Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Notices 43287 

on embargoed data from cognitive lab 

studies of 8th graders on the computerbased Technology and Engineering 

Literacy (TEL) assessment, in 

preparation for the 2013 TEL Pilot. The 

Board will be provided with specific 

test materials/questions for review that 

cannot be discussed/disclosed in an 

open meeting. Premature disclosure of 

these secure test items and materials 

would significantly impede 

implementation of the NAEP 

assessments, and is therefore protected 

by exemption 9(B) of section 552b(c) of 

Title 5 United States Code. 

The Committee on Standards, Design 

and Methodology will meet in open 

session from 10:15 a.m. to 12:00 p.m., 

and in closed session from 12:00 p.m. to 

12:30 p.m. During the closed session, 

the Committee will receive a briefing on 

secure data collected from the NAEP 

writing assessment regarding student 

uses of computer based options for the 

assessment and student responses 

collected as part of the assessment. The 

Board will be provided with specific 

assessment data for review that cannot 

be discussed/disclosed in an open 

meeting. Premature disclosure of these 

secure test results would significantly 

impede implementation of the NAEP 

assessments, and is therefore protected 

by exemption 9(B) of section 552b(c) of 

Title 5 United States Code. 

On August 5, from 12:45 p.m. to 

1:45 p.m. the full Board will meet in 

closed session to receive a briefing from 

NCES on the 2009 NAEP State Mapping 

Study. The Board will be provided with 

embargoed data and results that cannot 

be discussed in an open meeting prior 

to their official release by the National 

Center for Education Statistics on a date 

to be determined. Premature disclosure 

of these results would significantly 

impede implementation of the NAEP 

assessment program, and is therefore 

protected by exemption 9(B) of section 

552b(c) of Title 5 United States Code. 

From 2:00 p.m. to 3:00 p.m. in open 

sessions, the Board will receive updates 

from the Common Core State 

Assessment Consortia. Following this 

session, from 3:15 p.m. to 4:30 p.m., the 

Board will receive an overview of recent 

NAEP Report Card releases and discuss 

policy implications. The August 5, 2011 

session of the Board meeting is 

scheduled to conclude at 4:30 p.m. 

On August 6, 2011, the Nominations 

Committee will meet in closed session 

from 7:30 a.m. to 8:15 a.m. to receive an 

update on the status of finalists for 

Board terms beginning on October 1, 

2011. Following the update, the 

Committee will discuss nominations for 

the 2011–2012 cycle. These discussions 

pertain solely to internal personnel 

rules and practices of an agency and 

will disclose information of a personal 

nature where disclosure would 

constitute an unwarranted invasion of 

personal privacy. As such, the 

discussions are protected by exemptions 

2 and 6 of section 552b(c) of Title 5 of 

the United States Code. 

On August 6, the full Board will meet 

in open session from 8:30 a.m. to 

10:30 a.m. From 8:30 a.m. to 9:30 a.m., 

the Board will receive an Inside NAEP 

briefing on maintaining NAEP Trends. 

The Board is scheduled to receive 

Committee reports and take action on 

Committee recommendations. The 

August 6, 2011 session of the Board 

meeting is scheduled to adjourn at 

10:00 a.m. 

Detailed minutes of the meeting, 

including summaries of the activities of 

the closed sessions and related matters 

that are informative to the public and 

consistent with the policy of section 5 

U.S.C. 552b(c) will be available to the 

public within 14 days of the meeting. 

Records are kept of all Board 

proceedings and are available for public 

inspection at the U.S. Department of 

Education, National Assessment 

Governing Board, Suite #825, 800 North 

Capitol Street, NW., Washington, DC, 

from 9:00 a.m. to 5:00 p.m. Eastern 

Time, Monday through Friday. 

Electronic Access to This Document: 

You may view this document, as well as 

all other documents of this Department 

published in the Federal Register, in 

text or Adobe Portable Document 

Format (PDF) on the Internet at the 

following site: http://www.ed.gov/news/ 

fedregister/index.html. To use PDF you 

must have Adobe Acrobat Reader, 

which is available free at this site. If you 

have questions about using PDF, call the 

U.S. Government Printing Office (GPO), 

toll free at 1–866–512–1800; or in the 

Washington, DC, area at (202) 512–0000. 

Note: The official version of this document 

is the document published in the Federal 

Register. Free Internet access to the official 

edition of the Federal Register and the Code 

of Federal Regulations is available on GPO 

Access at: http://www.gpoaccess.gov/nara/ 

index.html. 

Dated: July 14, 2011. 

Cornelia S. Orr, 

Executive Director, National Assessment 

Governing Board, U.S. Department of 

Education. 

[FR Doc. 2011–18183 Filed 7–19–11; 8:45 am] 

BILLING CODE 4000–01–P 

DEPARTMENT OF ENERGY 

[Docket No. EERE–2006–BC–0132] 

RIN 1904–AC18 

Building Energy Standards Program: 

Determination Regarding Energy 

Efficiency Improvements in the Energy 

Standard for Buildings, Except LowRise Residential Buildings, ANSI/ 

ASHRAE/IESNA Standard 90.1–2007 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notice of final determination. 

SUMMARY: The Department of Energy 

(DOE) has determined that the 2007 

edition of the Energy Standard for 

Buildings, Except Low-Rise Residential 

Buildings, American National Standards 

Institute (ANSI)/American Society of 

Heating, Refrigerating and AirConditioning Engineers (ASHRAE) 

Illuminating Engineering Society of 

North America (IESNA) Standard 90.1– 

2007, (Standard 90.1–2007) would 

achieve greater energy efficiency in 

buildings subject to the code, than the 

2004 edition (Standard 90.1–2004 or the 

2004 edition). Also, DOE has 

determined that the quantitative 

analysis of the energy consumption of 

buildings built to Standard 90.1–2007, 

as compared with buildings built to 

Standard 90.1–2004, indicates national 

source energy savings of approximately 

3.9 percent of commercial building 

energy consumption. Additionally, DOE 

has determined site energy savings are 

estimated to be approximately 4.6 

percent. Upon publication of this 

affirmative final determination, States 

are required to certify that they have 

reviewed the provisions of their 

commercial building code regarding 

energy efficiency, and as necessary, 

updated their code to meet or exceed 

Standard 90.1–2007. Additionally, this 

notice provides guidance to States on 

Certifications, and Requests for 

Extensions of Deadlines for Certification 

Statements. 

DATES: Certification statements by the 

States must be provided by July 20, 

2013 

ADDRESSES: Certification Statements 

must be addressed to the Buildings 

Technologies Program-Building Energy 

Codes Program Manager, U.S. 

Department of Energy, Office of Energy 

Efficiency and Renewable Energy, 

Forrestal Building, Mail Station EE–2J, 

1000 Independence Avenue, SW., 

Washington, DC 20585–0121. 

FOR FURTHER INFORMATION CONTACT: 

Michael Erbesfeld, U.S. Department of 


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43288 Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Notices 

1The term ‘‘State’’ is defined to include each of 

the several States, the District of Columbia, the 

Commonwealth of Puerto Rico, and any territory 

and possession of the United States. (42 U.S.C. 

6832(11)) 

Energy, Office of Energy Efficiency and 

Renewable Energy, Forrestal Building, 

Mail Station EE–2J, 1000 Independence 

Avenue, SW., Washington, DC 20585– 

0121, (202) 287–1874, e-mail: 

michael.erbesfeld@ee.doe.gov. For legal 

issues contact Mrs. Kavita 

Vaidyanathan, U.S. Department of 

Energy, Office of the General Counsel, 

Forrestal Building, Mail Station GC–71, 

1000 Independence Avenue, SW., 

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

0669, e-mail: 

Kavita.Vaidyanathan@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

A. Statutory Requirements 

B. Background 

1. Publication of Standard 90.1–2007 

2. Preliminary Determination 

3. Public Comments Regarding the 

Preliminary Determination 

II. Summary of the Comparative Analysis 

A. Qualitative Analysis 

1. Discussion of Detailed Textual Analysis 

2. Results of Detailed Textual Analysis 

B. Quantitative Analysis 

1. Discussion of Whole Building Energy 

Analysis 

2. Results of Whole Building Energy 

Analysis 

C. Final Determination Statement 

III. Filing Certification Statements With DOE 

A. Review and Update 

B. Certification 

C. Requests for Extensions to Certify 

IV. Regulatory Analysis 

A. Review Under Executive Order 12866 

B. Review Under the Regulatory Flexibility 

Act 

C. Review Under the National 

Environmental Policy Act of 1969 

D. Review Under Executive Order 13132, 

‘‘Federalism’’ 

E. Review Under the Unfunded Mandates 

Reform Act of 1995 

F. Review Under the Treasury and General 

Government Appropriations Act of 1999 

G. Review Under the Treasury and General 

Government Appropriations Act of 2001 

H. Review Under Executive Order 13211 

I. Review Under Executive Order 13175 

I. Introduction 

A. Statutory Requirements 

Title III of the Energy Conservation 

and Production Act, as amended 

(ECPA), establishes requirements for the 

Building Energy Efficiency Standards 

Program. (42 U.S.C. 6831 et seq.) 

Section 304(b) of ECPA provides that 

whenever the ANSI/ASHRAE/IESNA 

Standard 90.1–1989 (Standard 90.1– 

1989 or 1989 edition), or any successor 

to that code, is revised, the Secretary 

must make a determination, not later 

than 12 months after such revision, 

whether the revised code would 

improve energy efficiency in 

commercial buildings and must publish 

notice of such determination in the 

Federal Register. (42 U.S.C. 6833 

(b)(2)(A)) The Secretary may determine 

that the revision of Standard 90.1–1989 

or any successor thereof, improves the 

level of energy efficiency in commercial 

buildings. If so, then not later than two 

years after the date of the publication of 

such affirmative determination, each 

State 1 is required to certify that it has 

reviewed and updated the provisions of 

its commercial building code regarding 

energy efficiency with respect to the 

revised or successor code. (42 U.S.C. 

6833(b)(2)(B)(i)) The State must include 

in its certification a demonstration that 

the provisions of its commercial 

building code, regarding energy 

efficiency, meet or exceed the revised 

standard. (42 U.S.C. 6833(b)(2)(B)(i)) 

If the Secretary makes a determination 

that the revised standard will not 

improve energy efficiency in 

commercial buildings, State commercial 

codes shall meet or exceed the last 

revised standard for which the Secretary 

has made a positive determination. (42 

U.S.C. 6833(b)(2)(B)(ii)). On December 

30, 2008, the Secretary published a 

determination in the Federal Register 

updating the reference code to Standard 

90.1–2004. 73 FR 79868. 

ECPA also requires the Secretary to 

permit extensions of the deadlines for 

the State certification if a State can 

demonstrate that it has made a good 

faith effort to comply with the 

requirements of Section 304 of ECPA 

and that it has made significant progress 

in doing so. (42 U.S.C. 6833(c)) 

B. Background 

1. Publication of Standard 90.1–2007 

ASHRAE and the Illuminating 

Engineering Society of North America 

(IESNA) approved the publication of the 

2007 edition of Energy Standard for 

Buildings Except Low-rise Residential 

Buildings, in December 2007. 

The Standard was developed under 

ANSI-approved consensus standard 

procedures. Standard 90.1 is under 

continuous maintenance by a Standing 

Standard Project Committee (SSPC) for 

which the ASHRAE Standard 

Committee has established a 

documented program for regular 

publication of addenda or revisions, 

including procedures for timely, 

documented, consensus action on 

requests for change to any part of the 

standard. The ANSI approves addenda 

prior to their publication by ASHRAE 

and IESNA and therefore prior to their 

inclusion in a new version of Standard 

90.1. ANSI approved the final 

addendum for inclusion in Standard 

90.1–2007 on December 18, 2007. The 

2007 edition was published in 

December 2007. 

2. Preliminary Determination 

DOE published in the Federal 

Register a Notice of Preliminary 

Determination for Standard 90.1–2007 

that the 2007 edition would achieve 

greater energy efficiency in buildings 

subject to the code, than the 2004 

edition. 75 FR 54117, September 30, 

2010. In arriving at a final 

determination, the DOE first reviewed 

all significant changes between the 2004 

edition and the 2007 edition of Standard 

90.1. Standard 90.1 is complex and 

covers a broad spectrum of the energy 

related components and systems in 

buildings ranging from simple storage 

buildings to complex hospitals and 

laboratories. 

The size of buildings addressed range 

from those smaller than single family 

homes to the largest buildings in the 

world. The approach to development of 

the standard used in the 2007 edition 

was not changed from that used for the 

2004 edition, with no changes to the 

scope or the way components are 

defined. DOE determined that because 

no significant changes were made to the 

structure, scope, or component 

definitions of Standard 90.1–2004, a 

similar methodology used for the 

analysis of Standard 90.1–2004 could be 

utilized for the analysis of Standard 

90.1–2007, consisting of a qualitative 

comparison of the textual changes to 

requirements in Standard 90.1–2007 

from Standard 90.1–2004, and a 

quantitative estimate of the energy 

savings developed from whole building 

simulations of a standard set of 

buildings constructed to both Standards 

over a range of U.S. climates. DOE chose 

to modify several details of how the 

quantitative analysis would be done, 

including changes in the simulation tool 

used, the building models, and the 

procedure and data for weighting of 

results by building type and climate. A 

detailed discussion of the analysis 

methodology, which was subject to 

public comment in 2009, can be found 

in the Notice of Preliminary 

Determination for Standard 90.1–2007. 

75 FR 54117 (Sept. 30, 2010) 

3. Public Comments Regarding the 

Preliminary Determination 

DOE accepted public comments on 

the preliminary determination for 

Standard 90.1–2007 until October 4, 

2010. DOE received submissions from a 

total of five different entities. 


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The Responsible Energy Codes 

Alliance (RECA) submitted a written 

comment (Docket No. EERE–2006–BC– 

0132–0004.1, pgs. 2–4) stating that it 

strongly supports the Department’s 

determination that the 2007 edition of 

ASHRAE Standard 90.1 would achieve 

greater energy efficiency in buildings 

than the 2004 edition. RECA also 

commented that the Department should 

follow up individually with each State 

to ensure that States are complying with 

their obligations under federal law and 

that the Department should make the 

certification letters that States submit 

available on the Department’s Web site, 

along with any additional materials 

provided by the Department to support 

state compliance. RECA went on to 

comment that the Department’s decision 

to publish a Notice of Preliminary 

Determination rather than a Notice of 

Determination is unnecessary to comply 

with the Energy Policy Act and that 

adding an extra level of administrative 

procedure is likely to further delay 

determinations on future editions of the 

model energy codes. Lastly, RECA 

commented that the Secretary of Energy 

should carefully consider the magnitude 

of each addendum approved for 

ASHRAE 90.1 in between publications 

and exercise statutory discretion to 

issue determinations any time the code 

would be significantly improved. 

In response to RECA’s comment 

concerning following up with the States 

in their certification efforts, DOE notes 

that under section 304(d) and (e) of 

ECPA DOE provides technical 

assistance and funding to States to 

implement the requirements of Section 

304, and to improve and implement 

State commercial building energy 

efficiency codes, including increasing 

and verifying compliance with such 

codes. As certification letters are 

received from the States, they will be 

made public on the Department’s Web 

site at http://www.energycodes.gov/ 

states/. The certification letters will also 

be forwarded to the State Energy 

Program for their consideration. DOE 

further notes that a listing of those 

States that have submitted certification 

letters from their respective governors 

under the requirements of the American 

Recovery and Reinvestment Act is 

available at http://www.energy.gov/ 

InYourState.htm. The letters can be 

found on each State’s Web site under 

Recovery Act activity. 

With regard to issuing a preliminary 

determination, the Department believes 

that there is value in providing an 

opportunity for public comment on its 

analysis, particularly given that a 

positive determination could potentially 

impact States. Lastly, DOE interprets the 

language in Section 304(b)(2) of ECPA to 

mean that when a comprehensive 

revision of the ASHRAE Standard is 

published (which in this case is 

ASHRAE Standard 90.1–2007), then that 

revised or successor standard triggers 

the Secretary’s obligation to issue a 

determination as to whether the revised 

standard improves energy efficiency. 

While the addenda process is part of the 

ongoing maintenance of the standard 

and thus continually modifies or revises 

existing standard over time, it would be 

an unreasonable reading of the statute to 

categorize each addenda in this 

maintenance process as a ‘‘revised or 

successor standard’’ within the meaning 

of Section 304(b)(2) of ECPA, so as to 

require a determination by the 

Secretary. Such an interpretation of the 

statute would put an unreasonable 

burden both on the States and DOE. For 

the States, a determination by the 

Secretary requires some State action, 

and what is required depends upon 

whether the Secretary issues an 

affirmative or a negative determination. 

If the Secretary were to issue a 

determination after each addenda was 

published, the States would be 

constantly required to change their 

codes. This would affect the stability 

and certainty of State commercial 

building codes. 

The American Chemistry Council 

(ACC) submitted a written comment 

(Docket No. EERE–2006–BC–0132– 

0005.1, pg. 1) stating that it strongly 

supports the Department’s 

determination that the 2007 edition of 

ASHRAE Standard 90.1 would achieve 

greater energy efficiency in buildings 

than the 2004 edition. 

The Edison Electric Institute (EEI) 

submitted a written comment (Docket 

No. EERE–2006–BC–0132–0002.1, pgs. 

2–3) supporting the preliminary 

determination with a suggested 

modification to the estimated source 

energy savings. EEI has one concern 

about the analysis from the Federal 

Register notice, and that is the 

statement: ‘‘To estimate primary energy, 

all electrical energy use intensities were 

first converted to primary energy using 

a factor of 10,800 Btus primary energy 

per kWh’’ and ‘‘Natural Gas EUI’s in the 

prototypes were converted to primary 

energy using a factor of 1.089 Btus 

primary energy per Btu of site natural 

gas energy use’’. EEI stated that the 

electricity estimate value of 10,800 is 

overstated as EIA ‘‘assigns’’ a heat rate 

to all renewable electricity generation, 

which accounted for over 10.4% of U.S. 

generation in 2009. This type of 

‘‘accounting’’ overstates the primary 

energy usage from electricity by a 

significant amount (over 10.4%). EEI 

also stated concerns over the natural gas 

estimate value appearing to only 

estimate upstream energy losses for 

domestic land-based gas drilling 

activities, while ignoring the losses 

associated with the importation of 

liquefied natural gas (LNG), increased 

energy associated with deepwater 

offshore drilling, increased energy and 

other energy losses associated with the 

hydraulic fracturing process (energy 

used to move and heat water, energy 

used to move and pump sand, and the 

energy used to produce and mix all of 

the chemicals used in the process), and 

energy losses from the flaring of natural 

gas due to imports of imported 

petroleum products. 

EEI further stated that there is no 

agreement among entities that have 

performed recent analyses as to what 

the correct upstream multipliers should 

be and that a review of these documents 

shows significant differences in the 

estimates. EEI stated that since there is 

no agreement among different parties as 

to what the appropriate multipliers are, 

with all of the variability in 

assumptions, that DOE publish its 

determination on the basis of site energy 

analytics, which can be measured and 

verified with real world data that has 

much lower uncertainty and error 

ranges. 

The Department has chosen to be 

consistent within their energy analyses 

by using Energy Information 

Administration’s (EIA) conversion 

factors solely and by choosing not to 

mix and match conversion factors. DOE 

recognizes that these conversion factors 

are estimates and not true conversion 

factors due to some types of utility 

energy inputs not having known 

conversion factors and other inputs 

having multiple generally accepted 

conversion factors. See a more detailed 

discussion at http://www.eia.doe.gov/ 

emeu/mecs/mecs94/ei/elec.html. That 

said, DOE still believes that despite the 

fact that these are estimates, the source 

energy analysis is important to the 

discussion of global resources and 

environmental issues. It should also be 

noted that the site energy savings are 

provided in the determination. 

Ultimately the focus of this 

determination is on estimating whether 

the adoption of the revised standard as 

the basis of State building codes would 

result in energy savings as compared to 

the previous version. 

The Building Codes Assistance 

Project (BCAP) submitted a written 

comment (Docket No. EERE–2006–BC– 

0132–0003.1, pgs. 1–2) supporting the 

DOE’s determination and suggests that 

DOE follow up with the States after 

publication of the Final Determination 


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43290 Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Notices 

as well as making public which States 

comply with the statutory requirements 

to submit certification letters within two 

years of publication. As stated above in 

response to RECA’s comments, DOE 

intends to make public the certification 

letters received from States, and under 

section 304(e) of ECPA DOE provides 

funding and technical assistance to 

States to implement the requirements of 

Section 304, and to improve and 

implement State residential and 

commercial building energy efficiency 

codes, including increasing and 

verifying compliance with such codes. 

The Natural Resources Defense 

Council (NRDC) submitted a written 

comment (Docket No. EERE–2006–BC– 

0132–0006.1, pgs. 2–4) stating the 

following three issues: (1) They urge 

DOE to use this opportunity to clarify 

States’ commitments with regards to 

updating and implementing their 

building energy codes; (2) clarify the 

limits of preemption under section 327 

of the Energy Policy and Conservation 

Act (EPCA) (42 U.S.C. 6297); and (3) 

revise the energy efficiency standards 

for Federal buildings to reflect the most 

recent model energy codes. In regards to 

NRDC’s first comment see response to 

RECA’s comments above. In addition, 

Section III below describes the process 

for States to file certification statements 

with DOE. 

NRDC’s second comment is in 

reference to the preemption 

requirements applicable to the Federal 

energy efficiency standards for 

appliances. Essentially, section 307(f) of 

ECPA limits the ability of State and 

local building codes to require 

minimum energy efficiency levels of 

covered appliances. (See, 42 U.S.C. 

6297(e)) It is important to note that 

today’s final determination does not 

require States to adopt a specific 

building code. Today’s final 

determination requires a State to review 

and update as necessary the provisions 

of its commercial building code 

regarding energy efficiency to ensure 

that the State’s code provisions meet or 

exceed the energy efficiency 

requirements of Standard 90.1–2007. (42 

U.S.C. 6833(b)(2)(B)(i)) Section 304 of 

ECPA does not prescribe how State code 

provisions must achieve the required 

energy efficiencies. Given that this final 

determination does not require States to 

adopt a specific method for achieving 

energy efficiency levels of covered 

appliances but rather it allows for States 

to adopt building codes that meet or 

exceed the energy efficiency 

requirements of Standard 90.1–2007. As 

such, there is no potential conflict 

between the State code provisions of 

ECPA and the preemption language in 

EPCA. 

In response to NRDC’s final comment, 

DOE intends to update the baseline 

standards for Federal buildings that 

reference Standard 90.1 following the 

issuance of this final determination for 

Standard 90.1–2007. 

II. Summary of the Comparative 

Analysis 

DOE’s preliminary qualitative 

analysis was not revised from the 

preliminary determination for Standard 

90.1–2007. DOE considers the 

preliminary qualitative analysis to be 

final and in support of this final 

determination for Standard 90.1–2007. 

The preliminary quantitative analysis 

was revised to reflect updated energy 

cost values based on EIA statistics for 

2010. Both analyses can be found at 

http://www.energycodes.gov/status/ 

determinations_com.stm, [Docket No. 

EERE–2006–BC–0132]. 

A. Qualitative Analysis 

1. Discussion of Detailed Textual 

Analysis 

DOE performed a detailed analysis of 

the differences between the textual 

requirements and stringencies of the 

two editions of Standard 90.1 in the 

scope of the standard, the building 

envelope requirements, the building 

lighting and power requirements, and 

the building mechanical equipment 

requirements. 

The emphasis of the detailed 

requirement and stringency analysis 

was on looking at the specific changes 

that ASHRAE made in going from 

Standard 90.1–2004 to Standard 90.1– 

2007. ASHRAE publishes changes to 

their standards as addenda to the 

preceding standard and then bundles all 

the addenda together to form the next 

edition. ASHRAE processed 44 addenda 

to Standard 90.1–2004 to create 

Standard 90.1–2007. Each of these 

addenda was evaluated by DOE in 

preparing this determination. 

In addition, each standard has 

multiple ways to demonstrate 

compliance, including a prescriptive set 

of requirements by section of the 

standard, various tradeoff approaches 

within those same sections, and a whole 

building performance method (Energy 

Cost Budget; ‘‘ECB’’). For each 

addendum we identified whether it 

applies to the prescriptive requirements, 

or one of the tradeoff paths provided for 

in the envelope, lighting, or mechanical 

sections, or the ECB whole building 

performance path. For each addendum 

DOE identified the impact on the 

stringency for that path to compliance. 

DOE’s review and evaluation 

indicates that there are significant 

differences between the 2004 edition 

and the 2007 edition. DOE’s overall 

conclusion is that the 2007 edition will 

improve the energy efficiency of 

commercial buildings. 

However, DOE identified two changes 

in textual requirements that taken alone 

appear to represent a reduction in 

stringencies and could decrease energy 

efficiency. The two changes are: 

• Addendum p, which broadens the 

implicit definition of ‘‘visually 

impaired’’ as used in exceptions 

provided in the standard, which allow 

for lighting power to not be included in 

the calculated lighting power densities 

subject to maximum limits, and 

• Addendum av, which provides for 

an explicit shading credit allowed for 

louvered projections, where such a 

credit was not explicitly provided for in 

90.1–2004. 

DOE believes that in these cases, the 

reduction in stringency was not 

considered a major impact. For the other 

addenda, DOE determined that the 

remaining addenda either represented 

no change in stringency, or indicated a 

positive change in stringency 

corresponding to improved efficiency. 

Overall, DOE concluded the changes in 

textual requirements and stringencies 

are ‘‘positive,’’ in the sense that they 

would improve energy efficiency in 

commercial construction. 

2. Results of Detailed Textual Analysis 

A qualitative analysis of all addenda 

to Standard 90.1–2004 that were 

included in Standard 90.1–2004 was 

conducted. All 44 addenda processed by 

ASHRAE in the creation of Standard 

90.1–2007 from Standard 90.1–2004 

were evaluated by DOE for their impact 

on energy efficiency. DOE determined 

whether that addenda would have a 

positive, neutral, or negative impact on 

overall building efficiency. Table-1 

shows the potential number of positive 

and negative changes for each section of 

Standard 90.1. 

The results of the textual analysis 

indicate that the majority of changes (30 

of the total of 44 listed) were neutral. 

These include editorial changes, 

changes to reference standards, changes 

to alternative compliance paths, and 

other changes to the text of the standard 

that may improve the usability of the 

standard, but do not generally improve 

or degrade the energy efficiency of 

building. There were 11 changes that 

were evaluated as having a positive 

impact on energy efficiency and 2 

changes that were evaluated as having a 

negative impact on energy efficiency. 


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Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Notices 43291 

The 2 negative impacts on energy 

efficiency include: 

1. Addendum p—Expanded lighting 

power exceptions allowed for use with 

the visually impaired; and 

2. Addendum av—Allowance for 

louvered overhangs. 

The 11 positive impacts on energy 

efficiency include: 

1. Addendum c—Increased 

requirement for building vestibules; 

2. Addendum h—Removal of data 

processing centers from exceptions to 

HVAC requirements; 

3. Addendum q—Removal of hotel 

room exceptions to HVAC requirements; 

4. Addendum v—Modification of 

demand controlled ventilation 

requirements; 

5. Addendum ac—Modification of fan 

power limitations; 

6. Addendum ai—Modification of 

retail display lighting requirements; 

7. Addendum ak—Modification of 

cooling tower testing requirements; 

8. Addendum an—Modification of 

commercial boiler requirements; 

9. Addendum ar—Modification of 

part load fan requirements; 

10. Addendum as—Modification of 

opaque envelope requirements; and 

11. Addendum at—Modification of 

fenestration envelope requirements. 

The results of the textual analysis are 

shown in Table 1. Overall, the potential 

positive impacts outweigh the potential 

negative impacts in a simple numerical 

comparison. 

TABLE 1—RESULTS OF TEXTUAL ANALYSIS BY SECTION OF STANDARD 90.1 

Section of standard 

Number of 

changes made 

to section 

Number of 

positive (energy saving) 

changes 

Number of 

unquantifiable 

changes 

Number of 

neutral (no energy saving) 

changes 

Number of 

negative (energy increasing) changes 

Title, Purpose, and Scope ................................................... 0 0 0 0 0 

Definitions ............................................................................ 0 0 0 0 0 

Administration and Enforcement .......................................... 0 0 0 0 0 

Envelope and Normative Appendices ................................. 11 3 0 7 1 

HVAC Equipment and Systems ........................................... 13 6 0 7 0 

Service Water Heating ......................................................... 0 0 0 0 0 

Power ................................................................................... 0 0 0 0 0 

Lighting ................................................................................. 9 2 1 5 1 

Energy Cost Budget and Appendix G Performance Rating 

Method .............................................................................. 7 0 0 7 0 

Normative and Informative References ............................... 4 0 0 4 0 

Overall ........................................................................... 44 11 1 30 2 

B. Quantitative Analysis 

1. Discussion of Whole Building Energy 

Analysis 

The quantitative comparison of 

ASHRAE Standard 90.1–2007 was 

carried out using whole-building energy 

simulations of buildings built to both 

ASHRAE Standard 90.1–2004 and 

ASHRAE Standard 90.1–2007. DOE 

used the EnergyPlus whole building 

simulation tool to simulate 15 

representative building types in 15 U.S. 

climate locations, each climate location 

selected to be representative of one of 

the 15 U.S climate zones used in the 

definition of building energy code 

criteria in ASHRAE Standard 90.1–2004 

and Standard 90.1–2007. The 

simulations were developed using 

specific building prototypes based on 

the DOE commercial reference building 

models developed for DOE’s Net-Zero 

Energy Commercial Building Initiative. 

For each building prototype simulated 

in each climate the energy use 

intensities (EUI) by fuel type and by 

end-use were extracted. These EUIs by 

fuel type for each building were then 

weighted to national average EUI figures 

using weighting factors based on the 

relative square footage of construction 

represented by that prototype in each of 

the 15 climate regions. These weighting 

factors were based on commercial 

building construction starts data for a 

five-year period from 2003 to 2007. The 

source of data was the McGraw-Hill 

Construction Projects Starts Database 

(MHC). The MHC database captures 

over 90% of new commercial 

construction in any given year and the 

collection process is independently 

monitored to ensure the coverage of 

most of the commercial construction in 

the U.S. The data is used by other 

federal agencies such as the U.S. Census 

Bureau, the Federal Reserve and the 

U.S. Department of Health and Human 

Services (HHS) for characterizing 

building construction in the U.S. For the 

purpose of developing construction 

weighting factors, the strength of this 

data lies in the number of samples, the 

characterization of each sample in terms 

of building end-use and size and 

number of stories, the frequency of data 

collection, and the detailed location 

data. In addition, the MHC database can 

be used to identify multifamily 

residential buildings that would be 

covered under ASHRAE Standard 90.1. 

DOE’s prototypes reflect the use of 

two fuel types, electricity and natural 

gas. Using the weighting factors, DOE 

was able to establish an estimate of the 

relative reduction in building energy 

use, as determined by a calculated 

reduction in weighted average site EUI 

for each building prototype. Site energy 

refers to the energy consumed at the 

building site. In a corresponding 

fashion, DOE was also able to calculate 

a reduction in terms of weighted average 

primary EUI and in terms of weighted 

average energy cost intensity (ECI) in 

$/sq. ft. of building floorspace. Primary 

energy as used here refers to the energy 

required to generate and deliver energy 

to the site. To estimate primary energy, 

all electrical energy use intensities were 

first converted to primary energy using 

a factor of 10,918 Btus primary energy 

per kWh (based on the 2010 estimated 

values reported in Table 2 of the EIA 

Annual Energy Outlook, release date 

December 2009, available at http:// 

www.eia.doe.gov/oiaf/archive/aeo10/ 

aeoref_tab.html). The conversion factor 

of 10,918 was calculated from Table 2 

by summing the commercial electricity 

value of 4.62 quads with the electricity 

losses value of 10.17 quads and then 

dividing that sum by the commercial 

value. ((4.62 + 10.17)/4.62 = 3.2) This 

yields an electricity ratio of 3.2 for 

converting how much primary (source) 

electricity is required per unit of site 

required electricity. This ratio of 3.2 is 

then multiplied by 3,412 Btu per kWh, 

producing a value of 10,918 Btus 

primary energy per kWh of site energy. 


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Natural Gas EUIs in the prototypes were 

converted to primary energy using a 

factor of 1.090 Btus primary energy per 

Btu of site natural gas use (based on the 

2010 national energy use estimated 

shown in Table 2 of the AEO 2010). 

This natural gas source energy 

conversion factor was calculated by 

dividing the natural gas subtotal of 

23.15 quads (sum of all natural gas 

usage, including usage for natural gas 

field production, leases, plant fuel, and 

pipeline (compression) supply) by the 

delivered natural gas total of 21.23 

quads (sum of four primary energy 

sectors (residential, commercial, 

industrial, and transportation). 

a. Calculation of Energy Cost Index 

To estimate the reduction in energy 

cost index, DOE relied on national 

average commercial building energy 

prices of $0.1027/kWh of electricity and 

$10.06 per 1000 cubic feet ($0.9796/ 

therm) of natural gas, based on EIA 

statistics for 2010 (the last complete 

year of data available in Table 5.3 

Average Retail Price of Electricity to 

Ultimate Consumers: Total by End-Use 

Sector for the commercial sector— 

available from EIA at http:// 

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

table5_3.html and for 2009 (the last 

complete year of data available from the 

EIA Natural Gas Annual Summary for 

the commercial sector available at 

http://tonto.eia.doe.gov/dnav/ng/ 

ng_pri_sum_dcu_nus_a.htm.) DOE 

recognizes that actual fuel costs will 

vary somewhat by building type within 

a region, and will in fact vary more 

across regions. Nevertheless, DOE 

believes that the use of simple national 

average figures illustrates whether there 

will be energy cost savings sufficient for 

the purposes of the DOE determination. 

b. Calculation of Energy Use Intensities 

Energy use intensities developed for 

each representative building type were 

weighted by total national square 

footage of each representative building 

type to provide an estimate of the 

difference between the national energy 

use in buildings constructed to both 

editions of the Standard 90.1. Note that 

the 15 buildings types used in the 

determination reflect approximately 

80% of the total square footage of 

commercial construction including 

multi-family buildings greater than 

three stories covered under ASHRAE 

Standard 90.1. 

Note that only differences between 

new building requirements were 

considered in this quantitative analysis. 

Changes to requirements in the 2007 

edition that pertain to existing buildings 

only are addressed in the detailed 

textual analysis only. 

c. Application to Additions and 

Renovations 

Both the 2007 and 2004 editions 

address additions and renovations to 

existing buildings. Since DOE has found 

insufficient data to characterize 

renovations in terms of what energy 

using features are utilized, DOE has not 

determined that the results obtained 

from the whole building prototypes 

used would reasonably reflect the EUI 

benefits that would accrue to renovated 

floor space. For this reason, renovated 

floor space is not included in the DOE 

weighting factors. Building additions on 

the other hand are believed to be 

substantially equivalent to new 

construction. For this reason, FW Dodge 

construction data on additions has been 

incorporated into the overall weighting 

factors. Floor space additions reflect 

approximately 13 percent of new 

construction floor space based on data 

captured in the FW Dodge dataset. 

d. Ventilation Rate Assumptions 

The quantitative analysis assumed the 

same base ventilation level for buildings 

constructed to Standard 90.1–2004 and 

Standard 90.1–2007. Neither edition of 

Standard 90.1 specifies ventilation rates 

for commercial building construction. 

ASHRAE has a separate ventilation 

standard for commercial construction, 

ASHRAE Standard 62.1 Ventilation for 

Acceptable Indoor Air Quality. This 

standard is cited only in a few 

exceptions within the mechanical 

sections of either ASHRAE 90.1–2004 or 

ASHRAE 90.1–2007, with each edition 

referencing a different version of 

standard 62.1. ASHRAE 90.1–2004 lists 

ASHRAE 62.1–1999 in its table of 

references. ASHRAE 90.1–2007 lists 

ASHRAE 62.1–2004 in its table of 

references. The latest version of 

ASHRAE Standard 62 is Standard 62.1– 

2007. 

Ventilation rates can have significant 

impact on the energy use of commercial 

buildings. States and local jurisdictions 

typically specify the ventilation 

requirements for buildings within their 

respective building codes and can set 

these requirements independent of the 

energy code requirements. Because of 

the limited reference to ventilation 

within either the 2004 or the 2007 

edition of ASHRAE 90.1, the 

requirements that States certify that 

their energy codes meet or exceed the 

2007 edition of ASHRAE 90.1 would in 

general not require modification of State 

ventilation code requirements. 

However, in many cases, ventilation 

requirements can be traced back to 

requirements found in one or another 

version of ASHRAE Standard 62.1. For 

the purpose of the quantitative analysis, 

DOE assumed ventilation rate for the 

simulation prototypes based on the 

requirements ASHRAE 62.1–2004. DOE 

also performed a sensitivity analysis 

which calculated the quantitative 

impacts assuming a ventilation rate 

based on ASHRAE Standard 62.1–1999. 

2. Results of Whole Building Energy 

Analysis 

The quantitative analysis of the 

energy consumption of buildings built 

to Standard 90.1–2007, as compared 

with buildings built to Standard 90.1– 

2004, indicates national primary energy 

savings of approximately 3.9 percent of 

commercial building energy 

consumption based on the weighting 

factors for the 15 buildings simulated. 

Site energy savings are estimated to be 

approximately 4.6 percent. Using 

national average fuel prices for 

electricity and natural gas DOE 

estimated a reduction in energy 

expenditures of 3.9 percent would result 

from the use of ASHRAE Standard 90.1– 

2007 as compared to ASHRAE Standard 

90.1–2004. As identified previously, 

these estimated savings figures do not 

include energy savings from equipment 

or appliance standards that would be in 

place due to Federal requirements 

regardless of their presence in the 

ASHRAE Standard 90.1–2007. 

Tables 2 and 3 show the aggregated 

energy use and associated energy 

savings by building type for the 15 

building prototypes analyzed and on an 

aggregated national basis for the 2004 

and 2007 editions, respectively. For 

each edition of Standard 90.1, the 

national building floor area weight used 

to calculate the national impact on 

building EUI or building ECI, is 

presented. The national average 

electricity and gas building energy use 

intensity is presented separately for 

each building prototype analyzed, 

electricity being the predominant energy 

usage in all prototypes. National-average 

site energy use intensities range from 

over five hundred Btu per square foot 

annually for the Fast Food prototype to 

approximately 28 Btu per square foot 

annually for the Non-refrigerated 

Warehouse type. Source energy use 

intensities and building energy cost 

intensities ($/sf-yr) are also presented. 

Further details on the quantitative 

analysis can be found in the full 

quantitative analysis report available at 

http://www.energycodes.gov/ 

implement/determinations_90.1- 

2007.stm. 


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TABLE 2—ESTIMATED ENERGY USE INTENSITY BY BUILDING TYPE—2004 EDITION

Building type Building prototype 

Building type 

floor area 

weight 

% 

Whole building EUI data for building population 

kBtu/ft2-yr 

Electric EUI Gas EUI Site EUI Source EUI ECI 

$/ft2-yr 

Office .............. Small Office ........................... 6 .16 35.6 3.6 39.2 117.8 $1.11 

Medium Office ....................... 6 .64 42.1 4.2 46.3 139.2 1.31 

Large Office ........................... 3 .65 34.4 5.7 40.1 116.2 1.09 

Retail .............. Stand-Alone Retail ................ 16 .76 56.1 15.0 71.1 195.7 1.84 

Strip Mall ............................... 6 .23 55.2 20.1 75.2 198.3 1.86 

Education ....... Primary School ...................... 5 .49 47.9 23.5 71.4 178.9 1.68 

Secondary School ................. 11 .38 43.7 19.5 63.1 160.9 1.51 

Healthcare ...... Outpatient Health Care ......... 4 .80 106.7 54.7 161.4 400.8 3.76 

Hospital .................................. 3 .79 96.3 57.6 153.9 370.9 3.48 

Lodging .......... Small Hotel ............................ 1 .89 48.3 26.1 74.3 182.8 1.71 

Large Hotel ............................ 5 .44 68.5 84.4 152.9 311.0 2.91 

Warehouse ..... Non-Refrigerated Warehouse 18 .36 14.5 10.7 25.2 58.1 0.54 

Food Service .. Fast-Food Restaurant ........... 0 .64 226.5 326.1 552.6 1080.0 10.10 

Sit-Down Restaurant ............. 0 .72 179.3 202.1 381.4 794.0 7.43 

Apartment ...... Mid-Rise Apartment ............... 8 .04 32.5 10.1 42.7 115.1 1.08 

National .......... ................................................ 100 48.1 24.2 72.3 180.3 1.69 

TABLE 3—ESTIMATED ENERGY USE INTENSITY BY BUILDING TYPE—2007 EDITION

Building type Building prototype 

Building type 

floor area 

weight 

% 

Whole building EUI data for building population 

kBtu/ft2-yr 

Electric EUI Gas EUI Site EUI Source EUI ECI 

$/ft2-yr 

Office .............. Small Office ........................... 6 .16 35.3 3.3 38.6 116.6 $1.10 

Medium Office ....................... 6 .64 40.2 4.3 44.5 133.2 1.25 

Large Office ........................... 3 .65 34.3 4.6 38.9 114.7 1.08 

Retail .............. Stand-Alone Retail ................ 16 .76 51.4 13.3 64.7 178.9 1.68 

Strip Mall ............................... 6 .23 52.3 16.9 69.2 185.8 1.74 

Education ....... Primary School ...................... 5 .49 46.7 19.9 66.6 171.1 1.61 

Secondary School ................. 11 .38 42.5 16.6 59.1 154.2 1.45 

Healthcare ...... Outpatient Health Care ......... 4 .80 102.1 52.8 154.9 384.3 3.60 

Hospital .................................. 3 .79 95.8 56.2 152.0 367.7 3.45 

Lodging .......... Small Hotel ............................ 1 .89 46.5 24.7 71.2 175.7 1.65 

Large Hotel ............................ 5 .44 69.1 79.1 148.2 307.3 2.88 

Warehouse ..... Non-Refrigerated Warehouse 18 .36 14.5 10.6 25.2 58.0 0.54 

Food Service .. Fast-Food Restaurant ........... 0 .64 222.1 319.5 541.6 1058.7 9.90 

Sit-Down Restaurant ............. 0 .72 177.5 200.0 377.6 785.9 7.35 

Apartment ...... Mid-Rise Apartment ............... 8 .04 31.8 9.0 40.8 111.7 1.05 

National .......... ................................................ 100 46.5 22.5 69.0 173.3 1.63 

Table 4 presents the estimated percent 

energy savings (based on change in EUI) 

between the 2004 and 2007 editions. 

Overall, considering those differences 

that can be reasonably quantified, the 

2007 edition is expected to increase the 

energy efficiency of commercial 

buildings. Numbers in Table 5 represent 

percent energy savings; thus, negative 

numbers represent increased energy use. 

There is a decrease in gas EUI for all 

building types except medium office. 

This decrease in gas EUI represents the 

majority of the national site energy 

savings from the 2007 edition. There is 

a decrease in electrical EUI for all 

building prototypes except for large 

hotel. 

TABLE 4—ESTIMATED PERCENT ENERGY SAVINGS WITH 2007 EDITION—BY BUILDING TYPE

Building type Building prototype 

Building type 

floor area 

weight 

% 

Percent savings in whole building energy use intensity (%) 

Electric EUI Gas EUI Site EUI Source EUI ECI 

Office .............. Small Office ........................... 6 .16 0.8 9.0 1.5 1.0 1.0 

Medium Office ....................... 6 .64 4.6 ¥2.3 3.9 4.3 4.4 

Large Office ........................... 3 .65 0.3 18.0 2.8 1.3 1.3 

Retail .............. Stand-Alone Retail ................ 16 .76 8.3 11.2 9.0 8.6 8.6 

Strip Mall ............................... 6 .23 5.2 15.6 8.0 6.3 6.3 

Education ....... Primary School ...................... 5 .49 2.5 15.4 6.8 4.4 4.3 

Secondary School ................. 11 .38 2.6 14.8 6.3 4.2 4.2 

Healthcare ...... Outpatient Health Care ......... 4 .80 4.2 3.4 4.0 4.1 4.1 

Hospital .................................. 3 .79 0.6 2.3 1.2 0.9 0.9 


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TABLE 4—ESTIMATED PERCENT ENERGY SAVINGS WITH 2007 EDITION—BY BUILDING TYPE—Continued 

Building type Building prototype 

Building type 

floor area 

weight 

% 

Percent savings in whole building energy use intensity (%) 

Electric EUI Gas EUI Site EUI Source EUI ECI 

Lodging .......... Small Hotel ............................ 1 .89 3.6 5.2 4.2 3.9 3.9 

Large Hotel ............................ 5 .44 ¥1.0 6.3 3.0 1.2 1.2 

Warehouse ..... Non-Refrigerated Warehouse 18 .36 0.0 0.7 0.3 0.2 0.2 

Food Service .. Fast Food Restaurant ........... 0 .64 1.9 2.0 2.0 2.0 2.0 

Sit-Down Restaurant ............. 0 .72 1.0 1.0 1.0 1.0 1.0 

Apartment ...... Mid-Rise Apartment ............... 8 .04 2.1 11.5 4.3 3.0 3.0 

National .......... ................................................ 100 3.4 6.9 4.6 3.9 3.9 

C. Final Determination Statement 

DOE qualitative analysis shows that 

the changes in textual requirements and 

stringencies are ‘‘positive,’’ in the sense 

that they would improve energy 

efficiency in commercial construction. 

DOE’s quantitative analysis shows 

that for the 15 prototype buildings, a 

weighted average national improvement 

in new building efficiency of 3.7 

percent, when considering source 

energy, and by 4.4 percent, when 

considering site energy. 

As both the 2004 and 2007 editions 

cover existing buildings, to the extent 

that these standards are applied to 

existing buildings in retrofits or in new 

construction addition, the 2007 edition 

should also improve the efficiency of 

the existing building stock. 

DOE has, therefore, concluded that 

Standard 90.1–2007 receive an 

affirmative determination under Section 

304(b) of the ECPA. 

III. Filing Certification Statements With 

DOE 

A. Review and Update 

Upon publication of this affirmative 

final determination, each State is 

required to review and update, as 

necessary, the provisions of its 

commercial building energy code to 

meet or exceed the provisions of the 

2007 edition of Standard 90.1. (42 

U.S.C. 6833(b)(2)(B)(i)) This action is 

required to be taken not later than two 

years from the date of publication of this 

notice of final determination, unless an 

extension is provided. 

The DOE recognizes that some States 

do not have a State commercial building 

energy code or have a State code that 

does not apply to all commercial 

buildings. If local building energy codes 

regulate commercial building design 

and construction rather than a State 

code, the State must review and make 

all reasonable efforts to update as 

authorized those local codes to 

determine whether they meet or exceed 

the 2007 edition of Standard 90.1. States 

may base their certifications on 

reasonable actions by units of general 

purpose local government. Each such 

State must still review the information 

obtained from the local governments 

and gather any additional data and 

testimony for its own certification. 

Note that the applicability of any 

State revisions to new or existing 

buildings would be governed by the 

State building codes. However, it is our 

understanding that generally, the 

revisions would not apply to existing 

buildings unless they are undergoing a 

change that requires a building permit. 

States should be aware that the DOE 

considers high-rise (greater than three 

stories) multi-family residential 

buildings, hotel, motel, and other 

transient residential building types of 

any height as commercial buildings for 

energy code purposes. Consequently, 

commercial buildings, for the purposes 

of certification, would include high-rise 

(greater than three stories) multi-family 

residential buildings, hotel, motel, and 

other transient residential building 

types of any height. 

B. Certification 

Section 304(b) of ECPA, as amended, 

requires each State to certify to the 

Secretary of Energy that it has reviewed 

and updated the provisions of its 

commercial building energy code 

regarding energy efficiency to meet or 

exceed the Standard 90.1–2007 edition. 

(42 U.S.C. 6833 (b)) The certification 

must include a demonstration that the 

provisions of the State’s commercial 

building energy code regarding energy 

efficiency meet or exceed Standard 

90.1–2007. If a State intends to certify 

that its commercial building energy 

code already meets or exceeds the 

requirements of Standard 90.1–2007, the 

State should provide an explanation of 

the basis for this certification, e.g., 

Standard 90.1–2007 is incorporated by 

reference in the State’s building code 

regulations. The chief executive of the 

State (e.g., the Governor) or a designated 

State official, such as the Director of the 

State energy office, State code 

commission, utility commission, or 

equivalent State agency having primary 

responsibility for commercial building 

energy codes, would provide the 

certification to the Secretary. Such a 

designated State official would also 

provide the certifications regarding the 

codes of units of general purpose local 

government based on information 

provided by responsible local officials. 

ECPA also requires the Secretary to 

permit extensions of the deadlines for 

the State certification if a State can 

demonstrate that it has made a good 

faith effort to comply with the 

requirements of Section 304 of ECPA 

and that it has made significant progress 

in doing so. (42 U.S.C. 6833(c)) 

DOE does list the States that have 

filed certifications and those that have 

or have not adopted new codes on the 

DOE Energy Efficiency and Renewable 

Energy Web site at http:// 

www.energycodes.gov/states/. The 

letters can also be found on each State’s 

Web site under Recovery Act activity. 

Under Section 304(d) and (3) of ECPA, 

once a State has adopted a new 

commercial code, DOE typically 

provides software, training, and support 

for the new code as long as the new 

code is based on the national model 

codes (in this case, ASHRAE Standard 

90.1). 

Some States develop their own codes 

that are only loosely related to the 

national model codes and DOE does not 

typically provide technical support for 

those codes. However, DOE does 

provide grants to these States through 

grant programs administered by the 

National Energy Technology Laboratory 

(NETL). DOE does not prescribe how 

each State adopts and enforces its 

energy codes. 

It should be noted that the 2010 

edition of Standard 90.1 has been 

published by ASHRAE, and DOE has 

prepared a preliminary determination 

on which comments will be taken. Were 

DOE to make a positive determination 

on the 2010 edition, the 2010 edition 

would supersede the 2007 edition. If the 

2010 edition of the Standard 90.1 is 

finalized before the 2 year deadline to 


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file a certification for the 2007 positive 

determination then a state may file just 

one certification to address both 

determinations. 

C. Request for Extensions To Certify 

Section 304(c) of ECPA requires that 

the Secretary permit an extension of the 

deadline for complying with the 

certification requirements described 

above, if a State can demonstrate that it 

has made a good faith effort to comply 

with such requirements and that it has 

made significant progress toward 

meeting its certification obligations. (42 

U.S.C. 6833(c)) Such demonstrations 

could include one or both of the 

following: (1) A plan for response to the 

requirements stated in section 304; 

and/or (2) a statement that the State has 

appropriated or requested funds (within 

State funding procedures) to implement 

a plan that would respond to the 

requirements of Section 304 of ECPA. 

This list is not exhaustive. 

IV. Regulatory Analysis 

A. Review Under Executive Order 12866 

Today’s action is a significant 

regulatory action under section 3(f)(1) of 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ (58 FR 51735 

(Oct. 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 the 

preparation of an initial regulatory 

flexibility analysis for any rule that by 

law must be proposed for public 

comment, unless the agency certifies 

that the rule, if promulgated, will not 

have a significant economic impact on 

a substantial number of small entities. 

As required by Executive Order 13272, 

‘‘Proper Consideration of Small Entities 

in Agency Rulemaking,’’ (67 FR 53461 

(Aug. 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 final 

determination under the provisions of 

the Regulatory Flexibility Act and the 

procedures and policies published on 

February 19, 2003. Today’s final 

determination of improved energy 

efficiency between the ASHRAE 2004 

and 2007 of Standard 90.1 requires 

States to undertake an analysis of their 

respective building codes and to update 

codes, if necessary. As such, the only 

entities directly regulated by this final 

determination would be States. DOE 

does not believe that there will be any 

direct impacts on small entities such as 

small businesses, small organizations, or 

small governmental jurisdictions. 

On the basis of the foregoing, DOE 

certifies that this final determination 

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 final determination. 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 National 

Environmental Policy Act of 1969 

DOE has determined that today’s 

action is covered under the Categorical 

Exclusion found in DOE’s National 

Environmental Policy Act regulations at 

paragraph A.6. of Appendix A to 

subpart D, 10 CFR Part 1021. That 

Categorical Exclusion applies to actions 

that are strictly procedural, such as 

rulemaking establishing the 

administration of grants. Today’s action 

is required by Title III of ECPA, as 

amended, which provides that 

whenever the Standard 90.1–1989, or 

any successor to that code, is revised, 

the Secretary must make a 

determination, not later than 12 months 

after such revision, whether the revised 

code would improve energy efficiency 

in commercial buildings and must 

publish notice of such determination in 

the Federal Register. (42 U.S.C. 

6833(b)(2)(A)) If the Secretary 

determines that the revision of Standard 

90.1–1989 or any successor thereof, 

improves the level of energy efficiency 

in commercial buildings then no later 

than two years after the date of the 

publication of such affirmative 

determination, ECPA requires each State 

to certify that it has reviewed and 

updated the provisions of its 

commercial building code regarding 

energy efficiency with respect to the 

revised or successor code. (42 U.S.C. 

6833(b)(2)(B)(i)) If the Secretary makes a 

determination that the revised standard 

will not improve energy efficiency in 

commercial buildings then State 

commercial codes shall meet or exceed 

the last revised standard for which the 

Secretary has made a positive 

determination. (42 U.S.C. 

6833(b)(2)(B)(ii)) Therefore, DOE has 

determined that the Secretary’s 

determination is not a major federal 

action that would have direct 

environmental impacts. Accordingly, 

DOE has not prepared an environmental 

assessment or an environmental impact 

statement. 

D. Review Under Executive Order 

13132, ‘‘Federalism’’ 

Executive Order 13132, 64 FR 43255 

(Aug. 4, 1999), imposes certain 

requirements on agencies formulating 

and implementing policies or 

regulations that pre-empt State law or 

that have federalism implications. 

Agencies are required 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 reviewed the statutory 

authority. Congress found that: 

(1) Large amounts of fuel and energy 

are consumed unnecessarily each year 

in heating, cooling, ventilating, and 

providing domestic hot water for newly 

constructed residential and commercial 

buildings because such buildings lack 

adequate energy conservation features; 

(2) Federal voluntary performance 

standards for newly constructed 

buildings can prevent such waste of 

energy, which the Nation can no longer 

afford in view of its current and 

anticipated energy shortage; 

(3) The failure to provide adequate 

energy conservation measures in newly 

constructed buildings increases longterm operating costs that may affect 

adversely the repayment of, and security 

for, loans made, insured, or guaranteed 

by Federal agencies or made by 

federally insured or regulated 

instrumentalities; and 

(4) State and local building codes or 

similar controls can provide an existing 

means by which to assure, in 

coordination with other building 

requirements and with a minimum of 

Federal interference in State and local 

transactions, that newly constructed 

buildings contain adequate energy 

conservation features. (42 U.S.C. 6831) 

Pursuant to Section 304(b) of ECPA, 

DOE is statutorily required to determine 

whether the most recent versions of 

ASHRAE 90.1 would improve the level 

of energy efficiency in commercial 

buildings as compared to the previous 

version. If DOE makes a positive 

determination, the statute requires each 

State to certify that it has reviewed and 

updated the provisions of its 

commercial building code regarding 

energy efficiency with respect to the 

revised or successor codes. (42 U.S.C. 

6833(b)(2)(B)(i)) 


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Executive Order 13132, 64 FR 43255 

(Aug. 4, 1999) requires meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications unless ‘‘funds necessary to 

pay the direct costs incurred by the 

State and local governments in 

complying with the regulation are 

provided by the Federal Government.’’ 

(62 FR 43257) Pursuant to Section 

304(e) of ECPA, the Secretary is 

required to ‘‘provide incentive funding 

to States to implement the requirements 

of [Section 304], and to improve and 

implement State residential and 

commercial building energy efficiency 

codes, including increasing and 

verifying compliance with such codes. 

In determining whether, and in what 

amount, to provide incentive funding 

under this subsection, the Secretary 

shall consider the actions proposed by 

the State to implement the requirements 

of this section, to improve and 

implement residential and commercial 

building energy efficiency codes, and to 

promote building energy efficiency 

through the use of such codes.’’ (42 

U.S.C. 6833(e)) Therefore, consultation 

with States and local officials regarding 

this determination was not required. 

However, DOE notes that State and 

local governments were invited to 

participate in the development Standard 

90.1–2007. Standard 90.1–2007, was 

developed in a national American 

National Standards Institute consensus 

process open to the public and in which 

State and local governments participate 

along with DOE and other interested 

parties. It is the product of a series of 

amendments to the prior addition of the 

standard. Each addendum is put out for 

national public review. Anyone may 

submit comments, and in the process 

comments were received from State and 

local governments. Comments on the 

addendum are received, reviewed and 

resolved through a consensus process. 

Members of the standards project 

committee have included 

representatives of State and local 

governments. 

DOE annually holds a national 

building energy codes workshop at 

which the progress on development of 

the model energy codes are presented, 

along with discussion and sharing of 

problems and successes in adoption, 

implementation, and enforcement of 

building energy codes. The predominate 

attendance of these workshops are State 

and local officials responsible for 

building energy codes. They are 

consistently encouraged and urged to 

participate in the model building energy 

code processes, which will be the 

subject of DOE’s next determinations 

under section 304 of ECPA. Thus, State 

and local officials have had the 

opportunity to participate in the 

development of the standard through 

the ASHRAE process. Some have done 

so. 

Similarly, the comments of States and 

local governments about provisions of 

the developing Standard 90.1–2007 

were received in formal comment 

periods and heard and addressed in 

ASHRAE committee deliberations open 

to the public. In addition, concerns and 

issues about adoption, implementation 

and enforcement issues were presented 

and discussed at informal sessions at 

the Department’s annual national 

workshops on building energy codes. 

DOE believes that the above process has 

given State and local jurisdictions 

extensive opportunity to comment on 

and express their concerns on Standard 

90.1–2007, the subject of this 

determination. 

On issuance of this determination that 

Standard 90.1–2007 would improve the 

energy efficiency of commercial 

buildings, ECPA requires the States to 

certify to the Secretary that it has 

reviewed and updated the provisions of 

its commercial building code regarding 

energy efficiency to meet or exceed the 

requirements of Standard 90.1–2007. 

DOE notes that ECPA sets forth this 

requirement for States. (42 U.S.C. 

6833(b)(2)(B)(i)) States are given broad 

freedom to either adopt Standard 90.1– 

2007 or develop their own code that 

meets equivalent energy efficiency. 

E. 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. 

Subsection 101(5) of Title I of that law 

defines a Federal intergovernmental 

mandate to include any regulation that 

would impose upon State, local, or 

tribal governments an enforceable duty, 

except a condition of Federal assistance 

or a duty arising from participating in a 

voluntary Federal program. Title II of 

that law requires each Federal agency to 

assess the effects of Federal regulatory 

actions on State, local, and tribal 

governments, in the aggregate, or to the 

private sector, other than to the extent 

such actions merely incorporate 

requirements specifically set forth in a 

statute. Section 202 of that title requires 

a Federal agency to perform a detailed 

assessment of the anticipated costs and 

benefits of any rule that includes a 

Federal mandate which may result in 

costs to State, local, or tribal 

governments, or to the private sector, of 

$100 million or more. Section 204 of 

that title requires each agency that 

proposes a rule containing a significant 

Federal intergovernmental mandate to 

develop an effective process for 

obtaining meaningful and timely input 

from elected officers of State, local, and 

tribal governments. 

Today’s action requires each State 

under Section 304 of ECPA to review 

and update, as necessary, the provisions 

of its commercial building energy code 

to meet or exceed the provisions of the 

2007 edition of Standard 90.1. (42 

U.S.C. 6833(b)(2)(B)(i)) The statutory 

requirements of ECPA require DOE to 

provide a determination irrespective of 

costs. While the processes that States 

may undertake to update their codes 

vary widely, as a general rule a State at 

a minimum would need to: 

• Evaluate Standard 90.1–2007 using 

the background material provided by 

DOE. 

• Compare the existing State 

commercial building energy code to 

Standard 90.1–2007 to see if an update 

is needed. 

• Update the State commercial 

building energy code to meet or exceed 

Standard 90.1–2007. 

DOE evaluated the potential for State 

activity to exceed $100 million in any 

one year. The approach looked at the 

three steps for minimum activity listed 

in the previous paragraph—evaluate, 

compare and update. A fourth potential 

step of providing training on the new 

code was also considered as some States 

may consider training on the new code 

to be an integral part of adopting the 

new code. For the three steps of 

minimum activity, DOE estimated the 

following: 

Evaluate Standard 90.1–2007—DOE 

estimated a minimum of 8 hours of 

review per State and a maximum review 

time of 500 hours of review per State 

(12.5 work weeks). The minimum 

review time of 8 hours (one day) is the 

estimated minimum amount of time can 

see States taking to review Standard 

90.1–2007. Simply reading and 

reviewing the Federal Register notice, 

the qualitative analysis document and 

the quantitative analysis document will 

take the average person several hours. 

Deciding on whether or not to upgrade 

to Standard 90.1–2007 may take another 

couple of hours. The maximum review 

time of 500 hours (62.5 day, 3 working 

months) upper limit was estimated as 

the amount of time that a state that was 

not familiar with energy codes at all or 

which has a particularly arduous review 

process within the state would take to 

review these documents. 

(1) A cost per hour of $100 per hour 

was assumed based on actual rates 


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proposed in subcontracts associated 

with compliance studies funded by 

DOE. The average rate calculated from 

these subcontracts for 10 types of 

building officials from 6 States was 

$93.41, so DOE chose to round this up 

to $100 per hour. 

a. Low estimate—8 hours * 50 States 

* $100 per hour = $40,000. 

b. High estimate—500 hours * 50 

States * $100 per hour = $2,500,000. 

(2) Compare Standard 90.1–2007 to 

existing state code—Assuming the State 

is familiar with its code and has 

performed an effective evaluation of 

Standard 90.1 in the first step, the range 

of potential costs should be similar to 

Step 1. (See Step 1 for discussion of 8 

hour and 500 hour times and $100 per 

hour cost estimate). 

a. Low estimate—8 hours * 50 States 

* $100 per hour = $40,000. 

b. High estimate—500 hours * 50 

States * $100 per hour = $2,500,000. 

(3) Update the State Codes to meet or 

exceed Standard 90.1–2007—Adopting 

a new energy code could be as simple 

as updating an order within the State, or 

it could be very complex involving 

hearings, testimony, etc. Again, the 

range of potential costs should be 

similar to Step 1. (See Step 1 for 

discussion of origin of 8 hour and 500 

hour times and $100 per hour cost 

estimate). 

a. Low estimate—8 hours * 50 States 

* $100 per hour = $40,000. 

b. High estimate—500 hours * 50 

States * $100 per hour = $2,500,000. 

The potential range of total costs to 

States to under these assumptions 

would be $120,000 to $7.5 million. This 

range is well below the $100 million 

threshold in the Unfunded Mandates 

Act. DOE has also considered potential 

costs were States to include providing 

training on the new code. 

(4) Train Code officials on New 

Code—Assuming every jurisdiction has 

at least one person that needs to be 

trained on energy code. There are 

roughly 40,000 general purpose local 

governments, or jurisdictions, in the 

U.S. The total number of jurisdictions in 

the U.S. that enforce energy codes is not 

known with any degree of certainty. The 

National League of Cities publishes an 

estimate of the number of local 

governments in the U.S. at http:// 

www.nlc.org/about_cities/cities_101/ 

142.aspx. Their summary indicates the 

following: 

• 19,429 Municipal governments; 

• 16,504 Town or Township 

governments; 

• 3,034 County governments; 

• 13,506 School districts; and 

• 35,052 Special district 

governments. 

DOE believes it is reasonable to 

assume that all of the municipal 

governments, town or township 

governments, and county governments 

could be required to acquire training on 

Standard 90.1–2007 in order to enforce 

this standard as an adopted energy code. 

In addition, the 50 state governments 

would be required to acquire training. 

This number adds up to 

19,429+16,504+3,034+50 = 38,667. 

Another widely mentioned estimate of 

the total number of code adopting 

jurisdictions in the U.S. is 44,000. This 

number is based on the National 

Conference of States on Building Codes 

and Standards (NCBCS). See, for 

example, http://www.ncsbcs.org/ 

newsite/New%20Releases/ 

RW_Presentation_060602.htm. Both 

these estimates are in reasonable 

agreement and so DOE assumed that 

there are 40,000 potential jurisdictions 

that potentially would need training on 

a new energy code. This number is 

likely to be on the extreme high end of 

possible values. DOE believes there are 

approximately 38,000 to 44,000 

jurisdictions that could adopt energy 

codes. Many of those jurisdictions do 

not adopt energy codes and many of 

those jurisdictions have already adopted 

Standard 90.1–2007 or the 2009 IECC as 

evidenced by the BECP maps that show 

14 States have already adopted 90.1– 

2007 or the equivalent. DOE believes 

that 40,000 is very much on the high 

side of the estimate for jurisdictions that 

may need training on Standard 90.1– 

2007, but in the absence of a lower 

defensible value, DOE has chosen to use 

this higher conservative number. 

Based on training experiences of the 

Building Energy Codes Program staff, 

with conducting training sessions for 

jurisdictional staff regarding Standard 

90.1, one full-day (8 hours) of training 

is normally sufficient. Therefore we 

have used 8 hours as a low estimate and 

16 hours as a high estimate for training 

hours required if a jurisdiction were to 

adopt Standard 90.1–2007. 

a. Low estimate—8 hours * 40,000 

jurisdictions * $100 per hour = 

$32,000,000. 

b. High Estimate—16 hours * 40,000 

jurisdictions * $100 per hour = 

$64,000,000. 

Adding the potential training costs of 

$32 million to $64 million to the costs 

for the 3 steps indicates a potential total 

costs ranging from $32.12 million to 

$71.5 million. The high end of this 

estimate is less than the $100 million 

threshold in the Unfunded Mandates 

Act. Accordingly, no further action is 

required under the Unfunded Mandates 

Reform Act of 1995. 

F. Review Under the Treasury and 

General Government Appropriations 

Act of 1999 

Section 654 of the Treasury and 

General Government Appropriations 

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

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. 

Today’s action 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. 

G. Review Under the Treasury and 

General Government Appropriations 

Act of 2001 

Section 515 of the Treasury and 

General Government Appropriations 

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

provides for agencies to review most 

disseminations of information to the 

public under guidelines established by 

each agency pursuant to general 

guidelines issued by OMB. OMB’s 

guidelines were published at 67 FR 

8452 (Feb. 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (Oct. 7, 2002). DOE has reviewed 

today’s action under the OMB and DOE 

guidelines and has concluded that it is 

consistent with applicable policies in 

those guidelines. 

H. 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 the 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 

the Office of Information and Regulatory 

Affairs (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 action would not have a 

significant adverse effect on the supply, 

distribution, or use of energy and is 


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43298 Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Notices 

therefore not a significant energy action. 

Accordingly, DOE has not prepared a 

Statement of Energy Effects. 

I. Review Under Executive Order 13175 

Executive Order 13175. ‘‘Consultation 

and Coordination with Indian tribal 

Governments’’ (65 FR 67249 (Nov. 9, 

2000)), requires DOE to develop an 

accountable process to ensure 

‘‘meaningful and timely input by tribal 

officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ refers to regulations that 

have ‘‘substantial direct effects on one 

or more Indian tribes, on the 

relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes.’’ Today’s 

regulatory action is not a policy that has 

‘‘tribal implications’’ under Executive 

Order 13175. DOE has reviewed today’s 

action under Executive Order 13175 and 

has determined that it is consistent with 

applicable policies of that Executive 

Order. 

Issued in Washington, DC, on July 13, 

2011. 

Kathleen Hogan, 

Deputy Assistant Secretary for Energy 

Efficiency, Office of Technology 

Development, Energy Efficiency and 

Renewable Energy. 

[FR Doc. 2011–18251 Filed 7–19–11; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

[Docket No. EERE–2006–BC–0132] 

RIN 1904–AC42 

Building Energy Standards Program: 

Preliminary Determination Regarding 

Energy Efficiency Improvements in the 

Energy Standard for Buildings, Except 

Low-Rise Residential Buildings, ANSI/ 

ASHRAE/IESNA Standard 90.1–2010 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notice of preliminary 

determination. 

SUMMARY: The Department of Energy 

(DOE) has preliminarily determined that 

the 2010 edition of the Energy Standard 

for Buildings, Except Low-Rise 

Residential Buildings, American 

National Standards Institute (ANSI)/ 

American Society of Heating, 

Refrigerating and Air-Conditioning 

Engineers (ASHRAE) Illuminating 

Engineering Society of North America 

(IESNA) Standard 90.1–2010, (Standard 

90.1–2010 or the 2010 edition) would 

achieve greater energy efficiency in 

buildings subject to the code, than the 

2007 edition (Standard 90.1–2007 or the 

2007 edition). Also, DOE has 

preliminarily determined that the 

quantitative analysis of the energy 

consumption of buildings built to 

Standard 90.1–2010, as compared with 

buildings built to Standard 90.1–2007, 

indicates national source energy savings 

of approximately 18.2 percent of 

commercial building energy 

consumption. Additionally, DOE has 

preliminarily determined site energy 

savings are estimated to be 

approximately 18.5 percent. If these 

determinations are finalized, States 

would be required to certify that they 

have reviewed the provisions of their 

commercial building code regarding 

energy efficiency, and as necessary, 

updated their code to meet or exceed 

the energy efficiency of Standard 90.1– 

2010. Additionally, this notice provides 

guidance to States on Certifications, and 

Requests for Extensions of Deadlines for 

Certification Statements, should the 

preliminary determination be adopted 

as final. 

DATES: Comments on the preliminary 

determination must be provided by 

August 19, 2011. 

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: ASHRAE90.1-2010–DET0050@ee.doe.gov. Include RIN 1904– 

AC42 in the subject line of the message. 

• Postal Mail: Michael Erbesfeld, U.S. 

Department of Energy, Office of Energy 

Efficiency and Renewable Energy, 

Forrestal Building, Mail Station EE–2J, 

1000 Independence Avenue, SW., 

Washington, DC 20585–0121, Please 

submit one signed paper original. 

• Hand Delivery/Courier: Michael 

Erbesfeld, U.S. Department of Energy, 

Building Technologies Program, Room 

6003, 1000 Independence Avenue, SW., 

Washington, DC 20585–0121. 

Instructions: All submissions must 

include the agency name, Department of 

Energy, and docket number, EERE– 

2006–BC–0132, or Regulatory 

Information Number (RIN), 1904–AC42, 

for this preliminary determination. 

FOR FURTHER INFORMATION CONTACT: 

Michael Erbesfeld, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Forrestal Building, 

Mail Station EE–2J, 1000 Independence 

Avenue, SW., Washington, DC 20585– 

0121, (202) 287–1874, e-mail: 

michael.erbesfeld@ee.doe.gov. For legal 

issues contact Mrs. Kavita 

Vaidyanathan, U.S. Department of 

Energy, Office of the General Counsel, 

Forrestal Building, GC–71, 1000 

Independence Avenue, SW., 

Washington, DC 20585, (202) 586–0669, 

e-mail: 

Kavita.Vaidyanathan@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

A. Statutory Requirements 

B. Background 

1. Publication of Standard 90.1–2010 

2. Analysis Methodology 

II. Summary of the Comparative Analysis 

A. Qualitative Analysis 

1. Discussion of Detailed Textual Analysis 

2. Results of Detailed Textual Analysis 

B. Quantitative Analysis 

1. Discussion of Whole Building Energy 

Analysis 

2. Results of Whole Building Energy 

Analysis 

C. Preliminary Determination Statement 

III. Filing Certification Statements With DOE 

A. Review and Update 

B. Certification 

C. Requests for Extensions to Certify 

IV. Regulatory Analysis 

A. Review Under Executive Order 12866 

B. Review Under the Regulatory Flexibility 

Act 

C. Review Under the National 

Environmental Policy Act of 1969 

D. Review Under Executive Order 13132, 

‘‘Federalism’’ 

E. Review Under the Unfunded Mandates 

Reform Act of 1995 

F. Review Under the Treasury and General 

Government Appropriations Act of 1999 

G. Review Under the Treasury and General 

Government Appropriations Act of 2001 

H. Review Under Executive Order 13211 

I. Review Under Executive Order 13175 

V. Public Participation 

I. Introduction 

A. Statutory Requirements 

Title III of the Energy Conservation 

and Production Act, as amended 

(ECPA), establishes requirements for the 

Building Energy Efficiency Standards 

Program. (42 U.S.C. 6831 et seq.) 

Section 304(b), as amended, of ECPA 

provides that whenever the ANSI/ 

ASHRAE/IESNA Standard 90.1–1989 

(Standard 90.1–1989 or 1989 edition), or 

any successor to that code, is revised, 

the Secretary must make a 

determination, not later than 12 months 

after such revision, whether the revised 

code would improve energy efficiency 

in commercial buildings and must 

publish notice of such determination in 

the Federal Register. (42 U.S.C. 6833 

(b)(2)(A)) The Secretary may determine 

that the revision of Standard 90.1–1989 

or any successor thereof, improves the 

level of energy efficiency in commercial 

buildings. If so, then not later than two 

years after the date of the publication of 


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