[Federal Register Volume 75, Number 199 (Friday, October 15, 2010)]
[Proposed Rules]
[Pages 63404-63419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25852]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

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

[[Page 63404]]



DEPARTMENT OF ENERGY

10 CFR Parts 433 and 435

[Docket No. EERE-2010-BT-STD-0031]
RIN 1904-AB96


Fossil Fuel-Generated Energy Consumption Reduction for New 
Federal Buildings and Major Renovations of Federal Buildings

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

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Energy (DOE) is publishing this notice 
of proposed rulemaking to implement provisions of the Energy 
Conservation and Production Act, as amended by the Energy Independence 
and Security Act of 2007 that require DOE to establish revised 
performance standards for the construction of all new Federal 
buildings, including commercial buildings, multi-family high-rise 
residential buildings and low-rise residential buildings. The 
provisions in this notice of proposed rulemaking specifically address 
the reduction of fossil fuel-generated energy consumption in new 
Federal buildings and Federal buildings undergoing major renovations. 
This proposed rule also addresses how agencies other than the General 
Services Administration (GSA) may petition DOE for a downward 
adjustment of the requirements if they believe meeting the full fossil 
fuel-generated energy consumption reduction level is technically 
impracticable in light of the specified functional needs for that 
building.

DATES: Public comments on this proposed rule will be accepted until 
December 14, 2010. DOE will hold a public meeting on Friday, November 
12, 2010, from 9 a.m. to 5 p.m., in Washington, DC. Interested persons 
who wish to speak at the public meeting should e-mail or phone Ms. 
Brenda Edwards by 4:30 p.m., Friday, October 29, 2010. DOE must receive 
a signed original and an electronic copy of statements to be given at 
the public meeting before 4 p.m., Friday, November 5, 2010. 
Additionally, DOE plans to conduct the public meeting via webinar. You 
can attend the public meeting via webinar, and registration 
information, participant instructions, and information about the 
capabilities available to webinar participants will be published on the 
Building Energy Codes Program's Web site http://www.energycodes.gov/events/doe/fossil_fuels.stm, and/or on the Federal Energy Management 
Program's Web site http://www1.eere.energy.gov/femp/regulations/notices_rules.html. Participants are responsible for ensuring their 
systems are compatible with the webinar software.
    DOE will accept comments, data, and information regarding this 
notice of proposed rulemaking (NOPR) before and after the public 
meeting, but no later than December 14, 2010. If you submit information 
that you believe to be exempt by law from public disclosure, you should 
submit one complete copy, as well as one copy from which the 
information claimed to be exempt by law from public disclosure has been 
deleted. DOE is responsible for the final determination with regard to 
disclosure or nondisclosure of the information and for treating it 
accordingly under the DOE Freedom of Information regulations at 10 CFR 
1004.11.

ADDRESSES: You may submit comments, identified by any of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include 
EERE-2010-BT-STD-0031 and/or RIN 1904-AB96 in the subject line of the 
message.
     Postal Mail: Ms. Brenda Edwards, U.S. Department of 
Energy, Building Technologies Program, Mailstop EE-2J, Fossil Fuel-
Generated Energy Consumption Reduction for New Federal Buildings and 
Major Renovations of Federal Buildings EERE-2010-BT-STD-0031 and/or RIN 
1904-AB96, 1000 Independence Avenue, SW., Washington, DC 20585-0121. 
Telephone: (202) 586-9138. Please submit one signed paper original. Due 
to the potential delays in DOE's receipt and processing of mail sent 
through the U.S. Postal Service, DOE encourages respondents to submit 
comments electronically to ensure timely receipt.
     Hand Delivery/Courier: Brenda Edwards, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, 
DC 20585-0121.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Information Number (RIN) for this 
rulemaking.
    Docket: For access to the docket to read background documents or 
comments received by DOE, go to the U.S. Department of Energy, 
Forrestal Building, Room 5E-080 (Resource Room of the Federal Energy 
Management Program), 1000 Independence Avenue, SW., Washington, DC, 
(202) 586-9127, between 9 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays. Please call Brenda Edwards at (202) 586-2945 
for additional information regarding visiting the Resource Room.

FOR FURTHER INFORMATION CONTACT: Margo Appel, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, 
DC 20585-0121, (202) 586-9495, e-mail: [email protected], or Ami 
Grace-Tardy, U.S. Department of Energy, Office of the General Counsel, 
Forrestal Building, GC-71, 1000 Independence Avenue, SW., Washington, 
DC 20585, (202) 586-5709, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background
II. Discussion of Proposed Rule
III. Reference Resources
IV. Regulatory Review
V. Approval by the Office of the Secretary

I. Background

    Section 305 of the Energy Conservation and Production Act (ECPA) 
established energy conservation requirements for Federal buildings (42 
U.S.C. 6834). Section 433(a) of the Energy Independence and Security 
Act of 2007 (Pub. L. 110-140) (EISA) amended section 305 of ECPA and 
directed that DOE establish regulations that revised Federal building 
energy efficiency performance standards to require that ``[f]or new 
Federal buildings and Federal buildings undergoing major renovations, 
with respect to which the

[[Page 63405]]

Administrator of General Services is required to transmit a prospectus 
to Congress under section 3307 of Title 40, in the case of public 
buildings (as defined in section 3301 of Title 40), or of at least 
$2,500,000 in costs adjusted annually for inflation for other 
buildings,'' the ``buildings shall be designed so that the fossil 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 the Energy Information 
Agency), by'' specific graduated percentages ranging from 55 percent to 
100 percent over a specified period of time beginning in fiscal year 
2010 and ending in fiscal year 2030 (42 U.S.C. 6834(a)(3)(D)(i)(I)).
    In addition, ECPA as amended by EISA permits DOE upon petition by 
an agency subject to the statutory requirements, to adjust the 
applicable numeric reduction requirement ``downward with respect to a 
specific building, if the head of the agency designing the building 
certifies in writing that meeting such requirement would be technically 
impracticable in light of the agency's specified functional needs for 
that building and'' DOE concurs with the agency's conclusion (42 U.S.C. 
6834(a)(3)(D)(i)(II)). ECPA as amended by EISA further directs that 
such an adjustment does not apply to GSA (42 U.S.C. 
6834(a)(3)(D)(i)(II)).
    Today's proposed rule on fossil fuel-generated energy consumption 
reduction proposes to amend certain portions of 10 CFR parts 433 and 
435, the regulations governing energy efficiency in Federal buildings. 
Additionally, DOE published a proposed rule on sustainable design 
standards for new Federal buildings on May 28, 2010 (75 FR 29933), 
which also proposes to amend certain portions of 10 CFR parts 433 and 
435. DOE has already addressed some elements of today's proposed rule 
in the sustainable design proposed rule. Specifically, overlapping 
elements of both proposed rules are the definitions of ``new Federal 
building'' and ``major renovation.'' The proposed regulatory text in 
today's document would amend the current regulatory text, without 
consideration of amendments that may result from the sustainable design 
rulemaking. If and when these two rulemakings are finalized, DOE will 
coordinate the final regulatory text between the two rulemakings.
    In addition, there are a number of statutory provisions, 
regulations, Executive Orders, and memorandums of understanding that 
govern the construction of new Federal buildings or major renovations 
to Federal buildings. These include, but are not limited to, Executive 
Order 13514 (74 FR 52117); sections 323, 433, 434, and 523 of the 
Energy Independence and Security Act 2007 (Pub. L. 110-140); Executive 
Order 13423 (72 FR 3919); the Guiding Principles for Federal Leadership 
in High Performance and Sustainable Buildings originally adopted in the 
Federal Leadership in High Performance and Sustainable Buildings MOU; 
section 109 of the Energy Policy Act of 2005 (Pub. L. 109-58); and 10 
CFR parts 433 and 435. If made final, the proposed rule would not 
supersede other applicable legal requirements for new Federal buildings 
or major renovations to Federal buildings.

II. Discussion of Proposed Rule

A. Overview

    The proposed rule would establish revised Federal building energy 
efficiency performance standards for achieving the reductions in fossil 
fuel-generated energy consumption as listed in ECPA as amended by EISA 
(42 U.S.C. 6834(a)(3)(D)(i)(I)). The proposed rule would also clarify 
which building types are covered by the standards and which building 
types are excluded. The proposed rule establishes a methodology for 
compliance, including calculation of the maximum allowable fossil fuel-
generated energy consumption based on building type, and how fossil 
fuel consumption resulting from electricity usage should be considered. 
Today's proposed rule would also establish procedures for agencies to 
petition DOE for downward adjustment of the applicable percentage 
reduction requirement.

B. Scope of Proposed Rule

    Section 305(a)(3) of ECPA as amended directs DOE to establish 
regulations that require fossil fuel-generated energy consumption 
reductions be applied to a subset of new Federal buildings and Federal 
buildings undergoing major renovation. (42 U.S.C. 6834(a)(3)(D)(i)(I)) 
A building is in the subset of new Federal buildings and Federal 
buildings undergoing major renovations if the building is:
     A public building as defined in 40 U.S.C. 3301,\1\ for 
which the Administrator of General Services is required to transmit a 
prospectus to Congress under U.S.C. Title 40, section 3307, or
---------------------------------------------------------------------------

    \1\ Under 40 U.S.C. 3301(5) ``public building'' is a building, 
whether for single or multitenant occupancy, and its grounds, 
approaches, and appurtenances, which is generally suitable for use 
as office or storage space or both by one or more Federal agencies 
or mixed-ownership Government corporations.
    ``Public building'' includes Federal office buildings, post 
offices, customhouses, courthouses, appraisers stores, border 
inspection facilities, warehouses, record centers, relocation 
facilities, telecommuting centers, similar Federal facilities, and 
any other buildings or construction projects the inclusion of which 
the President considers to be 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.
---------------------------------------------------------------------------

     A building and major renovation for which the construction 
project cost is at least $2,500,000 (in 2007 dollars, adjusted for 
inflation using U.S. Department of Labor Producer Price Indexes).
    DOE notes that the definition of ``Federal building'' was changed 
in statute, and DOE is addressing that definition and the definition of 
``new Federal building'' in a separate rulemaking. (42 U.S.C. 6832(6)) 
The statute now defines ``Federal building'' to mean any building to be 
constructed by, or for the use of, any Federal agency. In the separate 
rulemaking DOE is proposing that the term include buildings built for 
the purpose of being leased by a Federal agency, and privatized 
military housing.
    For the purpose of this rulemaking, DOE would consider public 
buildings to include buildings leased by a Federal agency. DOE 
recognizes, however, that a Federal agency may not have control over 
the design of a renovation of a leased building in which the agency is 
a tenant. For the purpose of this rulemaking, DOE considers major 
renovations to be limited to those renovations for which a Federal 
agency has significant control over the renovation design.
    Additionally, DOE would consider construction project costs to be 
those costs for which the agency currently has

[[Page 63406]]

funding. That is, the $2,500,000 threshold would not include renovation 
activities that potentially could occur in future fiscal years. 
Generally, construction project costs include design, permitting, 
construction (materials and labor), and commissioning costs. Land and 
legal costs would generally not be included. DOE requests comment on 
this definition of construction costs.
    DOE is proposing that Federal agencies would be required to comply 
with the final rule starting one year from the date of the final rule. 
As proposed, covered buildings for which design for construction begins 
on or after that effective date must meet the requirements established 
in this rule. The one year period would provide Federal agencies 
sufficient time to revise new building designs prior to the start of 
construction and would be consistent with that the lead time provided 
for the energy efficiency performance standards for the construction of 
all new Federal buildings.

C. Fiscal Year Percentage Reductions

    Section 305 of ECPA as amended by EISA mandates that buildings 
subject to this proposed rule be designed to reduce fossil fuel-
generated energy consumption by 55 percent beginning in fiscal year 
2010, 65 percent beginning in fiscal year 2015, 80 percent beginning in 
fiscal year 2020, 90 percent beginning in fiscal year 2025, and 100 
percent beginning in fiscal year 2030 (42 U.S.C. 6834(a)(3)(D)(i)(I)). 
DOE interprets this table in the statute to mean that any building 
whose design for construction begins in the fiscal year specified in 
the statute must be designed to achieve the fossil fuel-generated 
energy consumption reductions for that fiscal year. DOE welcomes 
comments on this interpretation. DOE interprets the fiscal years listed 
in the statute as spans of years for which the fossil fuel-generated 
energy consumption reductions would apply. For instance, the applicable 
percentage reduction for fiscal year 2010 would apply for the time span 
of fiscal year 2010 through fiscal year 2014. The applicable percentage 
reduction for fiscal year 2015 would apply for the time span of fiscal 
year 2015 through fiscal year 2019, and so on. DOE welcomes comments on 
this interpretation. Congress directed DOE to establish a rule 
addressing these fossil fuel-generated energy consumption reductions 
beginning in fiscal year 2010. DOE believes that the fossil fuel-
generated energy consumption reductions do not apply to Federal 
agencies until the regulations implementing the reductions are 
finalized. Today's proposed rule would apply to buildings for which 
design for construction begins at least one year after the final rule 
is issued.

D. Methodology To Determine Compliance

    Section 305 of ECPA as amended by EISA in part requires that the 
buildings that are the subject of today's proposed rule be designed so 
that the fossil 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 
the Energy Information Agency), by the percentages specified in Section 
305 of ECPA. (42 U.S.C. 6834(a)(3)(D)(i)(I)).
Determine Baseline Fossil Fuel-Generated Energy Consumption of Similar 
Building
    To determine whether a building meets the numeric fossil fuel 
reduction requirements specified by ECPA as amended by EISA, it is 
necessary to establish a baseline against which the reductions can be 
measured. For purposes of this proposed rulemaking, the statute 
establishes the baseline to be energy consumption data from Commercial 
Buildings Energy Consumption Survey (CBECS) for commercial buildings 
and Residential Buildings Energy Consumption Survey (RECS) for 
residential buildings. The CBECS and RECS data, which can be found at 
http://www.eia.doe.gov/emeu/cbecs/contents.html and at http://www.eia.doe.gov/emeu/recs/contents.html, are based on actual reported 
energy use over a large sample of buildings, normalized for size to 
thousands of British thermal units per square foot of floor space 
(kBtu/ft\2\).
    ECPA as amended by EISA requires that the buildings subject to this 
proposed rule be designed so that the fossil fuel-generated energy 
consumption of the buildings is reduced as compared with energy 
consumption data of a similar building in fiscal year 2003 as measured 
by CBECS or RECS (42 U.S.C. 6834(a)(3)(D)(i)(I)). The limited number of 
buildings surveyed by CBECS and RECS data does not always allow for a 
direct estimate of building energy use by climate zone and building 
type because there are only a few surveyed buildings that fit into some 
building type/climate zone groups. DOE believes, however, that a 
climate adjustment is necessary to provide reasonable baselines. 
Therefore, DOE is developing fossil fuel-generated energy requirements 
based on building type using CBECS or RECS data, and then applying a 
climate adjustment using the climate zones defined in the baseline 
energy efficiency standards at 10 CFR parts 433 and 435. This ensures 
that new Federal buildings will have to achieve reductions commensurate 
to a baseline appropriate for their respective climate zone, rather 
than to a national average that does not account for the impacts of the 
local climate on the energy use of a specific building. DOE solicits 
comment on the best technique for calculating the climate adjustment 
for the different building types.
    Note that ECPA as amended by EISA makes no distinction between 
fossil fuels such as natural gas, petroleum, and coal for purposes of 
the required fossil fuel-generated reductions addressed in today's 
rule. DOE recognizes that some fossil fuels have higher CO2 
emission factors than other fossil fuels, with coal being the highest 
and natural gas being the lowest. While the statute does not 
specifically direct DOE to consider variation in fossil fuels for 
purposes of this rulemaking, it does not prohibit DOE from doing so. 
With this in mind, DOE seeks public comment on whether all fossil fuels 
should be treated equally or whether each should be treated differently 
based on CO2 emission factors or some other factor.
Commercial Buildings Baseline--CBECS
    ECPA as amended by EISA requires that the fossil fuel-generated 
energy consumption of new Federal buildings and Federal buildings 
undergoing major renovations be compared to that of similar buildings 
in fiscal year 2003 as measured by CBECS or RECS data (42 U.S.C. 
6834(a)(3)(D)(i)(I)). The most recent available CBECS data is from a 
CBECS survey that was conducted in 2003.
    As discussed in the previous section, for purposes of establishing 
a baseline, DOE is developing a baseline based on building type, as 
defined by CBECS, with a climate adjustment as discussed previously. In 
the CBECS data, Column G of the following table, http://www.eia.doe.gov/emeu/cbecs/cbecs2003/detailed_tables_2003/2003set9/2003excel/c3.xls, lists the energy use per square foot of various 
groups of buildings. Note that in CBECS documents, the phrases building 
type and principal building activity are used interchangeably. For the 
sake of consistency, this document only uses the phrase building type.
    It should be noted that DOE has commissioned an analysis of the 
2003

[[Page 63407]]

CBECS data by building type and climate zone, and the results may be 
found in the report Methodology for Modeling Building Energy 
Performance Across the Commercial Sector by the National Renewable 
Energy Laboratory (NREL/TP-550-41956 2008) at http://apps1.eere.energy.gov/buildings/publications/pdfs/commercial_initiative/energy_use_intensity_targets.pdf. Examination of Table 4 
in the analysis DOE commissioned indicates the insufficient sample size 
of the CBECS data when both building type and climate zone are used to 
characterize building energy consumption. DOE's analysis produced often 
erratic and large variation in kBtu/ft\2\ by building type across the 
different climate zones and even across similar climate zones, 
indicating an insufficient sample size. For this reason, DOE is 
performing additional analysis and processing of the CBECS data with 
the goal of producing CBECS-based requirements by building type and 
climate zone, with the climate zones as defined in the baseline 
standard for 10 CFR part 433 (ANSI/ASHRAE/IESNA Standard 90.1-2004).
    One issue that arises with the use of this CBECS data is what to do 
with buildings that are split into multiple building types. It is quite 
common to find buildings that are a combination of warehouse and 
office, or warehouse and retail, or education and office, or laboratory 
and office, or some other combination of building types. Today's 
proposed rule will offer agencies the option to perform a building 
area-weighted average in order to determine the appropriate baseline 
level of fossil fuel-generated energy consumption. This process is 
described in 10 CFR 433.4(e) of the proposed rule.
    CBECS does not provide data on total fossil fuel-generated energy 
consumption in buildings. However, fossil fuel-generated energy 
consumption can be calculated from CBECS data by using the following 
equation:

Fossil fuel-generated energy consumption = Direct consumption of fossil 
fuels in the building plus the amount of electrical energy consumption 
that is generated from fossil fuels

    The 2003 CBECS lists direct consumption of fossil fuels in Table C1 
(http://www.eia.doe.gov/emeu/cbecs/cbecs2003/detailed_tables_2003/2003set9/2003excel/c1.xls) in columns labeled natural gas and fuel oil. 
The 2003 CBECS also identifies both the primary electrical energy, 
which is the total energy used to generate and transmit electricity to 
a building, and the energy content of the electricity consumed in the 
building. In CBECS energy consumption data, the primary electrical 
energy required to generate and transmit electricity to the point of 
use in a building is roughly three times the energy content of the 
electricity itself. The fraction of electricity generated from fossil 
fuels on a nationwide basis, referred to in this document as the fossil 
fuel generation ratio, is calculated from data in Table 2.1 of the 
Energy Information Administration (EIA) 2008 Electric Power Annual 
Report (http://www.eia.doe.gov/cneaf/electricity/epa/epat2p1.html) by 
summing the electric generation from coal, petroleum, natural gas, and 
other gases (derived from fossil fuels) and then dividing by the total 
electric generation. The fossil fuel generation ratio changes each 
year. Because ECPA as amended by EISA requires that the fossil fuel-
generated energy consumption in new buildings and those undergoing 
major renovations be compared to that of similar buildings in fiscal 
year 2003, the 2003 fossil fuel generation ratio must be used in order 
to calculate the baseline fossil fuel-generated energy consumption 
levels. For 2003, the fossil fuel generation ratio was 0.71, meaning 
that about 71% of all electricity in the United States is generated 
from fossil fuels.
    The approach taken in today's rulemaking to estimate the fossil 
fuel consumption associated with electricity consumption applies the 
national average contribution of fossil fuel to electricity generation. 
This approach would result in reductions in electricity consumption 
being treated the same across all geographic areas, and would not 
reflect regional variations in the contribution of fossil fuels to 
electricity generation. DOE is considering a regional approach to 
establishing the average fossil fuel fraction associated with building 
energy use. Prior to reaching a conclusion regarding the use of 
national or regional averages of fossil fuel inputs to the electric 
sector, DOE will evaluate both approaches and both average and marginal 
factors to determine their likely effects on agency decision-making and 
their ability to provide an accurate indication of the likely impacts 
of reductions in Federal agency electricity use on the use of fossil 
fuels in the electric sector. For example, the use of national average 
fossil fuel inputs to electric sector (rather than regional averages) 
may provide a better indication of the actual fossil fuel reductions 
likely to result from reductions in electricity use. Reductions in 
future electricity demand are likely to cause electric utilities to 
reduce the power supplied by those electricity generation units or 
sources that have the highest marginal costs. Over both the short and 
long run, the types of power generation that have the highest marginal 
costs are more likely to be fossil fuel units than those powered by 
nuclear, hydropower or other renewable energy sources. This is likely 
to be true in all regions of the country, regardless of their current 
or projected reliance on fossil fuels to generate electricity. Regional 
marginal fossil fuel reduction factors may also be appropriate. DOE 
invites comments on whether it should use a national or regional 
approach and average or marginal factors to estimate the fossil fuel 
consumption associated with electricity consumption, taking into 
consideration the potential implications on agency decision-making and 
actual fossil fuel use.
    The fossil fuel-generated energy consumption baseline column in 
Table 1 below is calculated directly from Table C1 in the 2003 CBECS. 
For each building type, the primary electrical energy is multiplied by 
the fossil fuel generation ratio then added to the direct fossil fuel 
consumption to get the total fossil fuel-generated consumption for that 
particular building type. The total fossil fuel consumption is then 
divided by the total floorspace for that building type to get the 
fossil fuel-generated energy consumption, as reported in Table 1 below. 
DOE is proposing building type definitions based largely on the CBECS 
glossary, with some minimal modifications for regulatory clarity. DOE 
requests comment on the building type definitions.
    The baselines provided in Table 1 do not currently reflect any 
adjustment for climate-related variations in building energy use. As 
discussed elsewhere in this proposed rule, DOE believes a climate 
adjustment is necessary to provide reasonable baselines, and DOE is 
seeking comment on this issue. In a final rule, DOE intends to update 
the values provided in Table 1 for climate.
Residential Buildings Baseline--RECS
    ECPA as amended by EISA requires that the fossil fuel-generated 
energy consumption of new Federal buildings and Federal buildings 
undergoing major renovations be compared to that of similar buildings 
in fiscal year 2003 as measured by CBECS or RECS data (42 U.S.C. 
6834(a)(3)(D)(i)(I)). Residential Energy Consumption Surveys (RECS) 
were conducted in 2001 and 2005; there is no data for 2003. Because the 
2005

[[Page 63408]]

RECS data is the most recently available data at the time of this 
proposed rulemaking, DOE expects to use the 2005 RECS data as a 
baseline.
    As with the CBECS data for commercial buildings, the limited number 
of buildings surveyed by RECS data does not always allow for a direct 
calculation of building energy use by climate zone and building type 
without additional analysis. DOE believes, however, that a climate 
adjustment is necessary to provide more reasonable baselines. DOE, 
therefore, proposes to establish fossil fuel-generated energy 
requirements based on building type using RECS data, and then apply a 
climate adjustment using the climate zones defined in the baseline 
energy efficiency standard at 10 CFR part 435 (the 2004 IECC). This 
ensures that new Federal buildings will have to achieve reductions 
commensurate to a baseline appropriate for their respective climate 
zone, rather than to a national average baseline that is either too 
cold or too warm for their particular needs. DOE solicits comment on 
the best technique for calculating the climate adjustment for the 
different building types.
    The 2005 RECS lists direct consumption of fossil fuels by 
households in Table US9 available at http://www.eia.doe.gov/emeu/recs/recs2005/hc2005_tables/c&e/excel/tableus9.xls in columns labeled 
natural gas, fuel oil, kerosene, and LPG. To calculate the total fossil 
fuel-generated energy consumption per household for each type of 
housing unit, the direct fossil fuel consumption per household and 
fossil fuel consumption for electricity consumption per household are 
summed, using the same factors to determine the fossil fuel fraction of 
residential electricity consumption that was used for commercial 
buildings. The total fossil fuel-generated energy consumption per 
household is then divided by the average floorspace for each type of 
housing unit. The average floor space for each type of housing unit can 
be found at http://www.eia.doe.gov/emeu/recs/recs2005/c&e/summary/excel/tableus1part1.xls. This calculation produces the fossil fuel use 
per square foot for each type of housing unit. The results can be found 
in the baseline column of Table 2 below. DOE is proposing building type 
definitions based largely on the RECS glossary, with some minimal 
modifications for regulatory clarity. For example, the 2005 RECS data 
includes values for ``manufactured homes'' although the RECS glossary 
does not define ``manufactured homes'' but does define ``mobile home.'' 
DOE requests comment on the building type definitions.
    The baselines provided in Table 2 do not currently reflect any 
adjustment for climate-related variations in building energy use. As 
discussed elsewhere in this proposed rule, DOE believes a climate 
adjustment is necessary to provide reasonable baselines, and DOE is 
seeking comment on this issue. In a final rule, DOE intends to update 
the values provided in Table 2 for climate.
    When using Table 2, it is important to note a shortcoming of RECS 
data for use in performance standards for Federal buildings. The 
shortcoming is that RECS data is collected on a per household basis and 
does not include energy use in common areas. As a result, the value for 
fossil fuel-generated energy consumption per square foot of floorspace 
shown in Table 2 only accounts for the non-common areas of these 
buildings. DOE considered accounting for common area energy use in the 
requirements, but RECS does not collect that data. To resolve this 
issue, DOE proposes applying the RECS-derived fossil fuel requirements 
to all applicable floorspace, including common and non-common areas. 
The benefits of this approach are that it is relatively simple and will 
not make it more difficult for building designers to show compliance. 
Because common areas account for a small fraction of floorspace, the 
effect on the requirement will be minimal. Also, common areas often 
have a lower energy intensity, so by using only non-common areas the 
maximum allowable fossil fuel-generated energy requirement will, if 
anything, be slightly higher. DOE welcomes comments on this approach or 
other specific approaches that could be used to develop the RECS-
derived requirements.
Calculation of Maximum Allowable Fossil Fuel-Generated Energy 
Consumption
    Once the baseline fossil fuel-generated energy consumption from the 
2003 CBECS and 2005 RECS has been determined, the consumption reduction 
requirements as specified in ECPA as amended by EISA should be 
calculated. Again, although the baselines provided in Tables 1 and 2 do 
not currently reflect any adjustment for climate-related variations in 
building energy use, DOE is developing fossil fuel-generated energy 
requirements based on building type using CBECS or RECS data, and then 
applying a climate adjustment. In a final rule, DOE intends to update 
the values provided in Tables 1 and 2 for climate.
    The requirements derived from CBECS, which apply to commercial 
buildings, are shown in Table 1. The consumption reduction requirements 
derived from RECS, which apply to both multi-family high-rise 
residential buildings and low-rise residential buildings, are found in 
Table 2. In this rulemaking DOE is proposing a revised definition of 
``Multi-family high-rise residential building,'' largely based on the 
definition at 10 CFR 434.201, although the proposed definition 
clarifies that multi-family high-rise residential buildings are 
designed to be four or more stories above grade.
    As discussed above, Tables 1 and 2 show data only at the national 
level, with national average values used for the fossil fuel generation 
ratio of 0.71. As discussed elsewhere in this rule, DOE is considering 
and invites comments on whether it should use a national or regional 
approach and average or marginal factors to estimate the fossil fuel 
consumption associated with electricity consumption.
    For purposes of simplification, values in these tables have been 
truncated to the nearest kBtu/ft\2\. In today's notice, the fossil 
fuel-generated energy consumption percentage reductions are presented 
as maximum allowable fossil fuel-generated energy consumption levels. 
Because the figures are premised on the proposed baseline values, the 
percentage reductions equate to the absolute values which are presented 
as the maximum allowable values. For ease of agency interpretation, the 
maximum allowable approach was used in today's notice.

[[Page 63409]]



  Table 1--2003 CBECS Fossil Fuel-Generated Energy Consumption Baseline and Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Type
                                                            and Fiscal Year (FY), kBtu/ft\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           FY 2012-2014    FY 2015-2019    FY 2020-2024    FY 2025-2029     FY 2030 and
                                                                         ----------------------------------------------------------------     beyond
                      Building type                       Baseline (kBtu/                                                                ---------------
                                                              ft\2\)       55% reduction   65% reduction   80% reduction   90% reduction  100% reduction
                                                                           (kBtu/ft\2\)    (kBtu/ft\2\)    (kBtu/ft\2\)    (kBtu/ft\2\)    (kBtu/ft\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Education...............................................             126              57              44              25              13               0
Food Sales..............................................             387             174             135              77              39               0
Food Service............................................             404             182             141              81              40               0
Health Care (Inpatient).................................             313             141             109              63              31               0
Health Care (Outpatient)................................             148              67              52              30              15               0
Lodging.................................................             148              67              52              30              15               0
Retail (Other Than Mall)................................             126              57              44              25              13               0
Office..................................................             160              72              56              32              16               0
Public Assembly.........................................             125              56              44              25              12               0
Public Order and Safety.................................             146              66              51              29              15               0
Religious Worship.......................................              62              28              22              12               6               0
Service.................................................             113              51              40              23              11               0
Warehouse and Storage...................................              66              30              23              13               7               0
--------------------------------------------------------------------------------------------------------------------------------------------------------


Table 2--2005 RECS Fossil Fuel-Generated Energy Consumption Baseline and Maximum Allowable Fossil Fuel-Generated Energy Consumption by Type of High-Rise
                                                          or Low-Rise Housing Unit, kBtu/ft\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           FY 2012-2014    FY 2015-2019    FY 2020-2024    FY 2025-2029     FY 2030 and
                                                                         ----------------------------------------------------------------     beyond
                      Building type                       Baseline (kBtu/                                                                ---------------
                                                              ft\2\)       55% reduction   65% reduction   80% reduction   90% reduction  100% reduction
                                                                           (kBtu/ft\2\)    (kBtu/ft\2\)    (kBtu/ft\2\)    (kBtu/ft\2\)    (kBtu/ft\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Single-Family Detached..................................              59              27              21              12               6               0
Single-Family Attached..................................              66              30              23              13               7               0
Multi-Family in 2-4 Unit Buildings......................             105              47              37              21              11               0
Multi-Family in 5 or More Unit Buildings................              94              42              33              19               9               0
Manufactured Homes......................................             115              52              40              23              12               0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    DOE recognizes that the required reductions identified in the above 
tables for the years preceding FY 2030 may change based on how climate 
and fossil fuels are considered and characterized. However, the FY 2030 
requirement for buildings to be designed such that the fossil fuel-
generated energy consumption is zero would remain unchanged.
    Although ECPA as amended by EISA requires that new Federal 
buildings and Federal buildings undergoing major renovations be 
designed so that fossil fuel-generated energy consumption of the 
buildings is reduced as compared with such energy consumption by a 
similar building in fiscal year 2003 (as measured by CBECS and RECS), 
there are some building types for which no amount of processing of 
CBECS and RECS data will yield an appropriate baseline for comparison. 
Examples might include industrialized or research facilities. For 
purpose of determining the Maximum Allowable Fossil Fuel Energy 
Consumption for these buildings not addressed by CBECS or RECS, DOE 
proposes to use the ASHRAE's Performance Rating Method to determine the 
baseline energy consumption for a new Federal commercial or multi-
family high-rise residential building, and the IECC's Simulated 
Performance Alternative to determine the baseline energy consumption 
for a new Federal low-rise residential building. DOE welcomes input on 
this approach.
Calculation of Proposed Building Fossil Fuel-Generated Energy 
Consumption
    To determine compliance, DOE is proposing that the fossil fuel-
generated energy consumption of the proposed new Federal building or 
Federal building undergoing major renovation should be estimated using 
the Performance Rating Method found in Appendix G of ANSI/ASHRAE/IESNA 
Standard 90.1-2004 for commercial and multi-family high-rise 
residential buildings, and the ICC International Energy Conservation 
Code 2004 Supplement for low-rise residential buildings. These are the 
same methods already prescribed at 10 CFR parts 433 and 435, 
respectively. Because of the complexity involved in estimating fossil 
fuel-generated energy consumption, this compliance requirement 
effectively requires the use of a whole building simulation tool. Whole 
building simulations are already performed today for most medium- and 
large-sized buildings to accurately estimate loads for purposes of 
sizing HVAC equipment for evaluating buildings under voluntary industry 
building codes. The outputs from these tools typically include site 
energy usage for both electricity and fossil fuel.
    To compare the estimated fossil fuel-generated energy consumption 
from the whole-building simulation tool to the maximum allowable fossil 
fuel-generated energy consumption under the statute, the designer 
should first calculate the primary electrical energy by multiplying the 
site electrical energy (from the whole building simulation), including 
receptacle and process loads, by the electricity source energy factor. 
The designer then calculates the fossil fuel-generated electrical 
consumption by multiplying the primary electrical energy by the fossil 
fuel-generation ratio. Finally, the designer must then sum up the 
fossil fuel-generated electrical consumption and any non-

[[Page 63410]]

electrical fossil fuels directly used in the proposed building (such as 
gas furnaces, gas cooking stoves, gas water heaters, etc.). The sum 
should be less than or equal to the required fossil fuel-generated 
energy consumption value for the appropriate building type.
    The electricity source energy factor is the ratio of primary 
electrical energy consumed to generate and deliver energy to a site to 
the electrical energy consumed on site. DOE is proposing that the 
electricity source energy factor would be calculated by dividing the 
average utility delivery ratio in Table 6.2.4 of the DOE Building 
Energy Data Book (http://buildingsdatabook.eren.doe.gov/docs/xls_pdf/6.2.4.xls) by 3412 to convert the value from Btu/kWh to kWh/kWh. The 
fossil fuel generation ratio would be calculated using the EIA's latest 
Electric Power Annual report by summing the electric generation from 
coal, petroleum, natural gas, and other gases (derived from fossil 
fuels) and then dividing by the total electric generation.
    DOE notes that the simulation analysis requirement may be 
burdensome for designers of some buildings, particularly small 
buildings. DOE also acknowledges that the Advanced Energy Design Guides 
(AEDGs) have been completed for a few building types, including the 
most significant commercial building types and sizes, but the AEDGS are 
not designed to achieve the reduction levels necessary under this rule. 
DOE welcomes comments on alternatives to a whole building simulation to 
demonstrate compliance of these buildings with the requirements of this 
proposed rulemaking. DOE also welcomes comments on the calculations 
methods discussed in this section.
Plug and Process Energy Consumption
    EPACT 2005 as amended by EISA requires that building be designed so 
that the fossil fuel-generated energy consumption of the buildings is 
reduced as compared with such energy consumption by a similar building 
as measured by CBECS and RECS. All building energy consumption, 
including plug and process energy consumption, is included in baseline 
CBECS and RECS data, and thus is also factored into the maximum 
allowable fossil fuel-generated energy consumption. Therefore, it is 
necessary that plug and process loads also be included in the fossil 
fuel-generated energy consumption of the new Federal building or 
Federal building undergoing major renovations. This is consistent with 
Table G3.1.12 in Appendix G, Performance Rating Method, ASHRAE Standard 
90.1-2004. DOE acknowledges the difficulty of estimating plug and 
process loads and that their inclusion may make it more difficult to 
achieve the mandated fossil fuel-generated energy consumption 
reductions. DOE welcomes comments on how the proposed rule can be 
designed such that the assumptions used in the whole building 
simulations accurately reflect, to the best degree possible, the final 
building design and the operation of the building, including plug and 
process loads.
Purchase of Offsite Renewable Energy
    In order to meet the maximum allowable fossil fuel-generated energy 
consumption requirements mandated by ECPA as amended by EISA, fossil 
fuel-generated energy consumption could be offset with use of energy 
created from other sources, including renewable energy sources. DOE 
also recognizes there may be physical limitations to the amount of on-
site renewable electricity that can be produced, and it may be more 
affordable in some cases for an agency to purchase electricity from 
centralized renewable energy-generation facilities. As an example, 
ASHRAE Standard 189.1-2009, ``The Standard for High-Performance Green 
Buildings,'' has an on-site renewable energy requirement, but allows 
the use of Renewable Energy Certificates as an alternative to meet the 
requirement.
    DOE is concerned however, that purchase of renewable energy-
generated electricity via Renewable Energy Certificates or direct Power 
Purchase Agreements may simply reduce the amount of renewable energy 
available for purchase by other entities within the U.S. and may not 
necessarily lead to an overall decrease in domestic fossil fuel-
generated energy consumption. In addition, unlike Power Purchase 
Agreements, the purchase of Renewable Energy Certificates does not 
involve a long-term binding agreement and can readily be cancelled. It 
should also be noted that the use of Renewable Energy Certificates is 
being phased out by January 2012, as a way to meet the renewable energy 
consumption levels established under section 203 of EPACT 2005 and 
Executive Order 13423 (see ``Renewable Energy Requirement Guidance for 
EPACT 2005 and Executive Order 13423,'' available at: http://www1.eere.energy.gov/femp/pdfs/epact05_fedrenewenergyguid.pdf).
    DOE is leaning toward allowing Power Purchase Agreements with a 
long-term contract to count toward meeting the fossil fuel-generated 
energy consumption reduction requirements, but not allowing Renewable 
Energy Certificates. Under this approach, agencies would be allowed to 
subtract the annual electricity generated by the renewable energy-
generation facility from the building's annual site electrical energy 
consumption. The building designer would use this quantity, the net 
site electrical energy consumption, when calculating the building's 
fossil fuel-generated energy consumption. In effect, the Power Purchase 
Agreements would help agencies meet the fossil fuel consumption 
requirements. DOE invites comments on how Renewable Energy Certificates 
and Power Purchase Agreements should be addressed in the context of 
this rulemaking. DOE also invites comments on the proposed approach 
with respect to Power Purchase Agreements.
Potential Impact on Onsite Electrical Generation From Natural Gas
    DOE is interested in the effect of fossil fuel-generated energy 
consumption reduction requirements on distributed energy technologies 
that provide onsite electrical generation from natural gas such as in 
power plants and combined heat and power (CHP) systems. At power plants 
and in CHP systems, natural gas is used to generate both heat and 
electricity. A building with a CHP system could potentially be an all-
gas building in terms of utility purchases and would therefore be 
required to reduce natural gas consumption in accordance with the 
fossil fuel-generated energy consumption reduction requirements. DOE's 
intent is to ensure the rule does not penalize or discourage the use of 
on-site CHP systems, and invites comments how appropriate credit may be 
given for CHP systems through the compliance determination methodology.

E. Cost Analysis

    Given the significant reductions in fossil fuel-generated energy 
consumption that would be required in today's proposed rulemaking, one 
obvious question is how much will compliance with this proposed rule 
impact the cost of new Federal construction and major renovations. The 
answer to that question depends both on the building type and type of 
housing unit being constructed and the level of fossil fuel-generated 
energy consumption reduction that is required. DOE commissioned a study 
by Pacific Northwest National Laboratory in 2008 to look at the 
incremental costs of high performance buildings. Cost data for high 
performance buildings is fairly rare and many times the costs for 
achieving high levels of energy efficiency are intermingled with the 
costs to achieve

[[Page 63411]]

more sustainable design. That report entitled, ``Literature Review of 
Data on the Incremental Costs to Design and Build Low-Energy Buildings 
(Hunt, WD, 2008, PNNL-17502 and available at http://www.pnl.gov/main/publications/external/technical_reports/PNNL-17502.pdf) came to the 
following key findings as noted in the summary of the document:

    Key findings of this literature review are as follows:
    1. Objectively-developed and verifiable data on the cost premium 
for low-energy (high efficiency) buildings are very limited. Most of 
the literature focused on green or sustainable buildings, not on 
low-energy buildings.
    2. In cases where energy efficiency cost data were available, 
the cost premiums ranged from 1% to 7%. In most cases, the cost 
premium was less than 4%.
    3. Technology solutions are available right now to achieve 
savings on the order of 30% and more over ASHRAE Standard 90.1-2004; 
however, cost-effectiveness of these technology solutions is often 
not addressed.
    4. Independent surveys administered to assess the perceptions of 
building owners and designers regarding the costs to build and 
operate green/energy-efficient buildings, and the willingness of 
owners/developers to invest in green/energy-efficient buildings, 
reveal some interesting common threads.
    i. There is a perception that energy-efficient/green buildings 
cost significantly more to design (starting at a 5% premium) and 
represent a key barrier with decision makers.
    ii. There seems to be a potential willingness (as implied or 
measured through survey responses) to build more energy-efficient 
buildings for cost premiums below 5%.

    In response to the third key finding listed in the report, DOE 
began calculating cost impacts for their work associated with AEDGs. 
Cost impact data are available in the technical support document (TSD) 
of one published ASHRAE AEDG for small warehouses that are 30% better 
than Standard 90.1-2004 and four TSDs prepared by DOE for support of 
future AEDGs that will achieve 50% savings over Standard 90.1-2004. The 
four TSDs are for medium offices, roadside lodging, general retail, and 
grocery stores. DOE expects to develop six additional TSDs for small 
offices, large offices, quick service restaurants, large hospitals, 
university dormitories, and K-12 schools in FY10. These additional TSDs 
were not available at the time this notice was prepared.
    The available TSDs may be found at: Small Warehouse (30% savings)--
http://www.pnl.gov/main/publications/external/technical_reports/PNNL-17056.pdf. General Merchandise (50% savings)--http://www.nrel.gov/docs/fy09osti/46100.pdf. Grocery Stores (50% savings)--http://www.nrel.gov/docs/fy09osti/46101.pdf. Highway Lodging Buildings (50% savings)--
http://www.pnl.gov/main/publications/external/technical_reports/PNNL-18773.pdf. Medium Office (50% savings)--http://www.pnl.gov/main/publications/external/technical_reports/PNNL-19004.pdf.
    Results from the cost analyses in three of these TSDs--small 
warehouse, highway lodging, and medium office--are shown below in Table 
3. Ranges in the results are a function of climate zone, with buildings 
in some climates zones costing more or generating less energy savings. 
Multiple HVAC systems were evaluated for the 50% medium office--a more 
efficient but more expensive radiant system and a more standard 
variable air volume (VAV) system. It should be noted that all of the 
buildings analyzed for the TSDs did have increased first costs, but 
that the energy savings provided relatively good payback periods.

                    Table 3--Cost Effectiveness Analysis of Highly Energy Efficient Buildings
----------------------------------------------------------------------------------------------------------------
                                                                          Incremental cost    Simple payback on
             TSD                Building square    Incremental cost ($      (percentage         energy savings
                                    footage             per ft\2\)           increase)             (years)
----------------------------------------------------------------------------------------------------------------
Warehouse...................  50,000 ft\2\.......  1.88 to 3.56.......  2.6% to 7%.........  6.0 to 13.5.
Highway Lodging.............  43,000 ft\2\.......  7.58 to 10.85......  8.4% to 8.7%.......  9.6 to 15.9.
Medium Office...............  53,600 ft\2\.......  5.47 to 9.03         5.4% to 7.0%         5.6 to 11.1
                                                    (Radiant) 2.37 to    (Radiant) 2.7% to    (Radiant) 3.3 to
                                                    4.22 (VAV).          3.9% (VAV).          6.2 (VAV).
----------------------------------------------------------------------------------------------------------------

    Consideration of the graduated levels of fossil fuel-generated 
energy consumption reduction listed in the statute (55%, 65%, 80%, 90%, 
and 100%), coupled with the fact that a percentage reduction is not 
directly comparable to a 30% or 50% savings over ASHRAE Standard 90.1-
2004, makes it hard to determine what level of savings is associated 
with the 1% to 7% cost premiums cited in the PNNL study (``Literature 
Review of Data on the Incremental Costs to Design and Build Low-Energy 
Buildings,'' Hunt, WD, 2008, PNNL-17502). Converting both the 
requirements of this proposed rulemaking and the simulated performance 
of buildings built to 30% better than ASHRAE Standard 90.1-2004 to a 
common Energy Use Intensity basis provides a better method of 
comparison. Also note that the comparison must be made on a similar 
energy basis. Today's proposed rulemaking applies to fossil fuel-
generated energy consumption, which is close to source energy, while 
results from the TSDs are typically expressed in site energy.
    Table 4 shows the comparison of the fossil fuel-generated energy 
consumption reductions proposed in this rulemaking to the fossil fuel 
reductions achieved in the simulations associated with two of the TSDs, 
the medium office and highway lodging.

                    Table 4--Fossil Fuel-Generated Energy Consumption Proposed in Today's Rulemaking and Calculated in Selected AEDGs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   55% Fossil      65% Fossil      80% Fossil      Fossil fuel
                                                 fuel reduction  fuel reduction  fuel reduction     reduction
                 Building type                     from CBECS      from CBECS      from CBECS     calculated in   Incremental cost (percentage increase)
                                                   kBtu/ft\2\      kBtu/ft\2\      kBtu/ft\2\    TSD kBtu/ft\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Medium Office (Rad)............................              72              56              32            49.2  5.4% to 7.0%.
Medium Office (VAV)............................              72              56              32            63.6  2.7% to 3.9%.
Highway Lodging................................              67              52              30            56.4  8.4% to 8.7%.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 63412]]

    Table 4 indicates that the estimated cost savings from the 50% TSDs 
can be used to support the fact that 55% fossil fuel-generated energy 
consumption reductions and perhaps even 65% fossil fuel-generated 
energy consumption reductions from CBECS will require cost increases of 
no more than 8.7%. None of the savings achieved in the 50% TSDs 
approach the reduction mandated at the 80% fossil fuel-generated energy 
consumption reduction level, so the cost estimates for that level of 
savings and higher levels cannot be estimated.
    With respect to residential buildings, DOE does not anticipate that 
there will be many low-rise residential buildings that will fall under 
today's proposed rulemaking as most Federal low-rise residential 
buildings are not likely to be public buildings or buildings for which 
construction costs are at least $2.5 million in 2007 dollars, which are 
criteria that determine whether buildings are subject to the 
requirements in today's proposed rule. The only low-rise residential 
buildings that might be considered to fall under today's proposed rule 
would be low-rise military barracks, and those barracks are best 
considered to be similar to the dormitory or lodging building types 
found in CBECS.
    Using CBECS and RECS baselines without a climate adjustment puts 
buildings in colder climate zones at a cost disadvantage because the 
non-adjusted baseline would be lower than for one adjusted for climate. 
A non-adjusted baseline for colder climates would require larger, more 
costly fossil fuel-generated energy consumption reductions. Conversely, 
using CBECS and RECS baselines without a climate adjustment provides a 
cost advantage to buildings in warmer climate zones because the 
baseline would be greater than for one adjusted for climate. A non-
adjusted baseline for warmer climates would require smaller, less 
costly fossil fuel-generated energy consumption reductions.
    However, adjusting for climate in both the baseline and the 
required reduction level would be expected to eliminate potential 
regional inequity that could result from climate variation and help 
ensure that the fossil fuel-generated energy consumption reductions are 
commensurate to the climate zone. Similarly, consideration of regional 
variations in the fossil fuel contribution to electricity is not 
expected to result in substantial differences in the compliance burden 
for buildings across regions so long as regional variations are also 
reflected in the baseline buildings. If the regional values were used 
for both the baseline building and the required reduction level, the 
burden of meeting the percentage reductions would remain roughly the 
same in all regions (although regions with low fossil fuel use in the 
electric sector might have to find more savings in non-electric end-
uses).
    DOE is seeking comment on a number of issues related to the cost-
effectiveness of today's proposed rule, especially any construction 
cost increases for buildings Federal agencies are in the process of 
designing or have already built. DOE is seeking comment on these cost 
impacts.

F. Agency Petitions for Adjustment to the Percentage Reduction 
Requirement

    ECPA as amended by EISA permits DOE upon petition by an agency 
subject to the statutory requirements to adjust the applicable numeric 
fossil 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 
such requirement would be technically impracticable in light of the 
agency's specified functional needs for the building'' and DOE concurs 
with the agency's conclusion. (42 U.S.C. 6834(a)(3)(D)(i)(II)) ECPA as 
amended by EISA further directs that such an adjustment does not apply 
to GSA.
    Today's action proposes that a petition for downward adjustment of 
the numeric requirement should include an explanation of what measures 
would be required to meet the fossil fuel-generated energy consumption 
reduction requirement, and why those measures would be technically 
impracticable in light of the agency's specified functional needs for 
the building. DOE proposes that the petition should also demonstrate 
that the adjustment requested by the agency represents the largest 
feasible reduction in fossil fuel-generated energy consumption that can 
reasonably be achieved. DOE welcomes comments on that proposal. 
Although the downward adjustment provision of ECPA as amended by EISA 
does not expressly include cost considerations, DOE is considering 
incorporating cost considerations as part of a ``technically 
impracticable'' determination. Cost would not be the sole rationale for 
a determination of ``technically impracticable,'' but high costs could 
be part of the evaluation. (42 U.S.C. 6834(a)(3)(D)). DOE also invites 
comments that would help clarify what kind of technical 
impracticability would constitute grounds for a petition for downward 
adjustment.
    The petition pursuant to ECPA as amended by EISA should also 
include a written certification statement by the head of the agency 
designing the building that meeting the fossil fuel-generated energy 
consumption reduction requirements would be technically impracticable 
in light of the agency's specified functional needs for that building. 
42 U.S.C. 6834(D)(i)(II).
    DOE notes that the statute exempts GSA from the option to petition 
DOE for a downward adjustment of the applicable percentage reduction 
requirement. However, DOE proposes that a new Federal building or a 
Federal building undergoing major renovations for which a Federal 
agency is providing substantive and significant design criteria may be 
the subject of a petition. Under this approach, a GSA building that is 
designed to meet the specifications provided by a tenant agency may be 
considered for a downward adjustment if a petition is submitted by the 
head of the tenant agency.
    DOE will review petitions in a timely manner. If the petitioning 
agency has successfully demonstrated the need for a downward adjustment 
per the discussion above, DOE will concur with the agency's conclusion 
and notify the agency in writing. If DOE does not concur, it will 
forward its reasons to the petitioning agency with suggestions as to 
how the fossil fuel-generated energy consumption percentage reduction 
requirement may be achieved.
    A petition for downward adjustment of the numeric reduction, 
including any supporting information, would be addressed to: Margo 
Appel, Building Technologies Program, U.S. Department of Energy, 1000 
Independence Avenue, SW., Washington, DC 20585.

G. Guidance on Measures To Reduce Fossil Fuel-Generated Energy 
Consumption

    Building energy efficiency solutions involve advanced technologies, 
integrated design principles, control strategies and other tools. The 
appropriate solution and the effectiveness of each solution will vary 
based on building type, building size, and location. To successfully 
design a high performance building, Federal agencies must use a 
reputable, experienced design team. There are an increasing number of 
firms in all locations that have designed high performance buildings. 
The key to successful design is identifying firms with the requisite 
experience and skills, adopting an integrated design process that 
begins at the first phase of the building project, and providing clear

[[Page 63413]]

direction and quality control over the firm's work. DOE invites comment 
from agencies as to what additional training in this area might be 
helpful.
    Numerous tools are available to help Federal agencies achieve the 
required fossil fuel reductions. DOE, in conjunction with ASHRAE, has 
developed a series of Advanced Energy Design Guides to achieve 30 
percent reductions in energy use for several types of small buildings 
(small office buildings, small retail buildings, K-12 school buildings, 
small warehouses and self-storage buildings, highway lodging, and small 
hospitals and healthcare facilities). DOE and ASHRAE are working on 50 
percent reduction guidelines for several building types. Additional 
tools and resources are available through the EERE Web site. DOE's 
Building Technologies Program maintains a database of high-performance 
buildings (available at http://eere.buildinggreen.com).
    Other resources include: The National Institute of Building 
Sciences' Whole Building Design Guide; the U.S. Green Building 
Council's Leadership in Energy and Environmental Design (LEED) system; 
ASHRAE Standard 189.1-2009, Standard for the Design of High Performance 
Green Buildings Except Low-Rise Residential Buildings; and the 
International Code Council's International Green Construction Code 
Public Version 1.0. DOE's Federal Energy Management Program (FEMP) Web 
site provides access to these and other resources and tools that can 
help Federal agencies improve the energy efficiency of new and existing 
buildings (available at http://www1.eere.energy.gov/femp/). DOE has 
also published a cool roof resource guide for Federal agencies, 
available at http://www1.eere.energy.gov/femp/features/cool_roof_resources.html. DOE is also developing additional guidance that 
provides technical and cost data related to the installation of cool 
roofs.

H. Post-Construction Monitoring and Reporting

    ECPA as amended by EISA does not contain any explicit post-
construction monitoring and reporting requirements. Federal agencies, 
however, are reminded of the monitoring, reporting, and benchmarking 
requirements in section 103 of the Energy Policy Act of 2005 (EPAct 
2005) and section 432 of EISA. FEMP has issued guidance for the 
metering requirements in section 103 of EPAct 2005 (available at http://www1.eere.energy.gov/femp/pdfs/adv_metering.pdf). FEMP has also 
developed guidance for meeting EISA section 432 requirements (available 
at http://www1.eere.energy.gov/femp/pdfs/eisa_s432_guidelines.pdf). 
Finally, FEMP has also issued additional guidance on EISA section 432 
benchmarking (available at http://www.eere.energy.gov/femp/pdfs/eisa_s432_guidelines.pdf).
    FEMP has selected the Energy Star Portfolio Manager as the required 
building energy use benchmarking system for Federal agencies. 
Additional information on the use of Energy Star Portfolio Manager, 
energy management, and benchmarking in general may be found on the EPA 
Energy Star Web site at http://www.energystar.gov/index.cfm?c=business.bus_index.

III. Reference Resources

    DOE has prepared a list of resources to help Federal agencies 
address the reduction of fossil fuel-generated energy consumption. The 
interim final rule on energy efficiency published in the Federal 
Register on December 4, 2006 (71 FR 70275) contains reference resources 
for energy efficiency improvement in building design. These resources 
come in many forms such as design guidance, case studies and in a 
variety of media such as printed documents or on Web sites. The 
resources for energy efficiency improvement will also provide guidance 
for fossil fuel-based energy consumption reduction.

IV. Regulatory Review

A. Review Under Executive Order 12866

    Today's notice of proposed rulemaking has been determined to be a 
significant regulatory action under section 3(f)(1) of Executive Order 
12866, ``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 
1993). Accordingly, today's action was reviewed by the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget (OMB).

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' (August 16, 2002), DOE published procedures and 
policies on February 19, 2003, to ensure that the potential impacts of 
its rules on small entities are properly considered during the 
rulemaking process (68 FR 7990). DOE has made its procedures and 
policies available on the Office of General Counsel's Web site: http://www.gc.doe.gov.
    DOE has reviewed today's proposed rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. Today's proposed rulemaking applies only to the 
fossil fuel-generated energy consumption of new Federal buildings and 
Federal buildings undergoing major renovation. As such, the only 
entities impacted by this rulemaking would be Federal agencies. DOE 
does not believe that there will be any impacts on small entities such 
as small businesses, small organizations, or small governmental 
jurisdictions.
    On the basis of the foregoing, DOE certifies that this proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. Accordingly, DOE has not prepared a 
regulatory flexibility analysis for this rulemaking. DOE's 
certification and supporting statement of factual basis will be 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration pursuant to 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

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

D. Review Under the National Environmental Policy Act

    The Department prepared a draft Environmental Assessment (EA) (DOE/
EA-1463) pursuant to the Council on Environmental Quality's (CEQ) 
Regulations for Implementing the Procedural Provisions of the National 
Environmental Policy Act (40 CFR parts 1500-1508), the National 
Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et 
seq.), and DOE's NEPA Implementing Procedures (10 CFR part 1021).
    The draft EA addresses the potential incremental environmental 
effects attributable to the application of the proposed rules. The 
draft EA has been added to the docket for this rulemaking.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies

[[Page 63414]]

or regulations that preempt State law or that have federalism 
implications. The Executive Order requires agencies to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and carefully assess 
the necessity for such actions. DOE has examined the proposed rule and 
determined that it would not preempt State law and would not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of Government. No further 
action is required by Executive Order 13132.

F. Review Under Executive Order 12988

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

G. Review Under the Unfunded Mandates Reform Act of 1995

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

H. Review Under the Treasury and General Government Appropriations Act, 
1999

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

I. Review Under Executive Order 12630

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

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

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

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OMB 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. Today's proposed rule 
would not have a significant adverse effect on the supply, 
distribution, or use of energy and, therefore, is not a significant 
energy action. Accordingly, DOE has not prepared a Statement of Energy 
Effects.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's notice 
of proposed rulemaking.

List of Subjects in 10 CFR Parts 433 and 435

    Buildings and facilities, Energy conservation, Engineers, Federal 
buildings and facilities, Housing.


[[Page 63415]]


    Issued in Washington, DC, on September 30, 2010.
Cathy Zoi,
Assistant Secretary, Energy Efficiency and Renewable Energy.

    For the reasons set forth in the preamble, DOE proposes to amend 
chapter II of title 10 of the Code of Federal Regulations as set forth 
below:

PART 433--ENERGY EFFICIENCY AND FOSSIL FUEL-GENERATED ENERGY 
CONSUMPTION REDUCTION DESIGN STANDARDS FOR NEW AND MAJOR 
RENOVATIONS TO FEDERAL COMMERCIAL AND MULTI-FAMILY HIGH-RISE 
RESIDENTIAL BUILDINGS

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

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

    2. The heading for part 433 is revised to read as set forth above.
    3. Section 433.1 is revised to read as follows:


Sec.  433.1   Purpose and scope.

    This part establishes an energy efficiency performance and maximum 
allowable fossil fuel-generated energy consumption standard for new 
Federal commercial and multi-family high-rise residential buildings, 
for which design for construction began on or after January 3, 2007 
(except as otherwise indicated: fossil fuel-generated energy 
consumption requirements are applicable one year after publication of 
the final rule), as required by section 305(a) of the Energy 
Conservation and Production Act, as amended (42 U.S.C. 6834(a)). 
Additionally, this part establishes certain requirements applicable to 
major renovations of Federal commercial and multi-family high-rise 
residential buildings, as indicated. For renovated buildings, those 
requirements apply only to the portions of the building or building 
systems that are being renovated and to the extent that the scope of 
the renovation permits compliance with the applicable requirements in 
this part. Unaltered portions of the building or building systems are 
not required to comply with this part.
    4. Section 433.2 is amended by adding in alphabetical order new 
definitions for ``Direct fossil fuel consumption,'' ``District Energy 
System,'' ``Electricity fossil fuel-generation ratio,'' ``Electricity 
source energy factor,'' ``Fossil fuel,'' ``Fossil fuel consumption for 
electricity generation,'' ``Fossil fuel-generated energy consumption,'' 
``Multi-family high-rise residential building,'' and ``Primary 
electrical energy consumption'' to read as follows:


Sec.  433.2  Definitions.

* * * * *
    Direct fossil fuel consumption means the total fossil fuel 
consumption in a building excluding fossil fuel consumption for 
electricity generation. This includes any fossil fuel consumption 
resulting from a district energy system used in a building.
    District Energy System means a central energy conversion plant and 
transmission and distribution system that provides thermal energy to a 
group of buildings (heating via hot water or steam, and/or cooling via 
chilled water). This definition includes only thermal energy systems; 
central energy supply systems that provide only electricity are 
excluded from this definition.
* * * * *
    Electricity fossil fuel-generation ratio means the fraction of 
national U.S. electricity generation from fossil fuel sources as 
provided by the Energy Information Administration Electric Power Annual 
report for the appropriate year.
    Electricity source energy factor is the ratio of primary electrical 
energy consumed to generate and deliver energy to a site relative to 
electrical energy consumed on site. The electricity source energy 
factor may be calculated by dividing the average utility delivery ratio 
in Table 6.2.4 of the DOE Building Energy Data Book for the appropriate 
year by 3412 to convert the value from Btu/kWh to kWh/kWh.
* * * * *
    Fossil fuel means a fuel formed in the earth from plant or animal 
remains. Fossil fuels include coal, oil, natural gas, kerosene, and 
liquefied petroleum gas (LPG).
    Fossil fuel consumption for electricity generation means the 
primary electrical energy consumption in a building supplied from the 
national power grid multiplied by the electricity fossil fuel-
generation ratio. Electricity generated completely from non-fossil fuel 
sources or from a dedicated source not connected to the national power 
grid is excluded from this definition.
    Fossil fuel generated-energy consumption means the sum of direct 
fossil fuel consumption plus fossil fuel consumption for electricity 
generation.
* * * * *
    Multi-family high-rise residential building means a residential 
building that contains three or more dwelling units and that is 
designed to be 4 or more stories above grade.
* * * * *
    Primary electrical energy consumption means the total amount of 
energy used to generate and deliver electrical energy to a building 
from the national power grid.
* * * * *
    5. Section 433.4 is amended by adding new paragraphs (d), (e), and 
(f) to read as follows:


Sec.  433.4  Energy efficiency performance standard.

* * * * *
    (d) All Federal agencies shall design new Federal commercial and 
multi-family high-rise residential buildings and major renovations to 
Federal commercial and multi-family high-rise residential buildings, 
for which design for construction began at least one year after 
publication of the final rule, to meet the requirements of paragraph 
(e) of this section if:
    (1) The subject building is a public building as defined in 40 
U.S.C. 3301 and for which transmittal of a prospectus to Congress is 
required under 40 U.S.C. 3307; or
    (2) The cost of the building or major renovation is at least 
$2,500,000 (in 2007 dollars, adjusted for inflation).
    (e)(1) All Federal agencies shall design new Federal commercial and 
multi-family high-rise residential buildings and major renovations of 
Federal commercial and multi-family high-rise residential buildings for 
which design for construction began at least one year after publication 
of the final rule and that are classified in paragraph (d) of this 
section, to meet fossil fuel-generated energy consumption values equal 
to or lesser than the values shown in Table 1. The maximum allowable 
fossil fuel generated energy consumption values in Table 1 are a 
function of building type and fiscal year for which design for 
construction began.
    (2) For the purpose of this paragraph (e), the following 
definitions apply:
    (i) Education means buildings used for academic or technical 
classroom instruction, such as elementary, middle, or high schools, and 
classroom buildings on college or university campuses. Buildings on 
education campuses for which the main use is not classroom are included 
in the category relating to their use. For example, administration 
buildings are part of ``Office,'' dormitories are ``Lodging,'' and 
libraries are ``Public Assembly.''
    (ii) Food sales means buildings used for retail or wholesale of 
food. For example, grocery stores are ``Food Sales.''
    (iii) Food service means buildings used for preparation and sale of 
food and beverages for consumption. For example, restaurants are ``Food 
Service.''

[[Page 63416]]

    (iv) Health care (inpatient) means buildings used as diagnostic and 
treatment facilities for inpatient care.
    (v) Health care (outpatient) means buildings used as diagnostic and 
treatment facilities for outpatient care. Medical offices are included 
here if they use any type of diagnostic medical equipment (if they do 
not, they are categorized as an office building).
    (vi) Lodging means buildings used to offer multiple accommodations 
for short-term or long-term residents, including skilled nursing and 
other residential care buildings.
    (vii) Multi-family in 2-4 unit buildings means a unit in a building 
with two to four housing units--a structure that is divided into living 
quarters for two, three, or four families or households in which one 
household lives above or beside another. This category also includes 
houses originally intended for occupancy by one family (or for some 
other use) that have since been converted to separate dwellings for two 
to four families.
    (viii) Multi-family in 5 or more unit buildings means a unit in a 
building with five or more housing units--a structure that contains 
living quarters for five or more households or families and in which 
one household lives above or beside another.
    (ix) Public assembly means public or private buildings, or spaces 
therein, in which people gather for social or recreational activities.
    (x) Public order and safety means buildings used for the 
preservation of law and order or public safety.
    (xi) Religious worship means buildings in which people gather for 
religious activities, (such as chapels, churches, mosques, synagogues, 
and temples).
    (xii) Retail (other than mall) means buildings used for the sale 
and display of goods other than food.
    (xiii) Service means buildings in which some type of service is 
provided, other than food service or retail sales of goods.
    (xiv) Warehouse and storage means buildings used to store goods, 
manufactured products, merchandise, raw materials, or personal 
belongings (such as self-storage).

Table 1--Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Type, Commercial Buildings, kBtu/
                                                      ft\2\
----------------------------------------------------------------------------------------------------------------
                                         kBtu/ft\2\ by fiscal year for which design for construction began
                                 -------------------------------------------------------------------------------
          Building type                                                                             FY 2030 and
                                   FY 2012-2014    FY 2015-2019    FY 2020-2024    FY 2025-2029       beyond
----------------------------------------------------------------------------------------------------------------
Education.......................              57              44              25              13               0
Food Sales......................             174             135              77              39               0
Food Service....................             182             141              81              40               0
Health Care (Inpatient).........             141             109              63              31               0
Health Care (Outpatient)........              67              52              30              15               0
Lodging.........................              67              52              30              15               0
Retail (Other Than Mall)........              57              44              25              13               0
Office..........................              72              56              32              16               0
Public Assembly.................              56              44              25              12               0
Public Order and Safety.........              66              51              29              15               0
Religious Worship...............              28              22              12               6               0
Service.........................              51              40              23              11               0
Warehouse and Storage...........              30              23              13               7               0
----------------------------------------------------------------------------------------------------------------

    (3) For multi-family high-rise residential buildings, the maximum 
allowable fossil fuel-generated energy consumption in kBtu per ft\2\ is 
listed in Table 2.

  Table 2--Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Type, Multi-Family High-Rise
                                        Residential Buildings, kBtu/ft\2\
----------------------------------------------------------------------------------------------------------------
                                         kBtu/ft\2\ by fiscal year for which design for construction began
                                 -------------------------------------------------------------------------------
          Building type                                                                             FY 2030 and
                                   FY 2012-2014    FY 2015-2019    FY 2020-2024    FY 2025-2029       beyond
----------------------------------------------------------------------------------------------------------------
Multi-Family in 2-4 Unit                      47              37              21              11               0
 Buildings......................
Multi-Family in 5 or More Unit                42              33              19               9               0
 Buildings......................
----------------------------------------------------------------------------------------------------------------

    (4) For buildings that combine one or more building types within or 
between Tables 1 and 2, area-weighted fossil fuel-generated energy 
consumption may be calculated by multiplying the floor area of each 
building type by the consumption value from the appropriate table for 
that building type, then dividing by the total floor area of the 
combined building types.
    (5) For Federal buildings that do not fit into any of the building 
type categories listed in Table 1 or Table 2 of Sec.  433.4, a baseline 
fossil fuel-generated energy consumption shall be calculated using the 
Performance Rating Method, Appendix G of ASHRAE Standard 90.1-2004, as 
outlined in Sec.  433.5. The maximum allowable fossil fuel-generated 
energy consumption for the proposed design shall be calculated by using 
the following formula:

Maximum Allowable Fossil Fuel-Generated Energy Consumption = ((Baseline 
Design Electricity Consumption x Electricity Source Energy Factor x 
Electricity Fossil Fuel-Generation Ratio) + Baseline Design Direct 
Fossil Fuel Consumption) x Fossil Fuel Reduction Multiplier


[[Page 63417]]


    (6) The fossil fuel reduction multiplier in the formula above shall 
be taken from Table 3.

   Table 3--Fossil Fuel Reduction Multiplier by Fiscal Year for Which
                      Design for Construction Began
------------------------------------------------------------------------
                                                              Reduction
                        Fiscal year                           multiplier
------------------------------------------------------------------------
2012-2014..................................................         0.45
2015-2019..................................................         0.35
2020-2024..................................................         0.20
2025-2029..................................................         0.10
2030 and beyond............................................         0.00
------------------------------------------------------------------------

    (7) All building energy usage, including estimated receptacle and 
plug loads, must be included in the calculation in Table 3 of this 
section.
    (f)(1) Upon petition by an agency subject to this section, the 
Secretary may adjust the applicable numeric requirement in paragraph 
(e) of this section with respect to a specific building if:
    (i) The head of the agency designing the building certifies in 
writing that meeting such requirement would be technically 
impracticable in light of the agency's specified functional needs for 
that building;
    (ii) The head of the agency designing the building demonstrates 
that the requested adjustment is the largest feasible reduction in 
fossil fuel-generated consumption that can reasonably be achieved; and
    (iii) The Secretary concurs with the agency's conclusion.
    (2) This adjustment shall not apply to the General Services 
Administration.
    6. Section 433.5 is revised to read as follows:


Sec.  433.5  Performance level determination.

    (a) For new Federal commercial and multi-family high-rise 
residential buildings whose design for construction began on or after 
January 3, 2007, each Federal agency shall determine energy consumption 
levels for both the baseline and proposed building by using the 
Performance Rating Method found in Appendix G of ANSI/ASHRAE/IESNA 
Standard 90.1-2004, (incorporated by reference; see Sec.  433.3), 
except the formula for calculating the Performance Rating in paragraph 
G1.2 shall read as follows:

Percentage improvement = 100 x (Baseline building consumption-Proposed 
building consumption)/(Baseline building consumption-Receptacle and 
process loads)

    (b) Each Federal agency shall consider laboratory fume hoods and 
kitchen ventilation systems as part of the ASHRAE-covered HVAC loads 
subject to the 30 percent savings requirements in this section, rather 
than as process loads.
    (c) Subject to Sec.  433.4(d), each Federal agency shall calculate 
the fossil fuel-generated energy consumption of a proposed design by 
the following formula:

Proposed Design Fossil Fuel-Generated Energy Consumption = (Proposed 
Design Electricity Consumption x Electricity Source Energy Factor x 
Electricity Fossil Fuel-Generation Ratio) + Direct Fossil Fuel 
Consumption of Proposed Design

    (d) Subject to Sec.  433.4(d), if the fossil fuel-generated energy 
consumption of the proposed design is equal to or less than the 
applicable maximum allowable fossil fuel-generated energy consumption 
value in Sec.  433.4(e), the proposed design complies with the fossil 
fuel-generated consumption reduction requirement in Sec.  433.4. If the 
fossil fuel-generated energy consumption of the proposed design is 
greater than the applicable maximum allowable fossil fuel-generated 
energy consumption value in Sec.  433.4(e), the proposed design does 
not comply with the fossil fuel-generated energy consumption reduction 
requirement in Sec.  433.4, and the agency must either modify the 
design until the design complies with the requirement, or request and 
receive approval from the Secretary for a downward adjustment of the 
requirement.

PART 435--ENERGY EFFICIENCY AND FOSSIL FUEL-GENERATED ENERGY 
CONSUMPTION REDUCTION DESIGN STANDARDS FOR NEW AND MAJOR 
RENOVATIONS TO FEDERAL LOW-RISE RESIDENTIAL BUILDNGS

    7. The authority citation for part 435 continues to read as 
follows:

    Authority: 42 U.S.C. 6831-6832; 6834-6836; 42 U.S.C. 8253-54; 42 
U.S.C. 7101 et seq.

Subpart A--Mandatory Energy Efficiency and Fossil Fuel-Generated 
Energy Consumption Reduction Design Standards for Federal Low-Rise 
Residential Buildings

    8. The headings for part 435 and subpart A are revised to read as 
set forth above.
    9. Section 435.1 is revised to read as follows:


Sec.  435.1  Purpose and scope.

    This part establishes an energy efficiency performance and maximum 
allowable fossil fuel-generated energy consumption standard for new 
Federal low-rise residential buildings, for which design for 
construction began on or after January 3, 2007 (except as otherwise 
indicated: fossil fuel-generated energy requirements are applicable one 
year after publication of the final rule, as required by section 305(a) 
of the Energy Conservation and Production Act, as amended (42 U.S.C. 
6834(a)). Additionally, this part establishes certain requirements 
applicable to major renovations of Federal low-rise buildings, as 
indicated. For renovated buildings, those requirements apply only to 
the portions of the building or building systems that are being 
renovated and to the extent that the scope of the renovation permits 
compliance with the applicable requirements in this rule. Unaltered 
portions of the building or building systems are not required to comply 
with this rule.
    10. Section 435.2 is amended by adding in alphabetical order new 
definitions for ``Direct fossil fuel consumption,'' ``District Energy 
System,'' ``Electricity fossil fuel-generation ratio,'' ``Electricity 
source energy factor,'' ``Fossil fuel,'' ``Fossil fuel consumption for 
electricity generation,'' ``Fossil fuel-generated energy consumption,'' 
and ``Primary electrical energy consumption'' to read as follows:


Sec.  435.2  Definitions.

* * * * *
    Direct fossil fuel consumption means the total fossil fuel 
consumption in a building excluding primary electrical energy 
consumption. This includes any fossil fuel consumption resulting from a 
district energy system used in a building.
    District Energy System means a central energy conversion plant and 
transmission and distribution system that provides thermal energy to a 
group of buildings (heating via hot water or steam, and/or cooling via 
chilled water). This definition includes only thermal energy systems; 
central energy supply systems that provide only electricity are 
excluded from this definition.
* * * * *
    Electricity fossil fuel-generation ratio means the fraction of 
national U.S. electricity generation from fossil fuel as provided by 
the Energy Information Administration Electric Power report for the 
appropriate year.
    Electricity source energy factor is the ratio of primary electrical 
energy consumed to generate and deliver energy to a site to the 
electrical energy consumed on site. Electricity source energy factor 
may be calculated by dividing the average utility delivery

[[Page 63418]]

ratio in Table 6.2.4 of the DOE Building Energy Data Book for the 
appropriate year by 3412 to convert the value from Btu/kWh to kWh/kWh.
* * * * *
    Fossil fuel means a fuel formed in the earth from plant or animal 
remains. Fossil fuels include coal, oil, natural gas, kerosene, and 
liquefied petroleum gas (LPG).
    Fossil fuel consumption for electricity generation means the 
primary electrical energy consumption in a building supplied from the 
national power grid multiplied by the electricity fossil fuel-
generation ratio. Electricity generated completely from non-fossil fuel 
sources or from a dedicated source not connected to the national power 
grid is excluded from this definition.
    Fossil fuel-generated energy consumption means the sum of direct 
fossil fuel consumption plus fossil fuel consumption for electricity 
generation.
* * * * *
    Primary electrical energy consumption means the total amount of 
energy used to generate and deliver electrical energy to a building 
from the national power grid.
* * * * *
    11. Section 435.4 is amended by adding new paragraphs (d), (e), and 
(f) to read as follows:


Sec.  435.4  Energy efficiency performance standard.

* * * * *
    (d) All Federal agencies shall design new Federal low-rise 
residential buildings and major renovations to Federal low-rise 
residential buildings, for which design for construction began at least 
one year after publication of the final rule, to meet the requirements 
of paragraph (e) of this section if:
    (1) The subject building is a public building as defined in 40 
U.S.C. 3301 and for which transmittal of a prospectus to Congress is 
required under 40 U.S.C. 3307; or
    (2) The cost of the building or major renovation is at least 
$2,500,000 (in 2007 dollars, adjusted for inflation).

    (e)(1) All Federal agencies shall design new Federal low-rise 
residential buildings or major renovations of Federal low-rise 
residential buildings for which design for renovation began at least 
one year after publication of the final rule and that are classified in 
paragraph (d) of this section, to meet fossil fuel-generated energy 
consumption values equal to or lesser than the values shown in Table 1. 
The maximum allowable fossil fuel-generated energy consumption values 
in Table 1 area function of housing type and fiscal year for which 
design for construction began.
    (2) For the purpose of this paragraph (e), the following 
definitions apply:
    (i) Manufactured home means a housing unit built to the Federal 
Manufactured Home Construction and Safety Standards in 24 CFR part 
3280, that is built on a permanent chassis and moved to a site. It may 
be placed on a permanent or temporary foundation and may contain one or 
more rooms.
    (ii) Multi-family in 2-4 unit buildings means a unit in a building 
with two to four housing units--a structure that is divided into living 
quarters for two, three, or four families or households in which one 
household lives above or beside another. This category also includes 
houses originally intended for occupancy by one family (or for some 
other use) that have since been converted to separate dwellings for two 
to four families. This includes modular homes but does not include 
manufactured homes.
    (iii) Multi-family in 5 or more unit buildings means a unit in a 
building with five or more housing units--a structure that contains 
living quarters for five or more households or families and in which 
one household lives above or beside another. This includes modular 
homes but does not include manufactured homes.
    (iv) Single-family attached means a housing unit connected to 
another housing unit, generally with a shared wall, that provides 
living space for one household or family. Attached houses are 
considered single-family houses as long as they are not divided into 
more than one housing unit and they have an independent outside 
entrance. A single-family house is contained within walls extending 
from the basement (or the ground floor, if there is no basement) to the 
roof. Townhouses, rowhouses, and duplexes are considered single-family 
attached housing units, as long as there is no household living above 
another one within the walls extending from the basement to the roof to 
separate the units. This includes modular homes but does not include 
manufactured homes.
    (v) Single-family detached means a separate, unconnected housing 
unit, not sharing a wall with any other building or housing unit, that 
provides living space for one household or family. A single-family 
house is contained within walls extending from the basement (or the 
ground floor, if there is no basement) to the roof. This includes 
modular homes but does not include manufactured homes.

   Table 1--Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Type, Low-Rise Residential
                                              Buildings, kBtu/ft\2\
----------------------------------------------------------------------------------------------------------------
                                         kBtu/ft\2\ by Fiscal year for which design for construction began
                                 -------------------------------------------------------------------------------
          Building type                                                                             FY2030 and
                                   FY 2012-2014    FY 2015-2019    FY 2020-2024    FY 2025-2029       beyond
----------------------------------------------------------------------------------------------------------------
Single-Family Detached..........              27              21              12               6               0
Single-Family Attached..........              30              23              13               7               0
Multi-Family in 2-4 Unit                      47              37              21              11               0
 Buildings......................
Multi-Family in 5 or More Unit                42              33              19               9               0
 Buildings......................
Manufactured Homes..............              52              40              23              12               0
----------------------------------------------------------------------------------------------------------------

    (3) For Federal buildings that do not fit into any of the building 
type categories listed in Table 1 of Sec.  435.4, a baseline fossil 
fuel-generated energy consumption shall be calculated using the 
Simulated Performance Alternative outlined in Sec.  435.5. The maximum 
allowable fossil fuel-generated energy consumption for the proposed 
design shall be calculated by using the following formula:

Maximum Allowable Fossil Fuel-Generated Energy Consumption = ((Baseline 
Design Electricity Consumption x Electricity Source Energy Factor x 
Electricity Fossil Fuel-Generation Ratio) + Baseline Design Direct 
Fossil Fuel Consumption) x Fossil Fuel Reduction Multiplier

    (4) The fossil fuel reduction multiplier in the formula above shall 
be taken from Table 2.

[[Page 63419]]



   Table 2--Fossil Fuel Reduction Multiplier by Fiscal Year for which
                      Design for Construction Began
------------------------------------------------------------------------
                                                              Reduction
                        Fiscal year                           multiplier
------------------------------------------------------------------------
2012-2014..................................................         0.45
2015-2019..................................................         0.35
2020-2024..................................................         0.20
2025-2029..................................................         0.10
2030 and beyond............................................         0.00
------------------------------------------------------------------------

    (5) All building energy usage, including estimated receptacle and 
plug loads, must be included in the calculation in Table 2 of this 
section.
    (f)(1) Upon petition by an agency subject to this section, the 
Secretary may adjust the applicable numeric requirement in paragraph 
(e) of this section with respect to a specific building, if:
    (i) The head of the agency designing the building certifies in 
writing that meeting such requirement would be technically 
impracticable in light of the agency's specified functional needs for 
that building;
    (ii) The head of the agency designing the building demonstrates 
that the requested adjustment is the largest feasible reduction in 
fossil fuel-generated consumption that can reasonably be achieved; and
    (iii) The Secretary concurs with the agency's conclusion.
    (2) This adjustment shall not apply to the General Services 
Administration.
    12. Section 435.5 is revised to read as follows:


Sec.  435.5  Performance level determination.

    (a) For new Federal low-rise residential buildings whose design for 
construction started on or after January 3, 2007, each Federal agency 
shall determine energy consumption levels for both the baseline 
building and proposed building by using the Simulated Performance 
Alternative found in section 404 of the ICC International Energy 
Conservation Code, 2004 Supplement Edition, January 2005 (incorporated 
by reference; see Sec.  435.3).
    (b) Subject to Sec.  435.4(d), each Federal agency shall calculate 
the fossil fuel-generated energy consumption of a proposed design by 
the following formula:

Proposed Design Fossil Fuel-Generated Energy Consumption = (Proposed 
Design Electricity Consumption x Electricity Source Energy Factor x 
Electricity Fossil Fuel-Generation Ratio) + Direct Fossil Fuel 
Consumption of Proposed Design

    (c) Subject to Sec.  435.4(d), if the fossil fuel-generated energy 
consumption of the proposed design is equal to or less than the 
applicable maximum allowable fossil fuel-generated energy consumption 
value in Sec.  435.4(e), the proposed design complies with the fossil 
fuel-generated energy consumption reduction requirement in Sec.  435.4. 
If the fossil fuel-generated energy consumption of the proposed design 
is greater than the applicable maximum allowable fossil fuel-generated 
energy consumption value in Sec.  435.4(e), the building does not 
comply with the fossil fuel-generated energy consumption reduction 
requirement in Sec.  435.4, and the agency must either modify the 
design until the design complies with the requirement, or request and 
receive approval from the Secretary for a downward adjustment of the 
requirement.

[FR Doc. 2010-25852 Filed 10-14-10; 8:45 am]
BILLING CODE 6450-01-P