins on October 1 

of the year prior to the specified 

calendar year and ends on September 30 

of the specified calendar year. 

* * * * * 

Major renovation means changes to a 

building that provide significant 

opportunities for compliance with other 

applicable requirements in this part. For 

subpart B—reduction in fossil fuelrelated energy consumption, for 

example, replacement of the HVAC 

system, lighting system, building 

envelope, or other components of the 

building that have a major impact on 

energy usage would constitute a major 

renovation. 

Multi-family high-rise residential 

building means a residential building 

that contains 3 or more dwelling units 

and that is designed to be 4 or more 

stories above grade. 

New Federal building means any new 

building (including a complete 

replacement of an existing building 

from the foundation up) to be 

constructed by, or for the use of, any 

Federal agency. Such term shall include 

buildings built for the purpose of being 

leased by a Federal agency, and 

privatized military housing. 

Power purchase agreement means an 

agreement with an electricity producer 

for all or a specified portion of the 

electricity produced from a particular 

power source, in this case a renewable 

energy source, for a specified period of 

time. 

* * * * * 

Proposed Building means the design 

for construction of a new Federal 

commercial or multi-family high-rise 

residential building, or major renovation 

to a Federal commercial multi-family 

high-rise residential building, proposed 

for construction. 

* * * * * 

Renewable energy certificate means 

the technology and environmental (nonenergy) attributes that represent proof 

that 1 megawatt-hour (MWh) of 

electricity was generated from a 

renewable energy resource, and can be 

sold separately from the underlying 

generic electricity with which it is 

associated. 

■ 4. Revise § 433.3(b)(3) to read as 

follows: 

§ 433.3 Materials incorporated by 

reference. 

* * * * * 

(b) * * * 

(3) ANSI/ASHRAE/IESNA 90.1–2010, 

(‘‘ASHRAE 90.1–2010’’), Energy 

Standard for Buildings Except Low-Rise 

Residential Buildings, I–P Edition, 

Copyright 2010, IBR approved for 

§§ 433.2, 433.100, 433.101, Appendix A 

to subpart B. 

■ 5. Revise § 433.4 to read as follows: 

§ 433.4 Life-cycle cost-effective. 

Except as specified in subparts A, B 

or C of this part, Federal agencies shall 

determine life-cycle cost-effectiveness 

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61724 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

by using the procedures set out in 

subpart A of part 436 of this chapter. A 

Federal agency may choose to use any 

of four methods, including life-cycle 

cost, net savings, savings-to-investment 

ratio, and adjusted internal rate of 

return using the discount rate published 

in the annual supplement to the Life 

Cycle Costing Manual for the Federal 

Energy Management Program (NIST 85– 

3273). 

■ 6. Subpart B is added to part 433 to 

read as follows: 

Subpart B—Reduction in Fossil FuelGenerated Energy Consumption 

Sec. 

433.200 Fossil fuel-generated energy 

consumption requirement. 

433.201 Fossil fuel-generated energy 

consumption determination. 

433.202 Petition for downward adjustment. 

Appendix A to Subpart B of Part 433— 

Maximum Allowable Fossil Fuel-Generated 

Energy Consumption 

Subpart B—Reduction in Fossil FuelGenerated Energy Consumption 

§ 433.200 Fossil fuel-generated energy 

consumption requirement. 

(a) New Federal buildings. New 

Federal buildings that are commercial 

and multi-family high rise residential 

buildings, for which design for 

construction began on or after October 

14, 2015, must be designed to meet the 

requirements of paragraphs (c) or (d) of 

this section, as applicable, if: 

(1) The subject building is a public 

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

and for which transmittal of a 

prospectus to Congress is required 

under 40 U.S.C. 3307; or 

(2) The cost of the building is at least 

$2,500,000 (in 2007 dollars, adjusted for 

inflation). 

(b) Major renovations. (1) Major 

renovations to Federal buildings that are 

commercial and multi-family high-rise 

residential buildings, for which design 

for construction began on or after 

October 14, 2015, must be designed to 

meet the requirements of paragraph (c) 

or (d) of this section, as applicable, if: 

(i) The renovation is a major 

renovation to a public building as 

defined in 40 U.S.C. 3301 and for which 

transmittal of a prospectus to Congress 

is required under 40 U.S.C. 3307; or 

(ii) The cost of the major renovation 

is at least $2,500,000 (in 2007 dollars, 

adjusted for inflation). 

(2) This subpart applies only to the 

portions of the proposed building or 

proposed building systems that are 

being renovated and to the extent that 

the scope of the renovation permits 

compliance with the applicable 

requirements in this subpart. Unaltered 

portions of the proposed building or 

proposed building systems are not 

required to comply with this subpart. 

(3) For leased buildings, this subpart 

applies to major renovations only if the 

building was originally built for the use 

of any Federal agency, including being 

leased by a Federal agency. 

(c) Federal buildings that are of the 

type included in Appendix A of this 

subpart—(1) Design for construction 

began during fiscal year 2014 through 

fiscal year 2029. The fossil fuelgenerated energy consumption of the 

proposed building, based on the 

building design and calculated 

according to § 433.201(a), must not 

exceed the value identified in Tables 1– 

4 of Appendix A of this subpart for the 

associated building type, climate zone, 

and fiscal year in which design for 

construction began. 

(2) Design for construction began 

during or after fiscal year 2030. The 

fossil fuel-generated energy 

consumption of the proposed building, 

based on building design and calculated 

according to § 433.201(a), must be zero. 

(3) Mixed-use buildings. (i) For 

buildings that combine two or more 

building types identified in Tables 1–4 

of Appendix A of this subpart, the 

maximum allowable fossil fuelgenerated energy consumption of the 

proposed building is equal to the 

averaged applicable building type 

values in Tables 1–4 weighted by floor 

area of the present building types. 

(ii) For example, if a proposed 

building for which design for 

construction began in FY2014 that is to 

be built in climate zone 1 has a total of 

200 square feet—100 square feet of 

which qualifies as College/University 

and 100 square feet of which qualifies 

as Laboratory—the maximum allowable 

fossil fuel-generated energy 

consumption is equal to: 

[(100 sqft. × 89 kBtu/yr.-sqft.) + (100 sqft 

× 251 kBtu/yr.-sqft.)]/200 sqft. = 170 

kBtu/yr.-sqft. 

(d) Federal buildings that are of the 

type not included in Appendix A of this 

subpart—(1) Process load buildings. For 

building types that are not included in 

any of the building types listed in 

Tables 1–4 of Appendix A of this 

subpart, Federal agencies must select 

the applicable building type, climate 

zone, and fiscal year in which design for 

construction began from Tables 1–4 of 

Appendix A of this subpart that most 

closely corresponds to the proposed 

building without the process load. The 

estimated fossil fuel-generated energy 

consumption of the process load must 

be added to the maximum allowable 

fossil fuel-generated energy 

consumption of the applicable building 

type for the appropriate fiscal year and 

climate zone to calculate the maximum 

allowable fossil fuel-generated energy 

consumption for the building. The same 

estimated fossil fuel-generated energy 

consumption of the process load that is 

added to the maximum allowable fossil 

fuel-generated energy consumption of 

the applicable building must also be 

used in determining the fossil fuelgenerated energy consumption of the 

proposed building. 

(2) Mixed-use buildings. For buildings 

that combine two or more building 

types with process loads or, 

alternatively, that combine one or more 

building types with process loads with 

one or more building types in Tables 1– 

4 of Appendix A of this subpart, the 

maximum allowable fossil fuelgenerated energy consumption of the 

proposed building is equal to the 

averaged process load building values 

determined under paragraph (d)(1) of 

this section and the applicable building 

type values in Tables 1–4 of Appendix 

A of this subpart, weighted by floor 

area. 

§ 433.201 Fossil fuel-generated energy 

consumption determination. 

(a) The fossil fuel-generated energy 

consumption of a proposed building is 

calculated as follows: 

Equation 1: Fossil fuel-generated energy 

consumption = ((3.412 kBtu/kwh × 

Fossil Fuel Generation Factor × 

(Proposed Building Site Electricity 

Consumption—Renewable Energy and 

CHP Electricity Deduction)/Electricity 

Source Energy Factor) + (Direct Fossil 

Fuel Consumption of Proposed 

Building × Other Fuels Source Energy 

Multiplier))/Floor Area 

Whereas: 

(1) Fossil Fuel-Generation Factor is 

equal to 

(AEPcoal+AEPpl+AEPpc+AEPng+AEPog)/ 

Total AEP 

Where 

AEP = annual electrical production 

pl = petroleum liquids 

pc = petroleum coke 

ng = natural gas 

og = other gas 

All values are taken from Table 3.2.A 

of the EIA Electric Power Annual 

Report, which is updated on a periodic 

basis. DOE will on an annual basis 

calculate the Fossil Fuel Generation 

Factor and publish the result at the 

following Web address: http://energy.

gov/eere/femp/federal-energymanagement-program. 

(2) Proposed Building Site Electricity 

Consumption equals the estimated site 

electricity consumption of the proposed 

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Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 61725 

building calculated in accordance with 

the Performance Rating Method in 

Appendix G of ASHRAE 90.1–2010 

(incorporated by reference; see § 433.3) 

measured in kilowatt hours per year 

(kWh/yr). 

(3) Renewable Energy and CHP 

Electricity Deduction equals the total 

contribution specified in paragraph (b) 

of this section, measured in kilowatt 

hours per year (kWh/yr). 

(4) Electricity Source Energy Factor. 

For electricity purchased from the grid, 

the Electricity Source Energy Factor is 

equal to 0.316. For on-site electrical 

generation, the Electricity Source Factor 

is the estimated efficiency of the 

generating equipment and any estimated 

distribution losses that may occur. 

(5) Direct Fossil Fuel Consumption of 

Proposed Building equals the total site 

fossil fuel consumption of the proposed 

building calculated in accordance with 

the Performance Rating Method in 

Appendix G of ASHRAE 90.1–2010 

(incorporated by reference; see § 433.3), 

excluding fossil fuel consumption for 

electricity generation, and measured in 

thousands of British thermal units per 

year (kBtu/yr). This includes any fossil 

fuel consumption attributable to nonelectric power (e.g., heat or steam) used 

in a proposed building that is supplied 

by a district energy system or CHP 

system. 

(6) Other Fuels Source Energy 

Multiplier. For purposes of Equation 1, 

the multipliers are as follows: 

Natural gas 1.046 

Fuel oil 1.00 

Propane 1.00 

District steam (non-CHP) 1.35 

District steam (CHP) 2.30 

District hot water 1.28 

Chilled water 1.05 

Coal 1.00 

(7) Floor Area is the area enclosed by 

the exterior walls of a building, both 

finished and unfinished, including 

indoor parking facilities, basements, 

hallways, lobbies, stairways, and 

elevator shafts. 

(b) Renewable and CHP electricity 

deductions—(1) Renewable electricity. 

The following renewable electricity 

generation qualifies as a deduction 

under paragraph (a) of this section to the 

extent that the renewable electricity 

generation represents new electric 

generating capacity or a new renewable 

energy obligation on the part of the 

agency, and not a reassignment of 

existing capacity or obligations: 

(i) On-site renewable electricity 

generation is the amount of electricity 

measured in kilowatt hours per year 

(kWh/yr) to be consumed by the 

building that is contributed by 

renewable electricity generated at the 

Federal site or facility on which the 

building will be located. On-site 

renewable electricity can only be 

deducted if the environmental attributes 

are not transferred. 

(ii) Off-site renewable electricity 

generation is the amount of renewable 

electricity measured in kilowatt hours 

per year (kWh/yr) generated at a site or 

facility, either Federal or non-federal, 

other than the Federal site or facility on 

which the building will be located and 

that is designated for the purpose of 

complying with this section, and may 

include renewable electricity generation 

purchased under Power Purchase 

Agreements and Renewable Energy 

Certificates. 

(2) Limitation on the use of renewable 

electricity generation for new Federal 

buildings and major renovations. The 

environmental attributes of the 

renewable electricity generation must 

not be transferred. The agency must 

ensure that the environmental attributes 

of renewable electricity generation are 

dedicated to meeting the fossil fuelgenerated energy consumption 

reduction requirements of the proposed 

building. 

(3) CHP deduction. Electricity 

associated with non-electric power 

provided to a proposed building by a 

district energy system that is a CHP 

system or an on-site CHP system 

qualifies as a deduction under 

paragraph (a) of this section and is equal 

to the total heat delivered to the 

proposed building from the direct 

energy system divided by total heat 

produced by the CHP system, times the 

total electricity produced by the CHP 

system. 

§ 433.202 Petition for downward 

adjustment. 

(a) New Federal buildings. (1) Upon 

petition by a Federal agency, excluding 

the General Services Administration 

(GSA) but including GSA-tenant 

agencies with significant control over 

building design, the Director of the 

Federal Energy Management Program 

may adjust the applicable maximum 

allowable fossil fuel-generated energy 

consumption standard with respect to a 

specific building, upon written 

certification from the head of the agency 

designing the building, or the head of a 

GSA-tenant agency, that the requested 

adjustment is the largest feasible 

reduction in fossil fuel-generated 

consumption that can practicably be 

achieved in light of the specified 

functional needs for that building, as 

demonstrated by: 

(i) A statement sealed by the design 

engineer that the proposed building was 

designed in accordance with the 

applicable energy efficiency 

requirement in Subpart A of this Part; 

(ii) A description of the technologies 

and practices that were evaluated and 

rejected, including a justification of why 

they were not included in the design for 

construction; and 

(iii) Any other information the agency 

determines would help explain its 

request; 

(2) The head of the agency designing 

the building, or the head of a GSAtenant agency, must also include the 

following information in the petition: 

(i) A general description of the 

building, including but not limited to 

location, use type, floor area, stories, 

and functional needs; 

(ii) The maximum allowable fossil 

fuel-generated energy consumption for 

the building from Tables 1–4 of 

Appendix A of this subpart; 

(iii) The estimated fossil fuelgenerated energy consumption of the 

proposed building; 

(iv) A description of the proposed 

building’s energy-related features, 

including but not limited to: 

(A) Building envelope, including, but 

not limited to, construction materials, 

insulation levels, and the type, area, 

heat loss and solar heat gain and visible 

light transmission coefficients of 

windows and other glazing; 

(B) HVAC system type and 

configuration; 

(C) HVAC equipment sizes and 

efficiencies; 

(D) Ventilation systems (including 

outdoor air volume, controls technique, 

heat recovery systems, and economizers, 

if applicable); 

(E) Service water heating system 

configuration and equipment (including 

solar hot water, wastewater heat 

recovery, and controls for circulating 

hot water systems, if applicable); 

(F) Lighting technology, interior 

lighting power, and lighting control 

techniques; 

(G) Estimated process and plug loads; 

and 

(H) Any other energy-related 

equipment; and 

(3) The Director of the Federal Energy 

Management Program may concur in 

whole or in part with a petition. Upon 

concurring in part, the Director of the 

Federal Energy Management Program 

will establish an applicable maximum 

allowable fossil fuel-generated energy 

consumption standard with respect to a 

specific building other than the value 

put forth in the petition. 

(4) Petitions for downward 

adjustment should be submitted to 

ff-petition@ee.doe.gov, or to: 

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61726 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

U.S. Department of Energy, Federal 

Energy Management Program, 

Director, Fossil Fuel Reductions in 

New Federal Buildings, EE–2L, 1000 

Independence Ave. SW., Washington, 

DC 20585–0121. 

(5) The Director will notify the 

requesting agency in writing whether 

the petition for downward adjustment to 

the numeric reduction requirement is 

approved, in whole or in part, or 

rejected, within 90 days of submittal. If 

the Director rejects the petition or 

establishes a value other than that 

presented in the petition, the Director 

will forward its reasons for rejection to 

the petitioning agency. 

(b) Major renovations to Federal 

buildings. (1) Major renovation of the 

whole building. Upon petition by a 

Federal agency, excluding the General 

Services Administration (GSA) but 

including GSA-tenant agencies with 

significant control over renovation 

design, the Director of the Federal 

Energy Management Program will adjust 

the applicable maximum allowable 

fossil fuel-generated energy 

consumption standard with respect to a 

specific major renovation of a whole 

building, upon written certification 

from the head of the agency designing 

the building, or the head of a GSAtenant agency, that the requested 

adjustment is the largest feasible 

reduction in fossil fuel-generated 

consumption that can practicably be 

achieved in light of the specified 

functional needs for that building, as 

demonstrated by a statement stamped 

by the design engineer that the proposed 

building was designed consistent with 

the energy efficiency requirement in 

subpart A of this part that corresponds 

to the date of the proposed building. 

(2) Major renovation of a building 

system or component. Upon petition by 

a Federal agency, excluding the General 

Services Administration (GSA) but 

including GSA-tenant agencies with 

significant control over renovation 

design, the Director of the Federal 

Energy Management Program will adjust 

the applicable maximum allowable 

fossil fuel-generated energy 

consumption standard with respect to a 

specific major renovation limited to a 

building system or component, upon 

written certification from the head of 

the agency designing the building, or 

the head of a GSA-tenant agency, that 

the requested adjustment is the largest 

feasible reduction in fossil fuelgenerated consumption that can 

practicably be achieved in light of the 

specified functional needs for that 

building, as demonstrated by a 

statement stamped by the design 

engineer that the proposed building 

incorporates commercially available 

systems and/or components that 

provide a level of energy efficiency that 

is life-cycle cost effective. 

(3) Petitions for downward 

adjustment should be submitted to 

ff-petition@ee.doe.gov, or to: 

U.S. Department of Energy, Federal 

Energy Management Program, 

Director, Fossil Fuel Reductions in 

New Federal Buildings, EE–2L, 1000 

Independence Ave. SW., Washington, 

DC 20585–0121. 

(4) The downward adjustment for a 

major renovation will be deemed 

approved upon submittal of the 

certification required in paragraphs 

(b)(1) or (b)(2) of this section, as 

applicable. 

Appendix A to Subpart B of Part 433— 

Maximum Allowable Fossil FuelGenerated Energy Consumption 

(a) For purposes of the tables in this 

Appendix, the climate zones for each county 

in the United States are those listed in 

Normative Appendix B Building Envelope 

Climate Criteria, Table B–1 U.S. Climate 

Zones, ASHRAE 90.1–2010 (incorporated by 

reference; see § 433.3). 

(b) For purpose of Appendix A, the 

following definitions apply: 

Education means a category of buildings 

used for academic or technical classroom 

instruction, such as elementary, middle, or 

high schools, and classroom buildings on 

college or university campuses. Buildings on 

education campuses for which the main use 

is not as a classroom are included in the 

category relating to their use. For example, 

administration buildings are part of ‘‘Office,’’ 

dormitories are ‘‘Lodging,’’ and libraries are 

‘‘Public Assembly.’’ 

Food Sales means a category of buildings 

used for retail or wholesale of food. For 

example, grocery stores are ‘‘Food Sales.’’ 

Food Service means a category of buildings 

used for preparation and sale of food and 

beverages for consumption. For example, 

restaurants are ‘‘Food Service.’’ 

Health Care (Inpatient) means a category of 

buildings used as diagnostic and treatment 

facilities for inpatient care. 

Health Care (Outpatient) means a category 

of buildings used as diagnostic and treatment 

facilities for outpatient care. Medical offices 

are included here if they use any type of 

diagnostic medical equipment (if they do not, 

they are categorized as an office building). 

Laboratory means a category of buildings 

equipped for scientific experimentation or 

research as well as other technical, analytical 

and administrative activities. 

Lodging means a category of buildings used 

to offer multiple accommodations for shortterm or long-term residents, including skilled 

nursing and other residential care buildings. 

Mercantile (Enclosed and Strip Malls) 

means a category of shopping malls 

comprised of multiple connected 

establishments. 

Multi-Family High-Rise Residential 

Buildings means a category of residential 

buildings that contain 3 or more dwelling 

units and that is designed to be 4 or more 

stories above grade. 

Office means a category of buildings used 

for general office space, professional office, 

or administrative offices. Medical offices are 

included here if they do not use any type of 

diagnostic medical equipment (if they do, 

they are categorized as an outpatient health 

care building). 

Public Assembly means a category of 

public or private buildings, or spaces therein, 

in which people gather for social or 

recreational activities. 

Public Order and Safety means a category 

of buildings used for the preservation of law 

and order or public safety. 

Religious Worship means a category of 

buildings in which people gather for 

religious activities, (such as chapels, 

churches, mosques, synagogues, and 

temples). 

Retail (Other Than Mall) means a category 

of buildings used for the sale and display of 

goods other than food. 

Service means a category of buildings in 

which some type of service is provided, other 

than food service or retail sales of goods. 

Warehouse and Storage means a category 

of buildings used to store goods, 

manufactured products, merchandise, raw 

materials, or personal belongings (such as 

self-storage). 

TABLE 1—FY2013–FY2014 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING CATEGORY, BUILDING TYPE AND CLIMATE ZONE, COMMERCIAL BUILDINGS AND MULTI-FAMILY HIGH-RISE RESIDENTIAL

BUILDINGS

[Source kBtu/yr-sqft] 

Building category Climate zone 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building type Fossil fuel-generated energy use intensity 

Education ............... College/university 89 88 87 81 59 84 71 73 65 70 77 65 92 82 97 146 

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Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 61727 

TABLE 1—FY2013–FY2014 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING CATEGORY, BUILDING TYPE AND CLIMATE ZONE, COMMERCIAL BUILDINGS AND MULTI-FAMILY HIGH-RISE RESIDENTIAL

BUILDINGS—Continued 

[Source kBtu/yr-sqft] 

Building category Climate zone 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building type Fossil fuel-generated energy use intensity 

Education ............... Elementary/middle 

school.

54 54 52 49 40 50 45 41 39 39 42 37 47 43 48 71 

Education ............... High school ........... 65 65 63 59 43 61 52 53 48 51 56 48 67 60 71 106 

Education ............... Other classroom 

education.

36 36 35 33 24 34 29 30 27 29 31 27 37 33 40 59 

Education ............... Preschool/daycare 70 69 67 63 52 65 58 53 50 51 54 47 60 56 62 92 

Food Sales ............. Convenience store 194 215 208 197 178 213 189 164 173 181 166 153 181 200 199 259 

Food Sales ............. Convenience store 

with gas.

156 173 167 158 144 171 152 132 139 146 133 124 145 161 160 209 

Food Sales ............. Grocery store/food 

market.

162 179 173 164 149 177 158 137 144 151 138 128 150 167 166 216 

Food Sales ............. Other food sales ... 49 54 52 50 45 54 48 41 44 46 42 39 46 50 50 65 

Food Service .......... Fast food ............... 378 395 402 358 333 407 338 303 323 327 308 286 339 373 375 490 

Food Service .......... Other food service 112 117 118 106 97 120 100 90 96 98 91 84 100 110 111 144 

Food Service .......... Restaurant/cafeteria.204 214 216 195 177 219 183 164 175 180 166 154 182 202 203 264 

Inpatient Health 

Care.

Hospital/inpatient 

health.

205 210 215 182 188 212 174 142 149 156 129 120 133 146 137 163 

Laboratory .............. Laboratory ............. 251 254 247 233 197 245 217 196 190 192 203 184 229 216 238 320 

Lodging .................. Dormitory/fraternity/sorority.58 61 61 62 42 63 56 58 53 59 65 55 76 70 84 118 

Lodging .................. Hotel ..................... 71 73 70 67 62 70 68 55 57 57 57 55 62 62 64 74 

Lodging .................. Motel or inn ........... 80 76 76 66 63 73 65 52 54 52 52 50 57 55 56 68 

Lodging .................. Nursing home/assisted living.118 12 117 110 93 115 103 93 90 91 96 87 108 102 112 151 

Lodging .................. Other lodging ........ 76 73 72 63 60 69 62 50 52 50 50 48 54 53 54 65 

Mercantile .............. Enclosed mall ....... 81 81 79 77 58 78 68 69 64 66 77 67 91 84 99 143 

Mercantile .............. Strip shopping mall 85 85 83 81 61 82 72 72 67 69 81 70 96 89 104 150 

Office ...................... Administrative/profess. office.56 58 57 54 43 56 47 46 43 44 48 42 54 50 57 80 

Office ...................... Bank/other financial.80 82 80 77 62 79 67 65 61 62 67 59 77 71 81 114 

Office ...................... Government office 70 72 71 67 54 70 59 57 54 55 59 52 68 62 71 100 

Office ...................... Medical office 

(non-diagnostic).

48 49 48 46 37 48 40 39 37 37 40 36 46 42 48 68 

Office ...................... Mixed-use office ... 65 67 65 63 50 65 54 53 50 51 55 48 63 58 66 93 

Office ...................... Other office ........... 54 56 55 52 42 54 45 44 42 42 46 40 52 48 55 78 

Outpatient Health 

Care.

Clinic/other outpatient health.72 70 70 63 60 70 56 48 50 46 45 44 47 48 45 52 

Outpatient Health 

Care.

Medical office (diagnostic).48 46 47 42 40 46 38 32 33 31 30 30 32 32 30 35 

Public Assembly ..... Entertainment/culture.33 33 32 30 26 32 28 26 25 25 26 24 30 28 31 42 

Public Assembly ..... Library ................... 86 87 85 80 68 84 75 68 65 66 70 63 79 74 82 110 

Public Assembly ..... Other public assembly.40 40 39 37 31 39 34 31 30 30 32 29 36 34 38 51 

Public Assembly ..... Recreation ............ 37 38 37 35 29 36 32 29 28 29 30 27 34 32 35 47 

Public Assembly ..... Social/meeting ...... 39 39 38 36 31 38 34 30 29 30 31 28 35 33 37 49 

Public Order & 

Safety.

Fire station/police 

station.

92 93 91 86 73 90 80 72 70 71 75 68 84 80 88 118 

Public Order & 

Safety.

Other public order 

and safety.

84 85 83 78 66 82 73 66 64 65 68 62 77 73 80 107 

Religious Worship .. Religious worship 33 33 32 31 26 32 29 26 25 25 27 24 30 28 31 42 

Retail (except 

malls).

Other retail ............ 70 72 70 68 50 69 59 60 56 56 66 58 79 73 85 123 

Retail (except 

malls).

Retail store ........... 40 41 40 39 28 39 34 34 32 32 38 33 45 42 49 71 

Retail (except 

malls).

Vehicle dealership 

showroom.

71 72 70 68 50 69 59 60 56 57 67 58 79 73 85 123 

Service ................... Other service ........ 85 86 84 79 65 83 71 67 63 64 69 66 76 70 81 104 

Service ................... Post office/postal 

center.

60 61 59 56 47 59 52 47 45 46 49 44 55 52 57 77 

Service ................... Repair shop .......... 40 40 39 37 31 39 34 32 30 30 33 31 36 33 38 49 

Service ................... Vehicle service/repair shop.46 47 46 43 36 45 39 37 34 35 38 36 42 38 44 57 

Service ................... Vehicle storage/

maintenance.

20 20 20 19 15 20 17 16 15 15 16 16 18 17 19 25 

Warehouse ............. Distribution/shipping center.18 23 24 26 14 26 20 27 24 23 35 32 49 41 59 108 

Warehouse ............. Non-refrigerated 

warehouse.

9 11 11 13 7 12 9 13 12 11 17 15 24 20 29 52 

Warehouse ............. Refrigerated warehouse.97 100 102 90 81 101 80 75 78 79 74 68 82 89 90 123 

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61728 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

TABLE 1—FY2013–FY2014 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING CATEGORY, BUILDING TYPE AND CLIMATE ZONE, COMMERCIAL BUILDINGS AND MULTI-FAMILY HIGH-RISE RESIDENTIAL

BUILDINGS—Continued 

[Source kBtu/yr-sqft] 

Building category Climate zone 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building type Fossil fuel-generated energy use intensity 

Residential ............. Multi-family highrise residential.48 46 39 41 24 40 28 41 37 41 45 38 52 46 55 72 

TABLE 2—FY2015–FY2019 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING CATEGORY, BUILDING TYPE AND CLIMATE ZONE, COMMERCIAL BUILDINGS AND MULTI-FAMILY HIGH-RISE RESIDENTIAL

BUILDINGS

[Source kBtu/yr-sqft] 

Building category Climate zone 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building type Fossil fuel-generated energy use intensity 

Education ............... College/university 69 69 67 63 46 65 55 56 51 55 60 51 71 64 76 113 

Education ............... Elementary/middle 

school.

42 42 40 38 31 39 35 32 30 31 32 29 36 34 37 56 

Education ............... High school ........... 51 50 49 46 34 48 40 41 37 40 44 37 52 47 55 83 

Education ............... Other classroom 

education.

28 28 28 26 19 27 23 23 21 22 24 21 29 26 31 46 

Education ............... Preschool/daycare 55 54 52 49 40 50 45 41 39 39 42 37 47 43 48 72 

Food Sales ............. Convenience store 151 167 161 153 139 165 147 128 134 141 129 119 140 156 155 202 

Food Sales ............. Convenience store 

with gas.

122 135 130 123 112 133 119 103 108 113 104 96 113 125 125 163 

Food Sales ............. Grocery store/food 

market.

126 139 135 127 116 138 123 106 112 117 107 99 117 130 129 168 

Food Sales ............. Other food sales ... 38 42 41 39 35 42 37 32 34 36 32 30 35 39 39 51 

Food Service .......... Fast food ............... 294 307 313 279 259 317 263 235 251 255 239 222 264 290 292 381 

Food Service .......... Other food service 87 91 92 83 75 93 78 70 74 76 71 66 78 86 86 112 

Food Service .......... Restaurant/cafeteria.159 166 168 151 138 170 143 128 136 140 129 120 142 157 158 206 

Inpatient Health 

Care.

Hospital/inpatient 

health.

159 164 167 142 146 165 136 111 116 121 100 93 103 113 107 127 

Laboratory .............. Laboratory ............. 195 197 192 182 153 190 169 153 148 150 158 143 178 168 185 249 

Lodging .................. Dormitory/fraternity/.

sorority ..................

45 48 47 48 32 49 44 45 41 46 50 43 59 54 65 92 

Lodging .................. Hotel ..................... 56 57 54 52 48 55 53 43 44 44 44 43 48 48 49 58 

Lodging .................. Motel or inn ........... 62 59 59 52 49 57 51 41 42 41 41 39 44 43 44 53 

Lodging .................. Nursing home/assisted living.92 93 91 86 72 90 80 72 70 71 75 67 84 79 87 117 

Lodging .................. Other lodging ........ 59 56 56 49 47 54 49 39 40 39 39 37 42 41 42 51 

Mercantile .............. Enclosed mall ....... 63 63 62 60 45 61 53 53 50 51 60 52 71 66 77 111 

Mercantile .............. Strip shopping mall 66 66 65 63 47 64 56 56 52 54 63 54 74 69 81 117 

Office ...................... Administrative/profess. office.44 45 44 42 34 43 36 36 33 34 37 32 42 39 44 63 

Office ...................... Bank/other financial.62 64 62 60 48 62 52 51 48 49 52 46 60 55 63 89 

Office ...................... Government office 55 56 55 52 42 54 46 45 42 43 46 40 53 48 55 78 

Office ...................... Medical office 

(non-diagnostic).

37 38 37 36 29 37 31 30 29 29 31 28 36 33 38 53 

Office ...................... Mixed-use office ... 51 52 51 49 39 50 42 41 39 40 43 38 49 45 51 72 

Office ...................... Other office ........... 42 44 43 41 33 42 35 35 32 33 36 31 41 37 43 60 

Outpatient Health 

Care.

Clinic/other outpatient health.56 54 55 49 46 54 44 37 39 36 35 35 37 37 35 40 

Outpatient Health 

Care.

Medical office (diagnostic).37 36 36 32 31 36 29 25 26 24 23 23 25 25 23 27 

Public Assembly ..... Entertainment/culture.25 26 25 24 20 25 22 20 19 20 21 19 23 22 24 32 

Public Assembly ..... Library ................... 67 68 66 62 53 65 58 53 51 51 54 49 61 58 64 86 

Public Assembly ..... Other public assembly.31 31 30 29 24 30 27 24 23 24 25 23 28 27 29 39 

Public Assembly ..... Recreation ............ 29 29 29 27 23 28 25 23 22 22 23 21 26 25 27 37 

Public Assembly ..... Social/meeting ...... 30 31 30 28 24 29 26 24 23 23 24 22 28 26 29 38 

Public Order & 

Safety.

Fire station/police 

station.

72 73 71 67 56 70 62 56 54 55 58 53 66 62 68 92 

Public Order & 

Safety.

Other public order 

and safety.

65 66 65 61 51 64 57 51 50 50 53 48 60 56 62 83 

Religious Worship .. Religious worship 26 26 25 24 20 25 22 20 19 20 21 19 23 22 24 33 

Retail (except 

malls).

Other retail ............ 55 56 55 53 39 53 46 47 44 44 52 45 61 57 66 96 

Retail (except 

malls).

Retail store ........... 31 32 31 30 22 31 26 27 25 25 30 26 35 32 38 55 

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Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 61729 

TABLE 2—FY2015–FY2019 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING CATEGORY, BUILDING TYPE AND CLIMATE ZONE, COMMERCIAL BUILDINGS AND MULTI-FAMILY HIGH-RISE RESIDENTIAL

BUILDINGS—Continued 

[Source kBtu/yr-sqft] 

Building category Climate zone 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building type Fossil fuel-generated energy use intensity 

Retail (except 

malls).

Vehicle dealership 

showroom.

55 56 55 53 39 54 46 47 44 44 52 45 62 57 66 96 

Service ................... Other service ........ 66 67 65 61 51 64 55 52 49 50 54 51 59 55 63 81 

Service ................... Post office/postal 

center.

47 47 46 43 37 46 40 37 35 36 38 34 43 40 44 60 

Service ................... Repair shop .......... 31 31 31 29 24 30 26 25 23 23 25 24 28 26 30 38 

Service ................... Vehicle service/repair shop.36 36 36 34 28 35 30 28 27 27 29 28 33 30 34 44 

Service ................... Vehicle storage/

maintenance.

16 16 15 15 12 15 13 12 12 12 13 12 14 13 15 19 

Warehouse ............. Distribution/shipping center.14 18 18 20 11 20 15 21 19 18 27 25 38 32 46 84 

Warehouse ............. Non-refrigerated 

warehouse.

7 8 9 10 5 10 7 10 9 9 13 12 18 15 22 41 

Warehouse ............. Refrigerated warehouse.76 78 79 70 63 78 62 58 61 61 58 53 64 69 70 96 

Residential ............. Multi-family highrise residential.37 36 30 32 18 31 22 32 29 32 35 30 40 36 42 56 

TABLE 3—FY2020–FY2024 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING CATEGORY, BUILDING TYPE AND CLIMATE ZONE, COMMERCIAL BUILDINGS AND MULTI-FAMILY HIGH-RISE RESIDENTIAL

BUILDINGS

[Source kBtu/yr-sqft] 

Building category Climate zone 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building type Fossil fuel-generated energy use intensity 

Education ............... College/university 40 39 39 36 26 37 32 32 29 31 34 29 41 36 43 65 

Education ............... Elementary/middle 

school.

24 24 23 22 18 22 20 18 17 17 19 16 21 19 21 32 

Education ............... High school ........... 29 29 28 26 19 27 23 24 21 23 25 21 30 27 32 47 

Education ............... Other classroom 

education.

16 16 16 15 11 15 13 13 12 13 14 12 17 15 18 26 

Education ............... Preschool/daycare 31 31 30 28 23 29 26 24 22 23 24 21 27 25 28 41 

Food Sales ............. Convenience store 86 95 92 87 39 95 84 73 77 81 74 68 80 89 88 115 

Food Sales ............. Convenience store 

with gas.

70 77 74 70 64 76 68 59 62 65 59 55 65 72 71 93 

Food Sales ............. Grocery store/food 

market.

72 80 77 73 66 79 70 61 64 67 61 57 67 74 74 96 

Food Sales ............. Other food sales ... 22 24 23 22 20 24 21 18 19 20 19 17 20 22 22 29 

Food Service .......... Fast food ............... 168 175 179 159 148 181 150 135 144 146 137 127 151 166 167 218 

Food Service .......... Other food service 50 52 52 47 43 53 45 40 42 44 40 37 44 49 49 54 

Food Service .......... Restaurant/cafeteria.91 95 96 86 79 97 81 73 78 80 74 69 81 90 90 117 

Inpatient Health 

Care.

Hospital/inpatient 

health.

91 94 95 81 83 94 77 63 66 69 57 53 59 65 61 73 

Laboratory .............. Laboratory ............. 112 113 110 104 88 109 97 87 84 86 90 82 102 96 106 142 

Lodging .................. Dormitory/fraternity/sorority.26 27 27 27 19 28 25 26 23 26 29 24 34 31 37 52 

Lodging .................. Hotel ..................... 32 33 31 30 27 31 30 25 25 25 25 24 28 28 28 33 

Lodging .................. Motel or inn ........... 36 34 34 29 28 32 29 23 24 23 23 22 25 25 25 30 

Lodging .................. Nursing home/assisted living.53 53 52 49 41 51 46 41 40 40 43 39 48 45 50 67 

Lodging .................. Other lodging ........ 34 32 32 28 27 31 28 22 23 22 22 21 24 23 24 29 

Mercantile .............. Enclosed mall ....... 36 36 35 34 26 35 30 31 29 29 34 30 41 37 44 63 

Mercantile .............. Strip shopping mall 38 38 37 36 27 36 32 32 30 31 36 31 43 39 46 67 

Office ...................... Administrative/profess. office.25 26 25 24 19 25 21 20 19 20 21 19 24 22 25 36 

Office ...................... Bank/other financial.35 37 36 34 27 35 30 29 27 28 30 26 34 31 36 51 

Office ...................... Government office 31 32 31 30 24 31 26 26 24 24 26 23 30 28 32 45 

Office ...................... Medical office 

(non-diagnostic).

21 22 21 20 16 21 18 17 16 17 18 16 21 19 21 30 

Office ...................... Mixed-use office ... 29 30 29 28 22 29 24 24 22 23 24 21 28 26 29 41 

Office ...................... Other office ........... 24 25 24 23 19 24 20 20 18 19 20 18 23 21 24 35 

Outpatient Health 

Care.

Clinic/other outpatient health.32 31 31 28 26 31 25 21 22 20 20 20 21 21 20 23 

Outpatient Health 

Care.

Medical office (diagnostic).21 21 21 19 18 21 17 14 15 14 13 13 14 14 13 15 

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61730 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

TABLE 3—FY2020–FY2024 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING CATEGORY, BUILDING TYPE AND CLIMATE ZONE, COMMERCIAL BUILDINGS AND MULTI-FAMILY HIGH-RISE RESIDENTIAL

BUILDINGS—Continued 

[Source kBtu/yr-sqft] 

Building category Climate zone 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building type Fossil fuel-generated energy use intensity 

Public Assembly ..... Entertainment/culture.15 15 14 14 11 14 13 11 11 11 12 11 13 13 14 19 

Public Assembly ..... Library ................... 38 39 38 36 30 37 33 30 29 29 31 28 35 33 36 49 

Public Assembly ..... Other public assembly.18 18 17 16 14 17 15 14 13 14 14 13 16 15 17 23 

Public Assembly ..... Recreation ............ 17 17 16 15 13 16 14 13 13 13 13 12 15 14 16 21 

Public Assembly ..... Social/meeting ...... 17 17 17 16 14 17 15 13 13 13 14 13 16 15 16 22 

Public Order & 

Safety.

Fire station/police 

station.

41 41 40 38 32 40 36 32 31 32 33 30 38 35 39 52 

Public Order & 

Safety.

Other public order 

and safety.

37 38 37 35 29 36 32 29 28 29 30 27 34 32 35 48 

Religious Worship .. Religious worship 15 15 14 14 12 14 13 11 11 11 12 11 13 13 14 19 

Retail (except 

malls).

Other retail ............ 31 32 31 30 22 30 26 27 25 25 30 26 35 32 38 55 

Retail (except 

malls).

Retail store ........... 18 18 18 17 14 17 15 15 14 14 17 15 20 19 22 31 

Retail (except 

malls).

Vehicle dealership 

showroom.

31 32 31 30 22 31 26 27 25 25 30 26 35 32 38 55 

Service ................... Other service ........ 38 38 37 35 29 37 32 30 28 28 31 29 34 31 36 46 

Service ................... Post office/postal 

center.

27 27 26 25 21 26 23 21 20 20 22 20 24 23 25 34 

Service ................... Repair shop .......... 18 18 18 17 14 17 15 14 13 13 14 14 16 15 17 22 

Service ................... Vehicle service/repair shop.21 21 20 19 16 20 17 16 15 16 17 16 19 17 20 25 

Service ................... Vehicle storage/

maintenance.

9 9 9 8 7 9 8 7 7 7 7 7 8 7 9 11 

Warehouse ............. Distribution/shipping center.8 10 11 12 6 11 9 12 11 10 16 14 22 18 26 48 

Warehouse ............. Non-refrigerated 

warehouse.

4 5 5 6 3 6 4 6 5 5 8 7 11 9 13 23 

Warehouse ............. Refrigerated warehouse.43 45 45 40 36 45 36 33 35 35 33 30 36 39 40 55 

Residential ............. Multi-family highrise residential.21 20 17 18 11 18 12 18 16 18 20 17 23 21 24 32 

TABLE 4—FY2025–FY2029 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING CATEGORY, BUILDING TYPE AND CLIMATE ZONE, COMMERCIAL BUILDINGS AND MULTI-FAMILY HIGH-RISE RESIDENTIAL

BUILDINGS

[Source kBtu/yr-sqft] 

Building category Climate zone 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building type Fossil fuel-generated energy use intensity 

Education ............... College/university 20 20 19 18 13 19 16 16 15 16 17 14 20 18 22 32 

Education ............... Elementary/middle 

school.

12 12 12 11 9 11 10 9 9 9 9 8 10 10 11 16 

Education ............... High school ........... 14 14 14 13 10 14 12 12 11 11 13 11 15 13 16 24 

Education ............... Other classroom 

education.

8 8 8 7 5 8 6 7 6 6 7 6 8 7 9 13 

Education ............... Preschool/daycare 16 15 15 14 12 14 13 12 11 11 12 11 13 12 14 20 

Food Sales ............. Convenience store 43 48 46 44 40 47 42 36 38 40 37 34 40 44 44 58 

Food Sales ............. Convenience store 

with gas.

35 38 37 35 32 38 34 29 31 32 30 27 32 36 36 46 

Food Sales ............. Grocery store/food 

market.

36 40 38 36 33 39 35 30 32 34 31 28 33 37 37 48 

Food Sales ............. Other food sales ... 11 12 12 11 10 12 11 9 10 10 9 9 10 11 11 15 

Food Service .......... Fast food ............... 84 88 89 80 74 90 75 67 72 73 68 63 75 83 83 109 

Food Service .......... Other food service 25 26 26 24 21 27 22 20 21 22 20 19 22 25 25 32 

Food Service .......... Restaurant/cafeteria.45 48 48 43 39 49 41 36 39 40 37 34 41 45 45 59 

Inpatient Health 

Care.

Hospital/inpatient 

health.

45 47 48 41 42 47 39 32 33 35 29 27 29 32 30 36 

Laboratory .............. Laboratory ............. 56 56 55 52 44 54 48 44 42 43 45 41 51 48 53 71 

Lodging .................. Dormitory/fraternity/sorority.13 14 14 14 9 14 13 13 12 13 14 12 17 16 19 26 

Lodging .................. Hotel ..................... 16 16 15 15 14 16 15 12 13 13 13 12 14 14 14 17 

Lodging .................. Motel or inn ........... 18 17 17 15 14 16 15 12 12 12 12 11 13 12 12 15 

Lodging .................. Nursing home/assisted living.26 27 26 24 21 26 23 21 20 20 21 19 24 23 25 34 

Lodging .................. Other lodging ........ 17 16 16 14 13 15 14 11 12 11 11 11 12 12 12 14 

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Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 61731 

TABLE 4—FY2025–FY2029 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING CATEGORY, BUILDING TYPE AND CLIMATE ZONE, COMMERCIAL BUILDINGS AND MULTI-FAMILY HIGH-RISE RESIDENTIAL

BUILDINGS—Continued 

[Source kBtu/yr-sqft] 

Building category Climate zone 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building type Fossil fuel-generated energy use intensity 

Mercantile .............. Enclosed mall ....... 18 18 18 17 13 17 15 15 14 15 17 15 20 19 22 32 

Mercantile .............. Strip shopping mall 19 19 18 18 13 18 16 16 15 15 18 16 21 20 23 33 

Office ...................... Administrative/profess. office.12 13 13 12 10 12 10 10 10 10 11 9 12 11 13 18 

Office ...................... Bank/other financial.18 18 18 17 14 18 15 15 14 14 15 13 17 16 18 25 

Office ...................... Government office 16 16 16 15 12 16 13 13 12 12 13 12 15 14 16 22 

Office ...................... Medical office 

(non-diagnostic).

11 11 11 10 8 11 9 9 8 8 9 8 10 9 11 15 

Office ...................... Mixed-use office ... 14 15 15 14 11 14 12 12 11 11 12 11 14 13 15 21 

Office ...................... Other office ........... 12 12 12 12 9 12 10 10 9 9 10 9 12 11 12 17 

Outpatient Health 

Care.

Clinic/other outpatient health.16 15 16 14 13 15 13 11 11 10 10 10 11 11 10 12 

Outpatient Health 

Care.

Medical office (diagnostic).11 10 10 9 9 10 8 7 7 7 7 7 7 7 7 8 

Public Assembly ..... Entertainment/culture.7 7 7 7 6 7 6 6 5 6 6 5 7 6 7 9 

Public Assembly ..... Library ................... 19 19 19 18 15 19 17 15 15 15 16 14 18 17 18 24 

Public Assembly ..... Other public assembly.9 9 9 8 7 9 8 7 7 7 7 6 8 8 8 11 

Public Assembly ..... Recreation ............ 8 8 8 8 6 8 7 6 6 6 7 6 8 7 8 11 

Public Assembly ..... Social/meeting ...... 9 9 8 8 7 8 7 7 7 7 7 6 8 7 8 11 

Public Order & 

Safety.

Fire station/police 

station.

21 21 20 19 16 20 18 16 16 16 17 15 19 18 19 26 

Public Order & 

Safety.

Other public order 

and safety.

19 19 18 17 15 18 16 15 14 14 15 14 17 16 18 24 

Religious Worship .. Religious worship 7 7 7 7 6 7 6 6 6 6 6 5 7 6 7 9 

Retail (except 

malls).

Other retail ............ 16 16 16 15 11 15 13 13 12 13 15 13 18 16 19 27 

Retail (except 

malls).

Retail store ........... 9 9 9 9 6 9 8 8 7 7 8 7 10 9 11 16 

Retail (except 

malls).

Vehicle dealership 

showroom.

16 16 16 15 11 15 13 13 13 13 15 13 18 16 19 27 

Service ................... Other service ........ 19 19 19 18 14 18 16 15 14 14 15 15 17 16 18 23 

Service ................... Post office/postal 

center.

13 13 13 12 10 13 12 10 10 10 11 10 12 12 13 17 

Service ................... Repair shop .......... 9 9 9 8 7 9 7 7 7 7 7 7 8 7 8 11 

Service ................... Vehicle service/repair shop.10 10 10 10 8 10 9 8 8 8 8 8 9 9 10 13 

Service ................... Vehicle storage/

maintenance.

4 5 4 4 3 4 4 4 3 3 4 3 4 4 4 6 

Warehouse ............. Distribution/shipping center.4 5 5 6 3 6 4 6 5 5 8 7 11 9 13 24 

Warehouse ............. Non-refrigerated 

warehouse.

2 2 3 3 1 3 2 3 3 3 4 3 5 4 6 12 

Warehouse ............. Refrigerated warehouse.22 22 23 20 18 22 18 17 17 18 16 15 18 20 20 27 

Residential ............. Multi-family highrise residential.11 10 9 9 5 9 6 9 8 9 10 9 11 10 12 16 

PART 435—ENERGY EFFICIENCY 

STANDARDS FOR THE DESIGN AND 

CONSTRUCTION OF NEW FEDERAL 

LOW-RISE RESIDENTIAL BUILDINGS 

■ 7. The authority citation for part 435 

continues to read as follows: 

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

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

seq. 

■ 8. In § 435.1, paragraph (b) is added to 

read as follows: 

§ 435.1 Purpose and scope. 

* * * * * 

(b) This part also establishes a 

maximum allowable fossil fuelgenerated energy consumption standard 

for new Federal buildings that are lowrise residential buildings and major 

renovations to Federal buildings that are 

low-rise residential buildings, for which 

design for construction began on or after 

October 14, 2015. 

■ 9. In § 435.2: 

■ a. Add in alphabetical order, the 

definitions of ‘‘Combined heat and 

power (CHP) system,’’ ‘‘Construction 

cost,’’ ‘‘District energy system,’’ ‘‘Fiscal 

year (FY),’’ ‘‘Major renovation,’’ ‘‘Power 

purchase agreement,’’ and ‘‘Renewable 

energy certificate’’; 

■ b. Revise the definitions of ‘‘New 

Federal building’’ and ‘‘Proposed 

building’’; and 

■ c. Remove the definitions of ‘‘Lifecycle cost’’ and ‘‘Life-cycle costeffective’’. 

The additions and revisions read as 

follows: 

§ 435.2 Definitions. 

* * * * * 

Combined heat and power (CHP) 

system means an integrated system, 

located at or near a building or facility, 

that is used to generate both heat and 

electricity for use in the building or 

facility. 

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61732 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

Construction cost means all costs 

associated with design and construction 

of a building. It includes the cost of 

design, permitting, construction 

(materials and labor), and building 

commissioning. It does not include legal 

or administrative fees, or the cost of 

acquiring the land. 

* * * * * 

District energy system means a central 

energy conversion plant and 

transmission and distribution system 

that provides thermal energy to a group 

of buildings (heating via hot water or 

steam, and/or cooling via chilled water). 

This definition only includes thermal 

energy systems; central energy supply 

systems that only provide electricity are 

excluded from this definition. 

* * * * * 

Fiscal Year (FY) begins on October 1 

of the year prior to the specified 

calendar year and ends on September 30 

of the specified calendar year 

* * * * * 

Major renovation means changes to a 

building that provide significant 

opportunities for compliance with 

applicable requirements in this part. For 

subpart B —reduction in fossil fuelrelated energy consumption, for 

example, replacement of the HVAC 

system, lighting system, building 

envelope, or other components of the 

building that have a major impact on 

energy usage would constitute a major 

renovation. 

New Federal building means any new 

building (including a complete 

replacement of an existing building 

from the foundation up) to be 

constructed by, or for the use of, any 

Federal agency. Such term shall include 

buildings built for the purpose of being 

leased by a Federal agency, and 

privatized military housing. 

Power purchase agreement means an 

agreement with an electricity producer 

for all or a specified portion of the 

electricity produced from a particular 

power source, in this case a renewable 

energy source, for a specified period of 

time. 

Proposed building means the design 

for construction of a new Federal lowrise residential building, or major 

renovation to a Federal low-rise 

residential building, proposed for 

construction. 

Renewable energy certificate means 

the technology and environmental (nonenergy) attributes that represent proof 

that 1 megawatt-hour (MWh) of 

electricity was generated from a 

renewable energy resource, and can be 

sold separately from the underlying 

generic electricity with which it is 

associated. 

§ 435.3 [Amended] 

■ 10. Amend § 435.3 by adding to the 

end of paragraph (b)(2) ‘‘, 435.201, 

Appendix A to Subpart B’’. 

■ 11. Revise § 435.4 to read as follows: 

§ 435.4 Life-cycle cost-effective. 

Except as specified in subparts A, B 

or C of this part, Federal agencies shall 

determine life-cycle cost-effectiveness 

by using the procedures set out in 

subpart A of part 436. A Federal agency 

may choose to use any of four methods, 

including life-cycle cost, net savings, 

savings-to-investment ratio, and 

adjusted internal rate of return using the 

discount rate published in the annual 

supplement to the Life Cycle Costing 

Manual for the Federal Energy 

Management Program (NIST 85–3273). 

■ 12. Subpart B is added to part 435 to 

read as follows: 

Subpart B—Reduction in Fossil FuelGenerated Energy Consumption 

Sec. 

435.200 Fossil fuel-generated energy 

consumption requirement. 

435.201 Fossil fuel-generated energy 

consumption determination. 

435.202 Petition for downward adjustment. 

Appendix A to Subpart B of Part 435— 

Maximum Allowable Fossil Fuel-Generated 

Energy Consumption 

Subpart B—Reduction in Fossil FuelGenerated Energy Consumption 

§ 435.200 Fossil fuel-generated energy 

consumption requirement. 

(a) New Federal buildings. New 

Federal buildings that are low-rise 

residential buildings, for which design 

for construction began on or after 

October 14, 2015, must be designed to 

meet the requirements of paragraph (c) 

of this section if the cost of the building 

is at least $2,500,000 (in 2007 dollars, 

adjusted for inflation). 

(b) Major renovations. (1) Major 

renovations to Federal buildings that are 

low-rise residential buildings, for which 

design for construction began on or after 

October 14, 2015, must be designed to 

meet the requirements of paragraph (c) 

of this section if the cost of the major 

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

2007 dollars, adjusted for inflation). 

(2) This subpart applies only to the 

portions of the proposed building or 

proposed building systems that are 

being renovated and to the extent that 

the scope of the renovation permits 

compliance with the applicable 

requirements in this subpart. Unaltered 

portions of the proposed building or 

proposed building systems are not 

required to comply with this subpart. 

(3) For leased buildings, this subpart 

applies to major renovations only if the 

proposed building was originally built 

for the use of any Federal agency, 

including being leased by a Federal 

agency. 

(c) Federal buildings that are of the 

type included in Appendix A of this 

subpart—(1) Design for construction 

began during fiscal year 2014 through 

fiscal year 2029. The fossil fuelgenerated energy consumption of the 

proposed building, based on the 

building design and calculated 

according to § 435.201(a), must not 

exceed the value identified in Tables 1– 

4 of Appendix A of this subpart for the 

associated building type, climate zone, 

and fiscal year in which design for 

construction began. 

(2) Design for construction began 

during or after fiscal year 2030. The 

fossil fuel-generated energy 

consumption of the proposed building, 

based on building design and calculated 

according to § 435.201(a), must be zero. 

§ 435.201 Fossil fuel-generated energy 

consumption determination. 

(a) The fossil fuel-generated energy 

consumption of a proposed design is 

calculated as follows: 

Equation 1: Fossil Fuel-Generated 

Energy Consumption = ((3.412 kBtu/ 

kwh × Fossil Fuel-Generation Factor × 

(Proposed Building Site Electricity 

Consumption ¥ Renewable Energy 

and CHP Electricity Deduction)/

Electricity Source Energy Factor) + 

(Direct Fossil Fuel Consumption of 

Proposed Building × Other Fuels 

Source Energy Multiplier))/Floor Area 

Whereas: 

(1) Fossil Fuel-Generation Factor is 

equal to (AEPcoal + AEPpl + AEPpc + 

AEPng + AEPog)/Total AEP 

Where 

AEP = annual electrical production 

pl = petroleum liquids 

pc = petroleum coke 

ng = natural gas 

og = other gas 

All values are taken from Table 3.2.A 

of the EIA Electric Power Annual 

Report, which is updated on a periodic 

basis. DOE will on an annual basis 

calculate the Fossil Fuel Generation 

Factor and publish the result at the 

following web address: http://energy.

gov/eere/femp/federal-energymanagement-program 

(2) Proposed Building Site Electricity 

Consumption equals the estimated site 

electricity consumption of the proposed 

building calculated in accordance with 

the Simulated Performance Alternative 

in Section 405 of the IECC 2009 

(incorporated by reference; see § 435.3), 

measured in kilowatt hours per year 

(kWh/yr). 

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Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 61733 

(3) Renewable Energy and CHP 

Electricity Deduction equals the total 

contribution specified in paragraph (b) 

of this section, measured in kilowatt 

hours per year (kWh/yr). 

(4) Electricity Source Energy Factor 

For electricity purchased from the grid, 

the Electricity Source Factor is equal to 

0.316. For on-site electrical generation, 

it is the estimated efficiency of the 

generating equipment and any estimated 

distribution losses that may occur. 

(5) Direct Fossil Fuel Consumption of 

Proposed Building equals the total site 

fossil fuel consumption of the proposed 

building calculated in accordance with 

the Simulated Performance Alternative 

in Section 405 of the IECC 2009 

(incorporated by reference; see § 435.3), 

excluding fossil fuel consumption for 

electricity generation, and measured in 

thousands of British thermal units per 

year per (kBtu/yr). This includes any 

fossil fuel consumption attributable to 

non-electric power (e.g., heat or steam) 

used in a proposed building that is 

supplied by a district energy system or 

CHP system. 

(6) Other Fuels Source Energy 

Multiplier For purposes of Equation 1, 

the multipliers are as follows: 

Natural gas 1.046 

Fuel oil 1.00 

Propane 1.00 

District Steam (non-CHP) 1.35 

District steam (CHP) 2.30 

District hot water 1.28 

Chilled water 1.05 

Coal 1.00 

(7) Floor Area is the floor area of the 

structure that is enclosed by exterior 

walls, including finished or unfinished 

basements, finished or heated space in 

attics, and garages if they have an 

uninsulated wall in common with the 

house. Not included are crawl spaces, 

and sheds and other buildings that are 

not attached to the house. 

(b) Renewable energy and CHP 

electricity deductions—(1) Renewable 

electricity. The following renewable 

electricity generation qualifies as a 

deduction under paragraph (a) of this 

section to the extent that the renewable 

electricity generation represents new 

electric generating capacity or a new 

renewable energy obligation on the part 

of the agency, and not a reassignment of 

existing capacity or obligations: 

(i) On-site renewable electricity 

generation is the amount of electricity 

measured in kilowatt hours per year 

(kWh/yr) to be consumed by the 

building that is contributed by 

renewable electricity generated at the 

Federal site or facility on which the 

building will be located. The 

environmental attributes of the on-site 

renewable electricity generation must 

not be transferred. 

(ii) Off-site renewable electricity 

generation is the amount of renewable 

electricity measured in kilowatt hours 

per year (kWh/yr) generated at a site or 

facility, either Federal or non-federal, 

other than the Federal site or facility on 

which the building will be located, and 

may include renewable energy 

produced under a Power Purchase 

Agreement and represented by 

Renewable Energy Certificates. 

(2) Limitation on the use of renewable 

electricity generation for new Federal 

buildings and major renovations. The 

environmental attributes of the 

renewable energy generation must not 

be transferred. The agency must ensure 

that the environmental attributes of 

onsite renewable energy generation are 

dedicated to meeting the fossil fuelgenerated energy consumption 

reduction requirements of the proposed 

building. 

(3) CHP deduction. Electricity 

associated with non-electric power 

provided to a proposed building by a 

district energy system that is a CHP 

system or an on-site CHP system 

qualifies as a deduction under 

paragraph (a) and is equal to the total 

heat delivered to the proposed building 

from the direct energy system divided 

by total heat produced by the CHP 

system, times the total electricity 

produced by the CHP system. 

§ 435.202 Petition for downward 

adjustment. 

(a) New Federal buildings. (1) Upon 

petition by a Federal agency, excluding 

the General Services Administration 

(GSA) but including GSA-tenant 

agencies with significant control over 

building design, the Director of the 

Federal Energy Management Program 

may adjust the applicable maximum 

allowable fossil fuel-generated energy 

consumption standard with respect to a 

specific building, upon written 

certification from the head of the agency 

designing the building, or the head of a 

GSA-tenant agency, that the requested 

adjustment is the largest feasible 

reduction in fossil fuel-generated 

consumption that can practicably be 

achieved in light of the specified 

functional needs for that building, as 

demonstrated by: 

(i) A statement sealed by the design 

engineer that the proposed building was 

designed in accordance with the 

applicable energy efficiency 

requirement in subpart A of this Part, 

and that each energy consuming 

product included in the proposed 

building that is of a product category 

covered by the ENERGY STAR program 

or the Federal Energy Management 

Program for designated products is an 

ENERGY STAR product or a product 

meeting the FEMP designation criteria, 

as applicable; 

(ii) A description of the technologies 

and practices that were evaluated and 

rejected, including a justification of why 

they were not included in the design for 

construction; and 

(iii) Any other information the agency 

determines would help explain its 

request; 

(2) The head of the agency designing 

the building, or the head of a GSAtenant agency, must also include the 

following information in the petition: 

(i) A general description of the 

building, including but not limited to 

location, use type, floor area, stories, 

and functional needs; 

(ii) The maximum allowable fossil 

fuel-generated energy consumption for 

the building from Tables 1–4 of 

Appendix A of this subpart; 

(iii) The estimated fossil fuelgenerated energy consumption of the 

proposed building; 

(iv) A description of the proposed 

building’s energy-related features, 

including but not limited to: 

(A) Building envelope, including, but 

not limited to, construction materials, 

insulation levels, and the type, area, 

heat loss and solar heat gain and visible 

light transmission coefficients of 

windows and other glazing; 

(B) HVAC system type and 

configuration; 

(C) HVAC equipment sizes and 

efficiencies; 

(D) Ventilation systems (including 

outdoor air volume, controls technique, 

heat recovery systems, and economizers, 

if applicable); 

(E) Service water heating system 

configuration and equipment (including 

solar hot water, wastewater heat 

recovery, and controls for circulating 

hot water systems, if applicable); 

(F) Lighting technology, interior 

lighting power, and lighting control 

techniques; 

(G) Estimated process and plug loads; 

and 

(H) Any other energy-related 

equipment; and 

(3) The Director of the Federal Energy 

Management Program may concur in 

whole or in part with a petition. Upon 

concurring in part, the Director of the 

Federal Energy Management Program 

will establish an applicable maximum 

allowable fossil fuel-generated energy 

consumption standard with respect to a 

specific building other than the value 

put forth in the petition. 

(4) Petitions for downward 

adjustment should be submitted to ffpetition@ee.doe.gov, or to: 

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61734 Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 

U.S. Department of Energy, Federal 

Energy Management Program, 

Director, Fossil Fuel Reductions in 

New Federal Buildings, EE–2L, 1000 

Independence Ave. SW., Washington, 

DC 20585–0121. 

(5) The Director will notify the 

requesting agency in writing whether 

the petition for downward adjustment to 

the numeric reduction requirement is 

approved, in whole or in part, or 

rejected, within 90 days of submittal. If 

the Director rejects -the petition or 

establishes a value other than that 

presented in the petition, the Director 

will forward its reasons for rejection to 

the petitioning agency. 

(b) Major renovations to Federal 

buildings—(1) Major renovation of the 

whole building. Upon petition by a 

Federal agency, excluding the General 

Services Administration (GSA) but 

including GSA-tenant agencies with 

significant control over renovation 

design, the Director of the Federal 

Energy Management Program will adjust 

the applicable maximum allowable 

fossil fuel-generated energy 

consumption standard with respect to a 

specific major renovation of a whole 

building, upon written certification 

from the head of the agency designing 

the building, or the head of a GSAtenant agency, that the requested 

adjustment is the largest feasible 

reduction in fossil fuel-generated 

consumption that can practicably be 

achieved in light of the specified 

functional needs for that building, as 

demonstrated by a statement stamped 

by the design engineer that the proposed 

building was designed consistent with 

the energy efficiency requirement in 

subpart A of this Part that corresponds 

to the date of the proposed building. 

(2) Major renovation of a building 

system or component. Upon petition by 

a Federal agency, excluding the General 

Services Administration (GSA) but 

including GSA-tenant agencies with 

significant control over renovation 

design, the Director of the Federal 

Energy Management Program will adjust 

the applicable maximum allowable 

fossil fuel-generated energy 

consumption standard with respect to a 

specific major renovation limited to a 

building system or component, upon 

written certification from the head of 

the agency designing the building, or 

the head of a GSA-tenant agency, that 

the requested adjustment is the largest 

feasible reduction in fossil fuelgenerated consumption that can 

practicably be achieved in light of the 

specified functional needs for that 

building, as demonstrated by a 

statement stamped by the design 

engineer that the proposed building 

incorporates commercially available 

systems and/or components that 

provide a level of energy efficiency that 

is life-cycle cost effective. 

(3) Petitions for downward 

adjustment should be submitted to ffpetition@ee.doe.gov, or to: 

U.S. Department of Energy, Federal 

Energy Management Program, 

Director, Fossil Fuel Reductions in 

New Federal Buildings, EE–2L, 1000 

Independence Ave. SW., Washington, 

DC 20585–0121. 

(4) The downward adjustment for a 

major renovation will be deemed 

approved upon submittal of the 

certification required in paragraphs 

(b)(1) or (2) of this section, as 

applicable. 

Appendix A to Subpart B of Part 435— 

Maximum Allowable Fossil FuelGenerated Energy Consumption 

(a) For purposes of the tables in this 

Appendix, the climate zones for each county 

in the United States are those listed in Figure 

301.1 of IECC 2009 (incorporated by 

reference; see § 435.3). 

(b) For purpose of Appendix A, the 

following definitions apply: 

Manufactured Home means a dwelling unit 

built to the Federal Manufactured Home 

Construction and Safety Standards in 24 CFR 

part 3280, that is built on a permanent 

chassis and moved to a site. It may be placed 

on a permanent or temporary foundation and 

may contain one or more rooms. 

Multi-Family in 2–4 Unit Buildings means 

a category of structures that is divided into 

living quarters for two, three, or four families 

or households in which one household lives 

above or beside another. This category also 

includes houses originally intended for 

occupancy by one family (or for some other 

use) that have since been converted to 

separate dwellings for two to four families. 

Multi-Family in 5 or More Unit Buildings 

means a category of structures that contain 

living quarters for five or more households or 

families and in which one household lives 

above or beside another. 

Single-Family Attached means a building 

with two or more connected dwelling units, 

generally with a shared wall, each providing 

living space for one household or family. 

Attached houses are considered single-family 

houses as long as they are not divided into 

more than one dwelling unit and they have 

independent outside entrances. A singlefamily house is contained within walls 

extending from the basement (or the ground 

floor, if there is no basement) to the roof. 

Townhouses, row houses, and duplexes are 

considered single-family attached dwelling 

units, as long as there is no dwelling unit 

above or below another. This includes 

modular homes but does not include 

manufactured homes. 

Single-Family Detached means a separate, 

unconnected dwelling unit, not sharing a 

wall with any other building or dwelling 

unit, which provides living space for one 

household or family. A single-family house is 

contained within walls extending from the 

basement (or the ground floor, if there is no 

basement) to the roof. This includes modular 

homes but does not include manufactured 

homes. 

TABLE 1—FY2013–FY2014 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING

CATEGORY, BUILDING TYPE AND CLIMATE ZONE, RESIDENTIAL BUILDINGS

[Source kBtu/yr-sqft] 

Building category Climate zone 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building activity/

type 

Fossil fuel-generated energy use intensity 

Residential ............. Mobile/manufactured home.56 54 46 48 28 47 33 48 43 49 53 45 61 54 64 84 

Residential ............. Single-family detached.42 40 34 36 21 35 24 36 32 36 39 33 45 40 47 62 

Residential ............. Single-family attached.48 46 39 41 24 40 28 41 37 41 45 38 52 46 55 72 

Residential ............. Multi-family (in 2–4 

unit building).

70 68 57 60 35 59 41 60 54 61 66 56 76 68 80 105 

Residential ............. Multi-family (in 5+ 

unit building).

48 46 39 41 24 40 28 41 37 41 45 38 52 46 55 72 

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Federal Register / Vol. 79, No. 198 / Tuesday, October 14, 2014 / Proposed Rules 61735 

TABLE 2—FY2014–FY2019 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING

CATEGORY, BUILDING TYPE AND CLIMATE ZONE, RESIDENTIAL BUILDINGS

[Source kBtu/yr-sqft] 

Building category Climate zone: 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building activity/

type 

Fossil fuel-generated energy use intensity 

Residential ............. Mobile/manufactured home.44 42 35 37 22 36 25 37 34 38 41 35 47 42 50 65 

Residential ............. Single-family detached.32 31 26 28 16 27 19 28 25 28 30 26 35 31 37 49 

Residential ............. Single-family attached.37 36 30 32 18 31 22 32 29 32 35 30 40 36 42 56 

Residential ............. Multi-family (in 2–4 

unit building).

55 53 44 47 27 46 32 47 42 47 51 44 59 53 62 82 

Residential ............. Multi-family (in 5+ 

unit building).

37 36 30 32 18 31 22 32 29 32 35 30 40 36 42 56 

TABLE 3—FY2020–FY2024 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING

CATEGORY, BUILDING TYPE AND CLIMATE ZONE, RESIDENTIAL BUILDINGS

[Source kBtu/yr-sqft] 

Building category Climate zone 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building activity/

type 

Fossil fuel-generated energy use intensity 

Residential ............. Mobile/manufactured home.25 24 20 21 12 21 15 21 19 22 23 20 27 24 28 37 

Residential ............. Single-family detached.18 18 15 16 9 15 11 16 14 16 17 15 20 18 21 28 

Residential ............. Single-family attached.21 21 17 18 11 18 12 18 16 18 20 17 23 21 24 32 

Residential ............. Multi-family (in 2–4 

unit building).

31 30 25 27 15 26 18 27 24 27 29 25 34 30 36 47 

Residential ............. Multi-family (in 5+ 

unit building).

21 20 17 18 11 18 12 18 16 18 20 17 23 21 24 32 

TABLE 4—FY2024–FY2029 MAXIMUM ALLOWABLE FOSSIL FUEL-GENERATED ENERGY CONSUMPTION BY BUILDING

CATEGORY, BUILDING TYPE AND CLIMATE ZONE, RESIDENTIAL BUILDINGS

[Source kBtu/yr-sqft] 

Building category Climate zone 1 2A 2B 3A 3B 

coast 

3B 

other 3C 4A 4B 4C 5A 5B 6A 6B 7 8 

Building activity/

type 

Fossil fuel-generated energy use intensity 

Residential ............. Mobile/manufactured home.12 12 10 11 6 10 7 11 10 11 12 10 13 12 14 19 

Residential ............. Single-family detached.9 9 8 8 5 8 5 8 7 8 9 7 10 9 11 14 

Residential ............. Single-family attached.11 10 9 9 5 9 6 9 8 9 10 9 12 10 12 16 

Residential ............. Multi-family (in 2–4 

unit building).

16 15 13 13 8 13 9 13 12 14 15 13 17 15 18 23 

Residential ............. Multi-family (in 5+ 

unit building).

11 10 9 9 5 9 6 9 8 9 10 9 11 10 12 16 

[FR Doc. 2014–24151 Filed 10–10–14; 8:45 am] 

BILLING CODE 6450–01–P 

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