Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Notices 54117 

www.oe.energy.gov/ 

permits_pending.htm, or by e-mailing 

Odessa Hopkins at 

Odessa.Hopkins@hq.doe.gov. 

Issued in Washington, DC, on August 27, 

2010. 

Anthony J. Como, 

Director, Permitting and Siting, Office of 

Electricity Delivery and Energy Reliability. 

[FR Doc. 2010–22064 Filed 9–2–10; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

[Docket No. EERE–2006–BC–0132] 

RIN 1904–AC18 

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 90.1–2007 

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 2007 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 90.1–2007, (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 preliminarily 

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 

3.7 percent of commercial building 

energy consumption. Additionally, DOE 

has preliminarily determined site 

energy savings are estimated to be 

approximately 4.4 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 

Standard 90.1–2007. Additionally, this 

Notice provides guidance to States on 

Certifications, and Requests for 

Extensions of Deadlines for Certification 

Statements, should the preliminary 

determination by adopted as final. 

DATES: Comments on the preliminary 

determination must be provided by 

October 4, 2010. 

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: ronald.majette@ee.doe.gov. 

Include RIN 1904–AC18 in the subject 

line of the message. 

• Postal Mail: Mr. Ronald B. Majette, 

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: Mr. Ronald 

B. Majette, 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–AC18, 

for this rulemaking. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Ronald B. Majette, 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, 202–586–7935. For legal issues 

contact Kavita Patel, 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.Patel@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

A. Statutory Requirements 

B. Background 

1. Publication of Standard 90.1–2007 

2. Analysis Methodology 

3. DOE Response to Comments on Previous 

Analysis 

C. Summary of the Comparative Analysis 

1. Quantitative Analysis 

2. Detailed Textual Analysis 

D. Preliminary Determination Statement 

II. Results of Quantitative Analysis 

III. Discussion of Detailed Textual Analysis 

IV. Filing Certification Statements With DOE 

A. Review and Update 

B. Certification 

C. Requests for Extensions To Certify 

V. 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 

VI. Public Participation 

VII. Approval of the Office of the Secretary 

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 

such affirmative determination, each 

State 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(c) of ECPA 

and that it has made significant progress 

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


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B. Background 

1. Publication of Standard 90.1–2007 

The American Society of Heating, 

Refrigerating and Air-Conditioning 

Engineers (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 

American National Standards Institute 

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 American National 

Standards Institute (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. Analysis Methodology 

In arriving at a preliminary 

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. We 

preliminarily 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. 

DOE held a public workshop on 

February 18, 2009 to provide for public 

comment on the proposed analysis 

methodology. DOE provided notice of 

the workshop in the Federal Register 

(74 FR 4169; Jan. 23, 2009) in which it 

outlined changes in the methodology 

from previous determinations and 

identified ten key issues for which it 

requested stakeholder input. These 

issues were: 

(1) Specific reductions in stringency 

in Standard 90.1–2007 that DOE should 

be made aware of and that have been 

identified by stakeholders. 

(2) Specific changes in scope between 

Standard 90.1–2004 and Standard 90.1– 

2007 and how DOE should interpret 

expansions of scope in its 

determination. 

(3) DOE’s proposed approach to 

changes in referenced ventilation 

standards between Standard 90.1–2004 

and Standard 90.1–2007. 

(4) DOE’s proposed approach for 

addressing future effective dates for 

mechanical equipment requirements. 

(5) The frequency of use of alternative 

paths to compliance in building 

standards (e.g. space-by-space versus 

whole building lighting power 

allowances). 

(6) New non-residential building 

construction data (including Mid-rise 

and High-rise residential) by State or 

census division and building type. 

(7) Data to quantify the impact of 

Standard 90.1 on additions and 

renovations to existing buildings. 

(8) The relative prevalence of the 

semi-heated building envelope 

subcategory in the building types 

proposed for analysis (e.g. warehouses). 

(9) The relative importance of the 

Mid- and High-rise residential sector in 

DOE’s determination and data for 

developing weighting factors for this 

sector. 

(10) Data describing the relative 

frequency of use of alternative paths to 

compliance. 

DOE only received stakeholder input 

peripherally related to one of these key 

issues, that of the relative importance of 

mid- to high-rise residential building 

and their construction. However, DOE 

received input on several other issues of 

concern to stakeholders. 

3. DOE Response to Comments on 

Previous Analysis 

DOE sought comment on its general 

approach to the preliminary 

determination analysis and during the 

public meeting outlined the proposed 

approach and responded to questions 

and to comments received. DOE 

reviewed the comments and data 

submitted regarding issues raised in the 

proposed methodology for the 

quantitative analysis. The more 

significant comments are discussed 

below. DOE received comments in four 

general areas regarding the 

determination analysis methodology: 

The treatment of equipment efficiency 

improvements, characteristics of multifamily buildings, climates used in the 

quantitative analysis, and how DOE 

addresses the cost-effectiveness of 

requirements. DOE received other 

comments relating to how the 

determination results were to be used. 

DOE’s proposed quantitative analysis 

methodology includes any equipment 

efficiency improvements mandated by 

Federal equipment efficiency standards, 

either established by DOE or by 

legislation but not initiated by addenda 

to ASHRAE 90.1–2004, in the ASHRAE 

90.1–2004 baseline. The purpose for this 

is to prevent inclusion in the 

quantitative analysis of energy savings 

that would occur in new building 

construction (due to these mandated 

equipment efficiency improvements) 

regardless of the use of Standard 90.1– 

2004 or Standard 90.1–2007 as the basis 

for State building codes. This is 

consistent with the approach used in 

previous DOE determinations. 

The National Multi Housing Council 

(NMHC) commented that DOE’s 

approach would seem to miss an 

important energy savings feature and 

that the published standard does have a 

list of equipment efficiencies that 

should be the base for the calculations. 

NMHC commented that taking this into 

account would seem to be more 

important given the emphasis to 

improve the efficiency of the standard 

by a certain percentage. Also, NMHC 

commented that there is a time lag 

between when equipment 

improvements are adopted by the 

standards and when DOE publishes 

these as requirements. (NMHC, Public 

Meeting Transcript, pp. 38, 40–41) 

DOE does not use the determination 

methodology to ascertain whether the 

standard has met a minimum percentage 

improvement and is instead focused 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 


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version. With regard to the last 

statement, DOE’s quantitative analysis 

methodology does include energy 

savings from improvements in 

equipment efficiency first initiated by 

ASHRAE 90.1 in part because these 

improvements can be requirements in 

building codes before they can be 

promulgated as Federal minimum 

equipment efficiency standards. After 

considering the statements of NMHC, 

DOE determined not to modify its 

proposed methodology. 

The Responsible Energy Codes 

Alliance (RECA) wanted clarification 

and assurance that DOE was not 

providing credit in the assessment of 

energy savings for any requirements in 

90.1 that would in fact be preempted by 

existing Federal equipment efficiency 

standards and therefore could not be 

promulgated in State codes. (RECA, 

Public Meeting Transcript, pp. 43–45) 

DOE notes that there are no such 

requirements in ASHRAE Standard 

90.1–2007 and that this concern does 

not exist for this preliminary 

determination. 

In its discussion on the number of 

climates, NMHC asked if DOE planned 

to reduce the number of simulation 

locations from those identified in the 

notice and encouraged DOE not to 

reduce the number of locations used for 

the quantitative analysis simulations. 

(NMHC, Public Meeting Transcript, p. 

57) In response, DOE will use a single 

representative climate for each of the 15 

U.S. climate zones identified in the 

ASHRAE Standard 90.1–2004 and 

ASHRAE Standard 90.1–2007 

documents. It did not reduce the 

number of climate zones being used in 

the quantitative analysis but rather 

increased this number when compared 

with previous determinations. 

In commenting on representativeness 

of the multi-family building models, the 

NMHC commented that wood-frame 

was the dominant construction type up 

to and including four stories. NMHC 

stated that above five stories, steel-frame 

construction is more common, but the 

percentage of the construction market 

represented by these taller buildings 

drops off considerably. NMHC 

suggested that for the mid-rise multifamily buildings, DOE could assume 

that wood-frame construction was 

representative of the market. NMHC 

noted a steel-frame building would be 

more representative of a high-rise 

construction (10 stories) and DOE could 

assume steel-frame for the high-rise 

multi-family building class. (NMHC, 

Public Meeting Transcript, p. 65) The 

American Forest & Paper Association 

(AF&PA) expressed concern that the 

quantitative analysis would not pick up 

on the fact that multi-family buildings 

are built out of wood-frame 

construction. (AF&PA, Public Meeting 

Transcript, p. 73) In response, DOE 

appreciates the information provided by 

the NMHC and points out that woodframe construction does form the basis 

of the mid-rise apartment building 

model. DOE has not included a high-rise 

apartment building model into its 

quantitative analysis for the Standard 

90.1–2007 determination. 

AF&PA expressed concern over how 

the results of a quantitative analysis are 

used by DOE and presented to the 

building community. In particular, 

AF&PA questioned why a quantitative 

analysis is being done by DOE, given the 

legislative charge to DOE regarding the 

determination. AF&PA stated that it 

appeared that doing a quantitative 

analysis may be going beyond what is 

required of DOE. Further, AF&PA stated 

that DOE believes that this comparison 

can be done with a qualitative analysis, 

but DOE is choosing to bring in a 

quantitative analysis that misses some 

very significant issues such as 

construction type and material choices. 

They stated that it seems that the DOE 

goal for 30 percent savings applies only 

to Federal buildings and questioned 

why DOE isn’t looking at a typical pool 

of Federal buildings if it wants to do a 

quantitative analysis toward that goal. 

Finally, AF&PA stated that the results of 

a quantitative analysis would be a 

driving factor with the 90.1 committee, 

and that this would put further pressure 

on the committee to increase the 

stringency of wood-frame construction. 

(AF&PA, Public Meeting Transcript, pp. 

69–74) 

In response, DOE notes that the 

preliminary determination on ASHRAE 

Standard 90.1–2007 is not related to the 

legislative goal of 30-percent 

improvement in Federal buildings. In 

addition, while DOE has signed a 

memorandum with ASHRAE to improve 

energy efficiency in commercial 

building codes (Memorandum of 

Understanding between the United 

States Department of Energy and the 

American Society of Heating, 

Refrigerating and Air-Conditioning 

Engineers, Inc. Signed July 2007), DOE 

does not consider the purpose of the 

preliminary determination to measure 

how far along a path building standards 

have progressed from ASHRAE 

Standard 90.1–2004. DOE does believe 

that a quantitative analysis of savings 

should be done alongside a qualitative 

analysis and has carried this through in 

past ASHRAE Standard 90.1 

determinations. The quantitative 

analysis allows DOE to examine 

quantitatively multiple changes to 

Standard 90.1, with some reflecting 

improved efficiency, and others 

possibly reduced efficiency to 

determine in balance whether there has 

been an overall improvement in 

building efficiency. DOE does not 

intend for this preliminary 

determination to be used as a tool to 

measure progress toward a 30-percent 

improvement in commercial building 

energy codes beyond ASHRAE Standard 

90.1–2004. In support of both the 

preliminary determination and 

ASHRAE-driven code improvement 

process, DOE and ASHRAE are relying 

on a sample set of commercial buildings 

(based on the DOE benchmark buildings 

developed for DOE’s Net-Zero Energy 

Commercial Buildings Initiative and 

available at http:// 

www1.eere.energy.gov/buildings/ 

commercial_initiative/ 

benchmark_models.html) for measuring 

improvement in commercial building 

efficiency. DOE is using versions of this 

same set of building models for both the 

preliminary determination quantitative 

analysis as well as in a separate project 

to track improvement in future updates 

to ASHRAE Standard 90.1. The versions 

used for this preliminary determination 

can be found at http:// 

www.energycodes.gov/implement/ 

determinations_90.1-2007.stm. 

Following up on AF&PA comments, 

ASHRAE commented that the Standard 

90.1 development process is done with 

consensus building following the ANSI 

process and is developed through a 

broad spectrum of representation. 

ASHRAE further commented that the 

30-percent target that was reflected in a 

memorandum with DOE to improve 

efficiency in commercial buildings is a 

goal, not a mandate, since a mandate 

cannot be placed on a consensus body. 

(ASHRAE, Public Meeting Transcript, 

pp. 81, 82) 

AF&PA also commented that the DOE 

analysis reflects a snapshot in time and 

does not consider changes that will 

occur in the marketplace. Further, 

AF&PA believed that there is a 

legislative charge for DOE to support the 

notion of cost-effectiveness and use of 

readily available technology. They 

asked if there is a way for DOE to 

become more engaged in how that 

aspect is driving changes in envelope 

energy performance. (AF&PA, Public 

Meeting Transcript, pp. 87–88) In 

response, DOE points out that the 

analysis used to set the envelope 

requirements for different construction 

assemblies had cost-effectiveness as its 

basis. However, the purpose of the 

preliminary determination analysis is 

not to investigate the validity of the 

development of ASHRAE Standard 


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90.1–2007 but to determine whether it 

reflects an increase in efficiency. 

AF&PA also asked if a description of 

the building models, in particular how 

infiltration is modeled, could be 

provided. (AF&PA, Public Meeting 

Transcript, pp. 93–94) DOE has 

included a description of the benchmark 

building models and how these were 

used in the quantitative analysis 

documentation published at http:// 

www.energycodes.gov/implement/ 

determinations_90.1–2007.stm. 

RECA commented that some States 

that will adopt the International Energy 

Conservation Code (IECC) for both 

residential and commercial building 

energy codes with the understanding 

that because ASHRAE is referenced by 

the IECC, they are essentially 

equivalent. RECA asked whether DOE 

has prepared any guidance for States to 

describe what is acceptable and whether 

this would be provided in the 

preliminary determination. (RECA, 

Public Meeting Transcript, pp. 111–112) 

Currently, DOE has not published any 

statements that a version of the IECC is 

equivalent in terms of energy savings to 

for ASHRAE 90.1 in the State code 

certification process. Each State’s 

submittal with regard to certification of 

its energy code is dealt with on a caseby-case basis. Further, the DOE 

commercial energy code certification 

requirements with regard to meeting or 

exceeding the efficiency of the most 

recent ASHRAE Standard 90.1 version 

for which a positive determination has 

been made are separate from the 

residential energy code certification 

requirements that reference the IECC. 

Some States may adopt the IECC and 

not adopt the commercial code 

requirements. For these reasons, DOE 

considers the commercial and 

residential building energy code 

certification by the States a separate 

process. 

As acknowledged in the previous 

analysis, DOE recognizes that, given the 

numerous assumptions required to 

simulate the potential impact of a new 

commercial building energy standard, 

reasonable minds could differ over both 

the specific building models employed 

and the assumptions used in those 

models. DOE also recognizes the 

cautions from AF&PA regarding the 

quantitative analysis and previous 

comments about the complexity of the 

problem. 

DOE recognizes that the methodology 

proposed for the quantitative analysis 

will be insufficient for determining an 

absolute quantification of energy 

savings estimates associated with using 

Standard 90.1–2007 (e.g., total quads of 

energy savings) and makes no such 

claim for the analysis on which this 

preliminary determination relies. DOE’s 

quantitative analysis includes many of 

the changes brought about in Standard 

90.1–2007 that can be modeled, but this 

quantitative analysis is not able to 

quantify accurately all the likely effects 

of the new standard. In particular, the 

degree to which the market may react to 

certain changes brought about following 

the adoption of a new building code, 

and the degree to which different 

requirements are currently being met or 

will be met in future construction, are 

exceedingly difficult to ascertain and 

would affect the absolute quantification 

of energy savings. However, DOE 

believes that the quantitative 

determination process outlined does 

provide a reasonable approach to 

establishing whether, in concert, the 

changes brought about by ASHRAE 

Standard 90.1–2007 will result in 

improved energy efficiency in buildings 

over ASHRAE Standard 90.1–2004. 

DOE continues to believe that the 

preliminary determination should rely 

on both quantitative and qualitative 

comparisons. While quantitative 

estimates of energy savings are indeed a 

much preferred method of comparison, 

it is not always possible to simulate or 

provide appropriate weighting to many 

features in Standard 90.1. Therefore, 

DOE will continue to note changes that 

individually or in net result in increased 

energy efficiency, even where they 

could not be accurately quantified. 

States can use this information when 

upgrading their energy codes. 

DOE continues to believe that the 

quantitative analysis should be based on 

the minimum requirements of each 

standard that reflect the minimum set of 

options available in new construction. 

In assessing the impact of those 

requirements, DOE also believes that 

assessment should be based on an 

estimate of typical construction 

practices. DOE believes that this has 

been done in the quantitative analysis. 

For this preliminary determination, 

DOE utilized 5 years of previous 

building construction data, as 

developed using proprietary F.W. Dodge 

building statistical data by building type 

and by location down to the county 

level and purchased by DOE, to develop 

weighting factors to weight the building 

simulation results. (A summary of the 

data is available in a PNNL report— 

PNNL–19116—Jarnagin and 

Bandyopodhyay, 2010, Weighting 

Factors for the Commercial Building 

Prototypes used in the Development of 

ANSI/ASHRAE/IESNA Standard 90.1– 

2010 at http://www.pnl.gov/main/ 

publications/external/technical_reports/ 

PNNL–19116.pdf.) Past determinations 

have relied on new construction floor 

space growth estimates extracted from 

the Energy Information Administration’s 

(EIA) National Energy Modeling System 

(NEMS) as the basis for weighting 

energy savings across building types 

and regions. DOE believes that for the 

purpose of this analysis the F.W. Dodge 

construction data provides better 

mapping of actual construction by 

region and building type than could be 

obtained using the EIA/NEMS data. In 

particular, the use of county-level 

construction data allowed DOE to 

develop building construction statistics 

directly reflecting construction in each 

of the ASHRAE climate regions, 

avoiding many assumptions on regional 

construction volume that would be 

necessary using the EIA/NEMS data. 

Consistent with the previous analysis, 

DOE compared versions of Standard 

90.1 ‘‘as a whole’’ and did not issue 

determinations for individual addenda. 

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. This determination is made 

by comparing the revised or successor 

standard to the last predecessor 

standard. While the addenda process is 

part of the ongoing maintenance of the 

standard and thus continually modifies 

or revises the 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 

required 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 statutory language in Section 

304(b) of ECPA states that the Secretary 

is required to make a determination as 

to whether any successor standard to 

ASHRAE Standard 90.1–1989 will 

improve energy efficiency. (42 U.S.C. 

6833(b)(2)(A)) The Secretary must 

publish a notice of this determination in 


srobinson on DSKHWCL6B1PROD with NOTICES
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the Federal Register. The language does 

not require that DOE perform an 

independent economic analysis as part 

of the determination process. Section 

304(b) of ECPA does not include any 

reference to language concerning 

economic justification. 

However, Congress did address 

consideration of the technological 

feasibility and cost effectiveness of the 

Voluntary Building Energy Codes. 

Section 307 of ECPA requires DOE to 

participate in the ASHRAE process and 

to assist in determining the cost 

effectiveness and technical feasibility of 

the ASHRAE standard. (42 U.S.C. 6836) 

It also requires DOE to periodically 

review the economic basis of the 

voluntary building energy codes and 

participate in the industry process for 

review and modification, including 

seeking adoption of all technologically 

feasible and economically justified 

energy efficiency measures. (42 U.S.C. 

6836(b)) 

Unlike Section 307 of ECPA (42 

U.S.C. 6836), which specifically 

includes language concerning economic 

justification, Section 304 of ECPA does 

not include any reference to economic 

justification. ‘‘It is generally presumed 

that Congress acts intentionally and 

purposefully where it includes 

particular language in one section of a 

statute but omits it in another section.’’ 

Bates v. United States, 522 U.S. 23, 

29–30 (1997) (Citations omitted). 

Accordingly, the statutory scheme 

cannot be read to require an economic 

analysis as part of the determination 

process in Section 304(b) of ECPA. 

The fact that the Section 304 of ECPA 

determination process does not require 

the Secretary to perform an economic 

analysis does not diminish the 

importance that the ASHRAE standards 

be technologically feasible and 

economically justified. However, the 

statute addresses these issues by 

directing DOE to participate in the 

ASHRAE process itself. 

Accordingly, for all of these reasons, 

DOE has determined that it is not 

required to perform an economic 

analysis as part of its determination 

process in Section 304 of ECPA. 

A significant change in DOE’s 

approach from previous determinations 

was the use of specific buildings, as 

representative of a typical building type, 

in the development of building energy 

use intensity (EUI), without the scaling 

approach used in previous 

determinations. While the scaling 

approach used previously provides an 

assessment of the impact of building 

changes over a broad range of building 

sizes, DOE determined that the benefits 

did not outweigh the complexity of this 

approach for the purpose of a yes/no 

determination. The availability of 

commercial benchmark building models 

in EnergyPlus for a wide variety of 

building types and typical sizes was 

deemed sufficient for the preliminary 

quantitative determination analysis of 

Standard 90.1–2007. 

One of the most significant 

commercial building end-uses regulated 

by energy codes and standards is 

lighting. For the preliminary 

quantitative analysis, each of DOE’s 

building models have its internal 

lighting power density (LPD) 

determined using either the building 

area lighting compliance path or the 

space-by-space lighting compliance path 

from each ASHRAE Standard 90.1 

edition. Building area LPDs are defined 

in ASHRAE Standard 90.1 as maximum 

lighting power allowance given in watts 

(W)/square foot (ft2), for specific 

building types and do not consider 

internal variation in the spaces used 

within a given building. In contrast, 

space-by-space LPDs are a specific 

lighting power allowance in W/ft2 for a 

given space type regardless of what 

building type it is in. Using the spaceby-space method, the maximum allowed 

lighting power density for a given 

building is determined by summing up 

the product of the area fraction of each 

defined space-type within the building 

and the allowed lighting power within 

each space-type. The space-by-space 

method takes into account variation in 

the area devoted to different space types 

within a particular building. In 

addition, both Standard 90.1 editions 

allow for certain additional lighting 

power allowances when the space-byspace method is used. 

The building models used for the 

preliminary quantitative analysis are 

specific building designs, in most cases 

with specific spaces defined within the 

prototype and with different lighting 

schedules for each space in accordance 

with its expected use. DOE chose to use 

the space-by-space method to establish 

the overall lighting power within these 

prototypes. In the case of one prototype, 

the strip mall retail building, DOE also 

included lighting power to reflect the 

typical values for additional lighting 

power allowances that would be 

allowed as display lighting under 

Standard 90.1–2004 and Standard 90.1– 

2007, assuming the same display area in 

the prototype. For building prototypes 

where space type distinctions were not 

deemed as important or significant, the 

building area LPD numbers were used 

(e.g., office buildings). 

The use of the space-by-space lighting 

method is a deviation from previous 

ASHRAE Standard 90.1 determinations 

where less detailed building models 

were utilized in the quantitative 

analysis. However, since the base LPD 

values for either path did not change 

between Standard 90.1–2004 and 

Standard 90.1–2007 and the change in 

the additional lighting power allowance 

was small and considered for only one 

building type, the choice of compliance 

path was deemed not to affect 

significantly the determination of 

energy savings. For each building type, 

Table 1shows the lighting compliance 

path used for the quantitative analysis 

and the average LPD used in the 

building models. Once selected, the 

same compliance path was used for LPD 

assumptions in both Standard 90.1 

editions being compared. For each 

building prototype, the ASHRAE 

Standard 90.1–2004 and 90.1–2007 

building area LPDs are shown for 

comparison alongside the values used in 

the quantitative analysis. 

TABLE 1—INTERNAL LIGHTING POWER DENSITY USED IN BUILDING MODELS

Building type Building prototype Lighting compliance path used 

for simulation model 

Simulation lighting power 

densityW/ft2

Building area lighting 

power densityW/ft2

90.1–2004 90.1–2007 90.1–2004 90.1–2007 

Office ................ Small Office ............................... Building Area ............................. 1.000 1.000 1.0 1.0 

Medium Office ........................... Building Area ............................. 1.000 1.000 1.0 1.0 

Large Office .............................. Building Area ............................. 1.000 1.000 1.0 1.0 

Retail ................. Stand-Alone Retail .................... Space-by-Space ........................ 1.548 1.548 1.5 1.5 

Strip Mall ................................... Space-by-Space ........................ 1.645 1.568 1.5 1.5 

Education .......... Primary School .......................... Space-by-Space ........................ 1.188 1.188 1.2 1.2 

Secondary School ..................... Space-by-Space ........................ 1.134 1.134 1.2 1.2 

Healthcare ........ Outpatient Health Care ............. Space-by-Space ........................ 1.094 1.094 1.0 1.0 


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TABLE 1—INTERNAL LIGHTING POWER DENSITY USED IN BUILDING MODELS—Continued 

Building type Building prototype Lighting compliance path used 

for simulation model 

Simulation lighting power 

densityW/ft2

Building area lighting 

power densityW/ft2

90.1–2004 90.1–2007 90.1–2004 90.1–2007 

Hospital ..................................... Space-by-Space ........................ 1.119 1.119 1.2 1.2 

Lodging ............. Small Hotel ................................ Space-by-Space ........................ 0.968 0.968 1.0 1.0 

Large Hotel ............................... Building Area ............................. 1.000 1.000 1.0 1.0 

Warehouse ....... Non-Refrigerated Warehouse ... Space-by-Space ........................ 0.810 0.810 0.8 0.8 

Food Service .... Fast Food Restaurant ............... Space-by-Space ........................ 1.650 1.650 1.4 1.4 

Sit-Down Restaurant ................. Space-by-Space ........................ 1.855 1.855 1.6 1.6 

Apartment ......... Mid-Rise Apartment .................. Space-by-Space ........................ 0.402 0.402 0.7 0.7 

The building area LPDs are identical 

for both Standard 90.1 versions. The 

space-by-space LPDs tabulated by space 

type are also identical in both 

Standards. However, in addition, under 

the space-by-space compliance path are 

additional lighting power allowances 

provided for specific circumstances 

(primarily display lighting). Standard 

90.1–2004 and Standard 90.1–2007 both 

have additional lighting power 

allowances for decorative lighting and 

for retail display lighting to highlight 

merchandise. Standard 90.1–2004 also 

provides a small additional lighting 

power allowance for video display 

terminal lighting. This latter was 

removed in Standard 90.1–2007 and 

considered seldom used in practice. The 

additional lighting power for decorative 

lighting was not changed between 

standards. The additional lighting 

power allowance for retail display 

lighting was changed to use four 

specific merchandise categories 

described by lists of merchandise. Only 

two general merchandise categories 

were used in Standard 90.1–2004. DOE 

collected limited information on display 

areas in a small sample of retail 

buildings and made a conservative 

estimate that for the strip mall 

prototype, approximately 13 percent of 

the entire building area might qualify 

for the display lighting power 

allowances. DOE assumed that the 

additional lighting power allowance for 

that display area was reduced from an 

average of 2.75 W/ft2 (based on an 

average of the two additional lighting 

power display categories in Standard 

90.1–2004) to 2.15 W/ft2 (based on an 

average of the middle two additional 

lighting power display categories in 

Standard 90.1–2007). This assumption 

resulted in a 4.6 percent reduction in 

whole building LPD for this prototype. 

DOE believes that this result is likely a 

conservative estimate of the energy 

savings from this additional lighting 

power change. 

The final space-by-space calculations 

used in the quantitative analysis yield 

LPDs that differ from the LPDs 

determined from the building area 

compliance paths. For all building 

models other than restaurants and the 

mid-rise apartment, the lighting power 

densities used are between 7 percent 

lower to 8 percent higher than LPD from 

the building area compliance path. The 

LPDs modeled for the two restaurant 

prototypes are 16 to 18 percent higher 

than the LPD from the building area 

compliance path in either standard, a 

direct result of the relative ratio of 

kitchen to dining areas used in these 

prototypes compared with that assumed 

in the development of the ASHRAE 90.1 

building area LPD values. All else being 

equal, the impact of higher LPD 

assumptions is to result in a somewhat 

greater cooling load and lower heating 

load in these prototypes. 

The building average LPD modeled 

for the mid-rise apartment prototype is 

43 percent lower than the tabulated 

building area LPD value shown in both 

versions of Standard 90.1. However, the 

lighting section in both versions states 

that lighting in living units (i.e., 

apartments within multi-family 

housing) is not within the scope of 

Standard 90.1, implying that the 

building area method value should be 

applied only to common space within 

multi-family buildings and would not 

be suitable for the modeling of building 

lighting power. To generate the LPD for 

the mid-rise apartment building, DOE 

used the space-by-space LPD allowances 

in Standard 90.1. The mid-rise 

apartment prototype consists of two 

defined space types: Office-enclosed 

and corridors; and the individual 

apartment units. Standard 90.1 has 

space-by-space LPDs for the office and 

corridor spaces. DOE assumed a value of 

0.36 W/ft2 for the LPD inside the 

apartments based on the lighting power 

assumptions found in the DOE 

Residential Building America Research 

Benchmark. 

Identical lighting schedules were used 

for the Standard 90.1–2004 and 

Standard 90.1–2007 building 

prototypes, as no addenda to Standard 

90.1–2004 affected the scheduled usage. 

In addition to the internal lighting 

power density, Standard 90.1 has 

requirements for exterior lighting 

power. These requirements are identical 

between Standard 90.1–2004 and 

Standard 90.1–2007 and are based on 

the application of specific exterior 

lighting power densities allowances to 

defined exterior surfaces types (e.g., 

building entrances or parking areas). In 

order for the building prototypes to 

better reflect energy use in actual 

buildings, specific assumptions for the 

amount of these defined exterior 

surfaces present for each building 

prototype were developed from detailed 

building plan data. All exterior lighting 

was assumed to be controlled by 

astronomical time clock for the 

prototypes. 

Table 2 shows the exterior lighting 

power assumption, expressed in W/ft2

of building area. 

TABLE 2—EXTERIOR LIGHTING POWER FOR BOTH 90.1–2004 AND 90.1–2007 BUILDING PROTOTYPES

Building type Building prototype Prototype 

floor area ft2

Prototype exterior lighting power (normalized to W/ft2 of 

building floor area) 

Parking lot Doors Fac ̧ade Total 

Office .......................... Small Office ..................................................... 5,502 0.243 0.039 0.015 0.297 

Medium Office ................................................. 53,628 0.243 0.010 0.015 0.268 

Large Office .................................................... 498,588 0.098 0.002 0.026 0.126 


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TABLE 2—EXTERIOR LIGHTING POWER FOR BOTH 90.1–2004 AND 90.1–2007 BUILDING PROTOTYPES—Continued 

Building type Building prototype Prototype 

floor area ft2

Prototype exterior lighting power (normalized to W/ft2 of 

building floor area) 

Parking lot Doors Fac ̧ade Total 

Retail .......................... Stand-Alone Retail .......................................... 24,692 0.213 0.063 0.020 0.297 

Strip Mall ......................................................... 22,500 0.282 0.095 0.030 0.407 

Education ................... Primary School ................................................ 73,959 0.030 0.039 0.004 0.073 

Secondary School ........................................... 210,887 0.042 0.021 0.003 0.067 

Healthcare .................. Outpatient Health Care ................................... 40,946 0.304 0.042 0.007 0.353 

Hospital ........................................................... 241,501 0.048 0.007 0.014 0.069 

Lodging ....................... Small Hotel ...................................................... 43,202 0.117 0.006 0.018 0.140 

Large Hotel ..................................................... 122,120 0.109 0.004 0.047 0.159 

Warehouse ................. Non-Refrigerated Warehouse ......................... 52,045 0.058 0.090 0.003 0.151 

Food Service .............. Fast Food Restaurant ..................................... 2,501 0.607 0.024 0.065 0.697 

Sit-Down Restaurant ....................................... 5,502 0.607 0.027 0.037 0.672 

Apartment ................... Mid-Rise Apartment ........................................ 33,741 0.127 0.000 0.011 0.138 

Because the exterior lighting power 

densities did not change between 

Standard 90.1–2004 and Standard 90.1– 

2007, the inclusion of exterior lighting 

does not affect DOE’s determination of 

energy savings; however, as it affects the 

baseline building energy use, it does 

have an impact on the percentage 

savings calculated for each building 

type. 

DOE’s preliminary quantitative 

determination was carried out using the 

EnergyPlus building simulation tool. 

EnergyPlus was selected for this 

determination for several reasons. First, 

DOE believes that the underlying 

calculation methods and the wide 

variety of systems available in 

EnergyPlus version 3.0, used for this 

preliminary determination, are 

sufficiently advanced over those in 

BLAST and DOE2 to justify the use of 

EnergyPlus. Quoting from DOE’s 

EnergyPlus Web site (http:// 

apps1.eere.energy.gov/buildings/ 

energyplus/), ‘‘While originally based on 

the most popular features and 

capabilities of BLAST and DOE–2, 

EnergyPlus includes many innovative 

simulation capabilities such as time 

steps of less than an hour, modular 

systems and plant integrated with heat 

balance-based zone simulation, multizone air flow, thermal comfort, water 

use, natural ventilation, and 

photovoltaic systems’’. Second, DOE had 

developed a set of commercial building 

prototypes in EnergyPlus that could 

reasonably form the basis of a nationalscale simulation analysis. DOE has 

received and responded to much 

feedback from the ASHRAE Standard 

90.1 simulation working group and 

other simulation experts on how to 

improve the representativeness of these 

building models. Finally, DOE believes 

that a critical mass of EnergyPlus users 

and sufficiently broad range of DOE 

contractor experience with the tools 

meant that models could be reviewed 

and results examined sufficiently for the 

purpose of the preliminary 

determination. 

C. Summary of the Comparative 

Analysis 

DOE carried out both a broad 

quantitative analysis and a detailed 

textual analysis of the differences 

between the requirements and the 

stringencies in the 2004 and the 2007 

editions of Standard 90.1. 

1. Quantitative 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 

simulated 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 benchmark 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 multi-family 

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 preliminarily 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 $/sf 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 10,800 Btus primary energy per 

kWh (based on the 2009 estimated 

values reported in Table 2 of the EIA 

Annual Energy Outlook, 2009, April 

2009 release available at http:// 


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www.eia.doe.gov/oiaf/aeo/). Natural Gas 

EUIs in the prototypes were converted 

to primary energy using a factor of 1.089 

Btus primary energy per Btu of site 

natural gas use (based on the 2009 

national energy use estimated shown in 

Table 2 of the AEO 2009). This natural 

gas source energy conversion factor was 

calculated by dividing the sum of all 

natural gas usage, including usage for 

natural gas field production, leases, 

plant fuel, and pipeline (compression) 

supply by delivered gas energy to the 

four primary energy sectors (residential, 

commercial, industrial, and 

transportation). 

To estimate the reduction in energy 

cost index, DOE relied on national 

average commercial building energy 

prices of $0.1028/kWh of electricity and 

$11.99 per 1000 cubic feet ($1.163/ 

therm) of natural gas, based on EIA 

statistics for 2008 (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 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 preliminary 

determination. 

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 

preliminary 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. 

Both the 2007 and 2004 editions 

address additions and renovations to 

existing buildings. Since DOE has 

preliminarily 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. 

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. 

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 3.7 percent of 

commercial building energy 

consumption based on the weighting 

factors for the 15 buildings simulated. 

Site energy savings are estimated to be 

approximately 4.4 percent. Using 

national average fuel prices for 

electricity and natural gas DOE 

estimated a reduction in energy 

expenditures of 3.8 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. 

We also 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. 

DOE works with the National Institute 

of Standards and Technology’s (NIST) 

Building and Fire Research Laboratory 

on a variety of projects related to highperformance buildings. NIST is the 

main overseer of the Building Life Cycle 

Cost (BLCC) software used to support 10 

CFR 436 and Federal life cycle costing 

requirements within the Federal sector. 

DOE and NIST co-chair the Building 

Technology Research and Development 

(BT R&D) committee under the Office of 

Science and Technology Policy (OSTP) 

as required under Section 913 of the 

Energy Policy Act of 2005. However, 

DOE does not typically work with NIST 

on determinations of energy efficiency 

of building standards. The technical 

work on DOE’s determinations is 

provided by staff at Pacific Northwest 

National Laboratory’s Building Energy 

Codes Program. 

2. Detailed Textual Analysis 

The emphasis of our 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 


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addenda was evaluated by DOE in 

preparing this preliminary 

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. 

D. Preliminary Determination Statement 

DOE’s review and evaluation 

indicates that there are significant 

differences between the 2004 edition 

and the 2007 edition. Our overall 

preliminary 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’’ 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 

preliminarily determined that the 

remaining addenda either represented 

no change in stringency, or indicated a 

positive change in stringency 

corresponding to improved efficiency. 

Overall, DOE preliminarily concluded 

the changes in textual requirements and 

stringencies are ‘‘positive,’’ in the sense 

that they would improve energy 

efficiency in commercial construction. 

Our quantitative analysis preliminarily 

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 improve the efficiency of the 

existing building stock. DOE has, 

therefore, preliminarily concluded that 

Standard 90.1–2007 receive an 

affirmative determination under Section 

304(b) of the ECPA. 

II. Results of Quantitative Analysis 

Tables 3 and 4 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 ranges 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 

preliminary quantitative analysis report 

available at http:// 

www.energycodes.gov/implement/ 

determinations_90.1-2007.stm. 

TABLE 3—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 39.2 116.3 $1.11 

Medium Office ................................. 6.64 42.1 4.2 46.3 137.5 1.32 

Large Office .................................... 3.65 34.4 5.7 40.1 114.6 1.10 

Retail .................. Stand-Alone Retail .......................... 16.76 56.1 15.0 71.1 192.6 1.86 

Strip Mall ......................................... 6.23 55.2 20.1 75.2 194.8 1.90 

Education ............ Primary School ............................... 5.49 47.9 23.5 70.5 175.3 1.72 

Secondary School ........................... 11.38 43.7 19.5 62.4 157.8 1.54 

Healthcare .......... Outpatient Health Care ................... 4.80 106.7 54.7 153.2 392.6 3.85 

Hospital ........................................... 3.79 96.3 57.6 153.1 362.7 3.57 

Lodging ............... Small Hotel ..................................... 1.89 48.3 26.1 74.3 179.0 1.76 

Large Hotel ..................................... 5.44 68.5 84.4 152.3 301.2 3.04 

Warehouse ......... Non-Refrigerated Warehouse ......... 18.36 14.5 10.7 25.2 56.7 0.56 

Food Service ...... Fast-Food Restaurant ..................... 0.64 226.5 326.1 527.9 1043.5 10.62 

Sit-Down Restaurant ....................... 0.72 179.3 202.1 370.5 770.2 7.75 

Apartment ........... Mid-Rise Apartment ........................ 8.04 32.5 10.1 42.7 113.1 1.10 

National .............. ......................................................... 100 47.0 22.2 68.4 171.1 1.67 

TABLE 4—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 38.6 115.2 $1.10 

Medium Office ................................. 6.64 40.2 4.3 44.5 131.5 1.26 

Large Office .................................... 3.65 34.3 4.6 38.9 113.2 1.09 

Retail .................. Stand-Alone Retail .......................... 16.76 51.4 13.3 64.7 176.1 1.70 


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TABLE 4—ESTIMATED ENERGY USE INTENSITY BY BUILDING TYPE—2007 EDITION—Continued 

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 

Strip Mall ......................................... 6.23 52.3 16.9 69.2 182.6 1.77 

Education ............ Primary School ............................... 5.49 46.7 19.9 65.6 167.9 1.64 

Secondary School ........................... 11.38 42.5 16.6 58.4 151.3 1.47 

Healthcare .......... Outpatient Health Care ................... 4.80 102.1 52.8 147.0 376.4 3.69 

Hospital ........................................... 3.79 95.8 56.2 151.2 359.7 3.54 

Lodging ............... Small Hotel ..................................... 1.89 46.5 24.7 71.2 172.1 1.69 

Large Hotel ..................................... 5.44 69.1 79.1 147.6 298.0 3.00 

Warehouse ......... Non-Refrigerated Warehouse ......... 18.36 14.5 10.6 25.2 56.6 0.56 

Food Service ...... Fast-Food Restaurant ..................... 0.64 222.1 319.5 516.9 1023.0 10.41 

Sit-Down Restaurant ....................... 0.72 177.5 200.0 366.7 762.4 7.67 

Apartment ........... Mid-Rise Apartment ........................ 8.04 31.8 9.0 40.8 109.8 1.06 

National .............. ......................................................... 100 45.5 20.6 65.4 164.8 1.61 

Table 5 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 5—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 1.1 

Medium Office ................................. 6.64 4.6 ¥2.3 3.9 4.4 4.3 

Large Office .................................... 3.65 0.3 18.0 2.8 1.2 1.4 

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 6.5 

Education ............ Primary School ............................... 5.49 2.5 15.4 6.9 4.2 4.6 

Secondary School ........................... 11.38 2.6 14.8 6.4 4.1 4.4 

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 0.8 0.9 

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 1.1 1.4 

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 2.1 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 2.9 3.1 

National .............. ......................................................... 100 3.2 6.9 4.4 3.7 3.8 

III. Discussion of Detailed Textual 

Analysis 

A qualitative analysis of all addenda 

to ANSI/ASHRAE/IESNA Standard 

90.1–2004 that were included in ANSI/ 

ASHRAE/IESNA 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 

preliminarily determined whether that 

addenda would have a positive, neutral, 

or negative impact on overall building 

efficiency. Table S–1 shows the 

potential number of positive and 

negative changes for each section of 

Standard 90.1. 

The preliminary 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. 

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; 


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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 6. Overall, the potential 

positive impacts outweigh the potential 

negative impacts in a simple numerical 

comparison. 

TABLE 6—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 

IV. Filing Certification Statements With 

DOE 

A. Review and Update 

If today’s determination is finalized, 

each State would be 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 

would be required to be taken not later 

than two years from the date of the final 

determination notice, 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. 

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 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. 

DOE does list the States that have 

filed certifications and those that have 

or have not adopted new codes. 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). 

Each state is unique in how they go 

about adopting and enforcing their 

energy codes. 

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; 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 


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requirements of Section 304 of ECPA. 

This list is not exhaustive. 

V. 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; 

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 the 

preparation of an initial regulatory 

flexibility analysis for any rule that by 

law must be proposed for public 

comment, unless the agency certifies 

that the rule, if promulgated, will not 

have a significant economic impact on 

a substantial number of small entities. 

As required by Executive Order 13272, 

‘‘Proper Consideration of Small Entities 

in Agency Rulemaking,’’ (67 FR 53461; 

August 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the 

rulemaking process (68 FR 7990). DOE 

has made its procedures and policies 

available on the Office of General 

Counsel’s Web site: http:// 

www.gc.doe.gov. Today’s action on the 

determination of improved energy 

efficiency between the ASHRAE 2004 

and 2007 of Standard 90.1 would 

require States to undertake an analysis 

of their respective building codes. 

Today’s action does not impact small 

entities. Therefore, the analytical 

requirements of the Regulatory 

Flexibility Act do not apply. 

C. Review Under the National 

Environmental Policy Act of 1969 

DOE has preliminarily 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, each State 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)) 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 

preliminarily 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 

(August 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)). 

Executive Order 13132, 64 FR 43255 

(August 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 DOE 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 preliminary 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 


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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. 

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. 

If today’s determination is finalized, 

each State would be required 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)) Section 304 of 

ECPA requires State action in response 

to a positive determination by DOE. 

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 3 

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 3 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 

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 provide 

training on the new code. 


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(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 (February 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (October 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 

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; November 

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. 

VI. Public Participation 

The public is invited to submit 

comments on the preliminary 

determinations. Comments must be 

provided by October 4, 2010 using any 

of the methods described in the 

ADDRESSES section of this notice. 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 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Notices 54131 

Information regulations at 10 CFR 

1004.11. 

VII. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this preliminary 

determination. 

Issued in Washington, DC, on August 26, 

2010. 

Cathy Zoi, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy. 

[FR Doc. 2010–22060 Filed 9–2–10; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

[Docket No. EERE–2010–BT–DET–0030] 

RIN 1904–AC17 

Updating State Residential Building 

Energy Efficiency Codes 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notice of proposed 

determination. 

SUMMARY: The Department of Energy 

(DOE or Department) has preliminarily 

determined that the 2009 version of the 

International Code Council (ICC) 

International Energy Conservation Code 

(IECC) would achieve greater energy 

efficiency in low-rise residential 

buildings than the 2006 IECC. Also, 

DOE has preliminarily determined that 

the 2006 version of the IECC would 

achieve greater energy efficiency than 

the 2003 IECC. Finally, DOE has 

preliminarily determined that the 2003 

version of the IECC would not achieve 

greater energy efficiency than the 2000 

IECC. If these determinations are 

finalized, States would be required to 

file certification statements to DOE that 

they have reviewed the provisions of 

their residential building code regarding 

energy efficiency and made a 

determination as to whether to update 

their code to meet or exceed the most 

recent code with an affirmative 

determination, the 2009 IECC. 

Additionally, this Notice provides 

guidance to States on how the codes 

have changed from previous versions, 

how to submit certifications, and how to 

request extensions of the deadline to 

submit certifications, should the 

preliminary determinations be adopted 

as final. 

DATES: Comments on the preliminary 

determinations must be provided by 

October 4, 2010. 

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: ronald.majette@ee.doe.gov. 

Include RIN 1904–AC17 in the subject 

line of the message. 

• Postal Mail: Mr. Ronald B. Majette, 

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: Mr. Ronald 

B. Majette, U.S. Department of Energy, 

Federal Energy Management 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– 

2010–BT–DET–0030, or Regulatory 

Information Number (RIN), 1904–AC17, 

for this rulemaking. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Ronald B. Majette, 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, 202–586–7935. For legal issues 

contact Chris Calamita, U.S. Department 

of Energy, Office of the General Counsel, 

Forrestal Building, GC–72, 1000 

Independence Avenue, SW., 

Washington, DC 20585, (202) 586–9507, 

e-mail: 

Christopher.Calamita@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

A. Statutory Requirements 

B. Background 

C. DOE’s Preliminary Determination 

Statements 

II. Discussion of Changes in the 2003, 2006, 

and 2009 IECC 

A. 2003 IECC Compared With the 2000 

IECC 

B. 2006 IECC Compared With the 2003 

IECC 

C. 2009 IECC Compared With the 2006 

IECC 

III. Comparison of the 2009 IRC to the 2009 

IECC 

IV. Filing Certification Statements With DOE 

A. State Determinations 

B. Certification 

C. Request for Extensions 

V. 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 

VI. Public Participation 

VII. Approval of the Office of the Secretary 

I. Introduction 

A. Statutory Requirements 

Title III of the Energy Conservation 

and Production Act, as amended 

(ECPA), establishes requirements for the 

Building Energy Standards Program. (42 

U.S.C. 6831–6837) Section 304(b) of 

ECPA, as amended, provides that when 

the 1992 Model Energy Code, or any 

successor to that code, is revised, the 

Secretary of the Department of Energy 

must determine, not later than 12 

months after the revision, whether the 

revised code would improve energy 

efficiency in residential buildings and 

must publish notice of the 

determination in the Federal Register. 

(42 U.S.C. 6833(a)(5)(A)) The 

Department, following precedent set by 

the International Code Council (ICC) 

and the American Society of Heating, 

Refrigerating and Air-Conditioning 

Engineers (ASHRAE) considers high-rise 

(greater than three stories) multifamily 

residential buildings and hotel, motel, 

and other transient residential building 

types of any height as commercial 

buildings for energy code purposes. 

Low-rise residential buildings include 

one- and two-family detached and 

attached buildings, duplexes, 

townhouses, row houses, and low-rise 

multifamily buildings (not greater than 

three stories) such as condominiums 

and garden apartments. 

If the Secretary determines that the 

revision would improve energy 

efficiency then, not later than 2 years 

after the date of the publication of the 

affirmative determination, each State is 

required to certify that it has compared 

its residential building code regarding 

energy efficiency to the revised code 

and made a determination whether it is 

appropriate to revise its code to meet or 

exceed the provisions of the successor 

code. (42 U.S.C. 6833(a)(5)(B)) State 

determinations are to be made: (1) After 

public notice and hearing; (2) in writing; 

(3) based upon findings included in 

such determination and upon evidence 

presented at the hearing; and (4) 

available to the public. (See, 42 U.S.C. 

6833(a)(5)(C)) In addition, if a State 

determines that it is not appropriate to 

revise its residential building code, the 

State is required to submit to the 

Secretary, in writing, the reasons, which 


srobinson on DSKHWCL6B1PROD with NOTICES